This is a trial to determine whether the plaintiff and defendant (hereafter referred to as the parties) were married in India. The procedural history has been set forth at length in an order dated February 26, 2008. Said trial commenced on July 9, 2007 and continued on the following dates, to wit: July 10, 11, and 12, 2007; October 2,3,4,10,and 11, 2007; November 27, 28, and 29, 2007; and January 28, 29 and 31, 2008. Both parties testified at the trial. The intervenor also testified. The plaintiff called three fact witnesses and one expert witness. She also called the defendant as a witness on her direct case. The defendant presented testimony from six fact witnesses and one expert witness. At the conclusion of the trial, the Court reserved decision and afforded time to counsel for the parties and the intervenor to submit written summations and memoranda of law. The time for post trial submissions was extended on consent until June 30, 2008. The plaintiff's post trial submission was marked into evidence as Court exhibit XIX. The defendant's post trial submission was marked into evidence as Court exhibit XVII. The intevenor's post trial submission was marked into evidence as Court exhibit XVIII. Pursuant to a written stipulation dated May 19, 2008, certain Supplemental Security Income (SSI) documents were received in evidence. A number of Telugu interpreters provided translation services during the course of the trial.

Trial Testimony

The plaintiff testified as follows: she was born in the Guntur District in India in a small village where she grew up; she dos not know the year of her birth; she does not know if she had a birth certificate; to her knowledge it was not common practice to obtain a birth certificate; her village lacked electricity, gas and running water and was dependent on agriculture; cooking was done with firewood; people worked with their bare hands; there were only one or two cars in the village; her parents did farming; they grew rice and tobacco; she had a sister; her father's mother [*2]lived with her family; her parents began to plan her marriage when she was in the seventh grade; she thinks children in eighth grade would have been fourteen or fifteen years old; her marriage was arranged for her; two or three months before the marriage, her parents discussed the arranged marriage to the defendant with her; they told her they knew the defendant's parents; she consented to the arranged marriage; her parents went to speak to the village priest, Mr. Subbaiah, to select a date for the ceremony; her parents and the defendant's parents made the arrangements; her aunt ( her father's sister) was married to the defendant's father's elder brother; this aunt helped arrange the marriage which was to be celebrated in the defendant's parents' home; she thinks she was fourteen or fifteen at the time of the marriage; she thinks the defendant was seventeen or eighteen at the time of the marriage; she thinks the defendant was in college when the parties married and he went to medical school one year later; the marriage ceremony took place on a date she could not recall, but believes was in or about 1952 between 8:00a.m. and 10:00a.m.; the day before the marriage, the defendant's parents gave her new clothes, three saris, flowers, turmeric powder and kumkum for her forehead; the day before the wedding, the elders came and blessed her; there were no cameras; about fifty people accompanied her palanquin; there was a village band; on the day of the wedding she sat at an elevated spot; there was a pandal (a structure like a tent); a priest did puja (prayer); the defendant put jaggery (a paste) on her head and she put jaggery on the defendant's head; the defendant put a mangalasutra (a chain with three knots) and black stones with a thread through them around her neck; her mother's brother gave her silver toe rings and a sari; the priest had the plaintiff and defendant throw talambralu (rice mixed with powder) over their heads; the plaintiff and defendant had to go around a saptahapadhi (a fire pit), after which the priest pronounced them husband and wife; there was a priest and an assistant priest at the wedding; after the wedding both parties' parents gave money to the priest; after the ceremony, there was a luncheon; before the marriage, her surname was G; after the marriage, she took the defendant's surname; in the evening the plaintiff and defendant were taken for a processional ride in a car; there was music; the day after the wedding, her family went to the defendant's parents' house for a feast; those who attended the feast blessed her; the plaintiff and the defendant spent three days in her parents' home after the wedding and then spent three days in the defendant's parents' home; the parties first sexual intimacy occurred during the three days after the marriage spent in plaintiff's parents' home; her parents told the people of their village the details of the wedding; the parties' first child, a daughter named Vijayalakshmi, was born in 1955; this child died in 1986; in 1986, the plaintiff was in India and the defendant was in the United States; plaintiff received a telegram advising her of the death and the parties' son and daughter advised the defendant of the death by telephone; after the marriage, she lived in the defendant's father's home for five or six years; it was customary for wives to live in their husband's family's home; she lived with the defendant's father, her aunt (the father's elder brother's wife), a male servant and two grandchildren of the aunt; the defendant would come home from school on weekends and holidays; she worked on the land and in the household of the defendant's father; she gave birth to two children during this time; the parties second child, named R, was born in a hospital on August 23, 1958; the defendant's father paid the cost of defendant's medical school; the defendant graduated from medical school in 1958; she did not attend the graduation ceremony; the defendant then went to work in a hospital in Podili and the plaintiff and two children joined him there; the parties and their children lived in a house near the [*3]hospital in Podili for almost two years; plaintiff became pregnant, returned to Guntur to give birth, and returned to Podili; the parties moved back to Guntur in 1961 while the defendant pursued a masters degree; they lived in Guntur in a rented house until 1966; their fourth child, S was born in Guntur on September 3, 1961; the parties' oldest child was sent to school in the village in Kothareddy Palem in 1961; in August 1966, the defendant told her he was going to the United States for two or three years to study; he told her to remain in Guntur and that he would return when he completed his studies; he transferred a bank account from his name to her name and told his father to give her fifteen bags of rice and 1000 rupees a year to support her and the children; the parties never lived together after that; the defendant returned to India and visited the children six or seven years later in or about 1972 or 1973, but did not speak to the plaintiff; she has used the defendant's surname since the marriage ceremony; the defendant's father died in 1979; she attended the funeral service but the defendant did not; it is customary for a son to put his father's body into the fire for the cremation and for the son's wife to light the lamp; the parties' son put his grandfather's body into the fire and plaintiff lit the lamp.

At the conclusion of her testimony the plaintiff placed the following documents into evidence, to wit: her current passport showing a date of birth of September 18, 1948; and a permanent residency card reflecting her surname is the same as the defendant's surname.

During cross examination by the defendant's attorney, the plaintiff testified to the following: she came to the United States in 1994 after gaining entry with the assistance of the parties' daughter, P who lives in Michigan; she currently lives with this daughter and has done so since she came to the United States; P is a psychiatrist; P is married; the parties' son also lives in Michigan; plaintiff signed a retainer agreement but P paid the retainer fee and additional fees; the plaintiff does not know how much; plaintiff acknowledged that her original complaint recited that she was married in 1955; she amended her complaint so as to allege that the parties married in the early 1950s because she did not know the date; when she was advised that the defendant first attended medical school in 1953, she knew she had been married a year earlier in 1952; the birth date on her passport and certification card is incorrect; she provided the incorrect birth date because she did not know her birth date; she attended maybe forty to fifty weddings in her village, some before, some after her own marriage; she does not have a marriage certificate; she spoke to the priest who assisted at her wedding to obtain his affidavit in connection with this case; between 1966 and 1969 she wrote letters to the defendant about four or five times; she did not write to him after 1969; in or about 1970 she received a letter that led her to believe that the defendant had married another woman; in 1972, when he visited, the defendant told her he was married to someone else; the parties attended a wedding of one of the aunt's grandsons at the defendant's father's house, as a couple.

During cross examination by the intervenor's attorney, the plaintiff testified as follows: plaintiff is in the United States as a permanent resident; her son helped her fill out the paperwork to obtain a permanent residency card (green card); on the form, she indicated that she was married and that her husband resided in New York; she was not asked why she was not living with her husband; she is receiving social security of $360.00 a month; her daughter helped her [*4]fill out forms to obtain a social security card; she is not sure what the social security benefits are for; she has asthma, had knee surgery, wasn't working, couldn't speak English and needed money for prescription medication; she also receives Medicaid; since coming to the United States in 1994, she has visited India; she could not recall how long she remained in India during these visits; after reviewing her passport, she recalled returning to India after she had been in the United States for one year and she remained in India for a year at that time; her children purchased a house for her in India and she stays there when she is in India; she owns a house in her name in Guntur and there was a house built for her, not in her name, in Kothareddy Palem; she doesn't recall if she received social security benefits during the year she was in India; she returned to the United states on September 1, 2006 and stayed for four months before again returning to India; she came back to the United States on November 3, 1997 and returned to India in March 1998; she lived in India from March 1998 until the year 2000 (two years and three months); sometimes her daughter sent her social security checks to India, sometimes her daughter held the checks for her until her return to the United States; her social security checks are now deposited directly into her bank account; she was in India between September 26, 2001 and March 13, 2002, and from March 30, 2003 through September 14, 2003; she has not left the United States since September 14, 2003; she thinks the last time she went to Kothareddy Palem was in 1995; the husband's father's grandchildren are living in the house in Kothareddy Palem; in 1970 she purchased some land in Kothareddy Palem which she leases to farmers at 10,000 to 15,000 rupees ($2222.22 to $3333.33 American dollars); her son uses these funds to pay taxes; the house in Guntur was purchased in 1992; she lived with the defendant for fourteen years; their marriage took place during the summer time; about two hundred people attended the wedding; guests stayed at both parties' parents' homes and neighbors' homes; about forty people stayed at the defendant's father's house; that house did not have running water, toilets or electricity; some guests stayed in a tent outside the house; guests slept on the floor; the plaintiff has a bank account in India with defendant's name on the account; the parties' son writes checks and plaintiff signs them; the plaintiff does not know how much is in the account, but she told the Social Security Administration about the account; the parties' son lives in the Guntur house full time; he deposits funds into her bank account and pays the bills on the house using her account; she did not attend the defendant's college or medical school graduations or any college or medical school functions; she did attend one or two weddings with him in their home town; she attended her father's funeral, went shopping, to the movies and to weddings with the defendant; the defendant is her cousin; the parties never spoke to each other before their marriage as is their custom.

The plaintiff's witness, Venkatappa Gade Reddy testified as follows: he is 78 years old; he is married; he has six daughters; his trip to New York to testify at the trial was the first time he ever left India; he went to school in Guntur; he has a bachelors degree in literature; he has held positions at Guntur Student Minister at Hindu College, was Chairman at Hindu College, was a councilman in Guntur and Mandrass; a court officer in Mandrass, Chairman and Vice Chairman of the India Tobacco Growers' Association, a Vice Chairman Agriculture of Panchayti Senti ( a municipality) and a Land Office Director of Tirietaka; he was a Leader in Kothareddy Palem between 1981 and 1986; he knows both parties very well; the plaintiff lived about six kilometers and the defendant lived about a half kilometer from him; he attended the parties' [*5]wedding at the defendant's father's house; he was 23 years old at the time; he was invited by the village elders; the witness was married in 1954, two years after the parties; the parties' wedding was performed according to Hindu tradition directed by a priest; there was a puja (prayer) ceremony; the mangalasutra was placed around the bride's neck; the ceremony took place by the holy fire; the parties were declared as one by the priest near the holy fire; the parties took seven holy steps together and declared that they were one; saptapati was an accepted custom in the community for all weddings; the priest was Subbaiah, the village priest; there were three assistant priests; over two hundred people attended the wedding; the bride was thirteen or younger and the groom was nineteen; the parties then lived at the defendant's parents' house in Kothareddy Palem; the witness visited them there; the parties left when the defendant finished medical school; he visited the parties after they moved; he went to see the defendant for medical advice; the parties' son paid for his flight to New York but he was not paid to testify.

On cross examination by the defendant's attorney, the witness testified as follows: he discussed the case with the parties' older son in May 1996; the conversation took place in the witness' home in the village; he signed a piece of paper; a typist in Guntur typed the paper; the parties' son took the paper to a notary; he attended other weddings in the 1950s; another couple got married the same day as the parties, later in the afternoon; he attended both; Uguralla Subbaiah was one of the assistant priests at the parties' wedding; the plaintiff had her first child while living in the defendant's father's house; the wedding was in the summer, sometime between April and June; he visited the parties two or three times in 1961 and 1962 ; the defendant wasn't his doctor, he was his friend.

On cross examination by the intervenor's attorney, the witness testified as follows: in 1952 he was a student at Hindu College in Guntur; Guntur was about fifteen kilometers from the village; he traveled by bus and walked two kilometers after the bus to get to school; he believes he was home for the summer holiday at the time of the wedding; he lived about half a kilometer from each of the parties; the plaintiff was the same age as his sister; it was common for boys and girls under sixteen years old to marry in his village; the parties lived about 100 yards from each other; in 1952, the defendant's father's house was made of stone with a tile roof; there was no electricity, no indoor bathrooms, no cooking facilities; they used well water; the witness is three years older than the defendant; he saw the parties drive by his house the night of the wedding in the procession; the parties had two children while they lived with the defendant's father, first a girl, then a boy; after the parties moved to Guntur, they had two more children.

On redirect, the witness clarified that his discussion with the parties' son took place in May 2006; on the same day, he went to the notary and signed the document; he is a distant relative to both parties; there were no records kept of weddings in the 1950s.

The plaintiff called Gurrala Vengala Reddy as a witness who testified as follows: he is 77 or 78 years old; he lives in India; he attended school through the third grade; he does farm work; he is married and has two children; the plaintiff is his uncle's daughter; he has known her since she was born; he has known the defendant since he was born; he lived next door to the plaintiff [*6]and about 250 yards from the defendant; he is a distant relative to the defendant; he attended the parties' wedding at the defendant's father's house sometime between 1950 and 1955; there was a priest and two or three assistant priests at the wedding; the parties lived in the defendant's father's house for six or seven years; he accompanied the processional on the evening of the wedding; the parties left the village and went to Guntur when the defendant got a seat to study medicine in Guntur; he was contacted by the parties' son about a year ago; he submitted an affidavit; it was read to him by the parties' son and two of his children; the defendant came to visit him last year in the village; he offered the witness 100,000 rupees to sign an affidavit stating that the parties were never married; the witness responded that he would maintain discipline and tell the truth; the parties' son paid for his airfare to New York.

On cross examination by the defendant's attorney, the witness testified as follows: he was married when he was 23 years old; he's not sure what year he was married; he attended many weddings; there is always a priest and pooja; the plaintiff is his uncle's daughter; the parties drove in a car during the wedding; he was married before the parties were married; he was married by the same priest; that priest is deceased; there were two other people present when the defendant offered him money but he doesn't know their names; his marriage was five or six years before the parties' marriage; his elders told him he is now 77 or 78 years old.

On cross examination by the intervenor's attorney, the witness testified that he does not recall the month or day of the week of the parties' wedding; it was early in the morning, at 8:00a.m.; he went at 7:00a.m.; at the time he was a student in the village school; the defendant was a student in Guntur and would go back and forth between the village and Guntur.

The plaintiff called the defendant as a witness. He testified on her direct case as follows: the plaintiff is the mother of his four children born in 1956, 1958,1959 and 1961; he does recall where in India the children were born; he was told he was born on July 31, 1934; he does not have a birth certificate; he lived with the plaintiff for a few years; there was never any wedding ceremony; he came to the United States in 1966; he wrote letters to the children and an uncle after 1966 and visited India, but never lived there again; he denied ever asking the children for help in getting a divorce from the plaintiff.

Two letters the defendant wrote to his son and three letters he wrote to his uncle were received in evidence.

Plaintiff's exhibit 5 is a letter in English written by the defendant to the parties' son dated June 21, 1981. It reads, in relevant part, as follows: " You have done very well in education. I wish all of you will continue to do the same in future. The opportunities are better in this country or any west European country compared to India. One can be optimistic of having a better start in life. To migrate to the USA, the conditions are to restricted. I may be of value in this aspect. To enable me to do the kind of work I need to have legal divorce papers from your mother. This is a must before I can even proceed any processing. I want you, along with your sisters and mother etc to discuss and let me know your decision. We have been separated over 15 years and [*7]I am sure you all know that union will never happen. This is the only logical and moral way to give me an opportunity to do something worthwhile for you."

Plaintiff's exhibit 6 is a letter in English written by the defendant to the parties' son dated August 7, 1982. It reads, in relevant part, as follows: " They are very ... strict in allowing anybody to migrate here. I can try and vouch for you to help you migrating here-if you wish, only if I have proper divorce. I don't care what the customs are, I can only tell you. I have been explaining this fir years since 1978."

Plaintiff's exhibit 7 is a letter in Telugu written by the defendant to his uncle dated July 8, 1974 and a certified English translation. It reads, in relevant part, as follows: "I must have written a hundred thousand times that I have no connection whatsoever with her (the plaintiff). I have also written to you to arrange a divorce. You have not been able to do anything in the matter. If it can be done, it's certainly good for me."

Plaintiff's exhibit 8 is a letter in Telugu written by the defendant to his uncle dated October 3, 1968 and a certified English translation. It reads, in relevant part, as follows: " I don't wish to come back now. Whether I come back at all is a question. ...There is worry in her mind (the plaintiff). But along with this, there is a ray of hope. She doesn't have to worry about the expenditure involved in rearing four children. Of course, no one can wipe away her sorrow, that the kids have their own father but that she doesn't have her husband. You are younger than I am, yet I feel like asking you to forgive me, if possible."

Plaintiff's exhibit 9 is a letter in Telugu written by the defendant to his uncle dated July 31, 1969 and a certified English translation. It reads, in relevant part, as follows: "There is no point of my coming back. If money and other amenities are needed now, think about them and write to me so that I can send the money. When such an opportunity is available, there is no use feeling sorry after losing it. As I wrote in my earlier letter, discuss it with her and write to me. I can't do anything more than this. I am not saying what I have done is justice. You may call it repentance or alimony. The debt has to be repaid by me. I am willing to repay it. I hope the money will be of some help toward the welfare of the children."

When being cross examined by his own attorney, the defendant testified as follows: his testimony during his examination before trial (pages 46 and 47) should not be interpreted to mean that he had conceded he was married to the plaintiff, rather, he lied to his children about being married to their mother; he didn't want the children viewed as illegitimate or looked down upon in their community; the plaintiff never requested money from him after 1966; he supported his children through college and medical school.

The parties' daughter, Dr.P B, testified as follows: she was born in Guntur on June 13, 1960; she got married in 1986 and came to the United States; she is a psychiatrist employed by the Henry Ford Health Center and she maintains a private practice; she went to a public medical school for free in India; the defendant paid the cost of her college, about $500.00 for two years; [*8]her father visited India in 1973,1976 and 1983; in1983, she asked the defendant to come to India because her sister had attempted suicide; during this visit, he asked her if there was anything new about his letter requests to obtain a divorce from her mother; in 1987 and 1988, she met with the defendant in Boston and he again asked her if she had been able to persuade her mother to give him a divorce; she met with him in Michigan in 1993 and he asked the same question again; she met him in an airport in 1995 on her way to Paris and he made the same inquiry; he asked her repeatedly over the years to persuade her mother to give him a divorce; she assisted her mother in filling out the application for social security benefits; the Social Security Administration was advised when the plaintiff was in India for any extended period of time and plaintiff did not receive benefits during those periods; her paternal grandfather died in 1979 and she attended the funeral.

On cross examination by the defendant's attorney, the witness testified as follows: as of October 4, 2007, she had paid over $200,000.00 in legal fees on the plaintiff's behalf; other expenses, such as travel expenses, were paid by herself and other family members; the plaintiff has told the witness that she will repay her with proceeds from this litigation; she spoke with her mother once a week or once a month in the ten years prior to 1994; she asked her mother about the date of her marriage before the plaintiff came to the United States in 1994 because she needed that information to make the arrangements to enable the plaintiff to come to this country; the defendant's uncle had shown her and others letters written by the defendant relating that he had married another woman; she was aware of this from the age of ten; the plaintiff also read the letter and was aware the defendant was living with another woman; she has mixed feelings about her father because he is trying to bastardize his children; she and her siblings were looked down upon in their village because they grew up without a father; she attended college from 1974 to 1976 and for five and a half years of medical school.

On cross examination by the intervenor's attorney, the witness testified as follows: in 1999 she received a check from the defendant for $20,000.00 to buy a car for her younger brother; she found out in the late 1980s that she had a half brother; the half brother and one of her brothers attended the same medical school; she signed an agreement to guarantee payment of plaintiff's legal fees; she brought the plaintiff to the United States as her dependent; she doesn't recall any money the defendant may have sent her over the years; her legitimacy is at stake in this litigation.

The plaintiff called, Iqbal Ishar, a partner in a new York City law firm, as an expert witness. The witness testified as follows: prior to the enactment of the Hindu Marriage Act in 1955, Hindu marriages in India were performed according to Hindu law laid down in the scriptures known as manu smriti as interpreted by a religious scholar named Mr. Manu; the religious marriage rituals were not taught in schools but were handed down by parents and families; Hindu law is very diverse; it prescribes two mandatory ceremonies but allows people to follow the rights and ceremonies that are accepted in their family, community and village; there is abundant case law in India relating to whether or not a marriage took place; there are caste customs, regional customs and family customs; people can marry without performing the two [*9]otherwise required ceremonies, if their customs permit; throughout India, one of the ceremonies, saptapati ( the bride and groom take seven steps around a holy fire) completes the marriage regardless of whatever else is done or not done; in the state of Andhra Pradesh in 1952 there were two essential requirements to enter into a valid marriage; the first stage of a marriage ceremony is the holy fire started by a priest as he recites scriptures; the parties put different things into the fire such as rice, cumin seeds, sandalwood or saffron; the second stage is the seven steps taken by the bride and groom around the fire; this is called saptapati; there were no means in India to record a marriage prior to 1955; since 1955 a marriage certificate can be requested but few people request one; to obtain a marriage certificate, the spouses and their parents bring photographs, invitations and other proof that a wedding took place to a registrar's office and swear under oath that the wedding took place; people today request marriage certificates for immigration purposes; in rural areas today there are no birth certificates issued; they are available in metropolitan areas but most people don't bother to get one; if the saptapati took place, under Hindu law, a marriage would be legitimate regardless of the age of the bride and groom; the Child Marriage Act of 1929 made it a criminal offense ( 15 days in jail and a fine of 200 rupees) for the groom, the priest and family members to arrange child marriages; there is no criminal penalty for the bride; the statute had a one year statute of limitations; even if there was a prosecution, the marriage would not be voided; under Indian law there is a strong presumption that every child is legitimate and a strong public policy against voiding marriages; there is a strong policy against concubines and the concubine system; there is a marital presumption for a couple who cohabitate and were treated by the community as if they were married; section 114 of the Indian Evidence Act, allows a court in India to draw a presumption given a common course of events and the actions of the parties; bigamy is a crime in India; prior to 1955, Hindu men were permitted to have more than one wife; a second marriage entered into after 1955 would be invalid and an offense under the Indian Penal Code sections 494 and 495 and section 17 of the Hindu Marriage Act; divorce was not permitted under Hindu law; after 1955, divorce was permitted.

The witness testified on cross examination by the defendant's attorney as follows: he is 56 years old; he left India in 1987; there are different customs for weddings in different regions of India as well as different customs for different religions; the plaintiff was born into the Sudra caste; in 1952 in India, saptapati was the predominant form of marriage; saptapati was not routinely practiced by certain castes in 1952 in the Telangana area of the state of Andhra Pradesh; saptapati was not routinely practiced by certain castes in 1952 in the south of India; when people in India move to a new region, they take their customs with them; the scriptures prescribe two elements of a marriage, invoking the holy fire and the seven steps around the fire, but the custom and rites of the parties would prevail even if the elements required by the scriptures were not performed; the parties' marriage is alleged to have taken place in the district of Guntur; the witness did not know the name of the village; the parties resided in the Andhra region of the state of Andhra Pradesh in 1952; in the Andhra region of the State of Andhra Pradesh, where the parties lived, in 1952, homen (invocation before the fire) would not be required, but could be carried out; saptapati would have been carried out; when a court in India decides whether there was a marriage, it hears testimony on the community's customs from time immemorial and [*10]determines whether these customs were followed; there is no required element; the requirements are established by custom and practice; jaggery (paste on heads) is a custom in Andhra Pradesh; if its part of the custom, it has to be followed; the use of a curtain separating the bride and groom was customary in most weddings in Andhra Pradesh in 1952; courts decided on a case by case basis whether a marriage was valid even if not every custom was followed; regardless of whether other customs were followed, if saptapati was performed, the marriage is valid; the witness was not familiar with the term aroondhati; it is a custom during which the parties feed each other and go look at the stars; aroondhati was a custom in the region where the alleged marriage took place in 1952; parties getting married can pick and choose which customs they wish to be performed at their wedding; if the parties have lived together as husband and wife and had children and there is some proof that customary ceremonies were performed, a court in India will find a valid marriage; there is a presumption in Indian law that a court has to find that the customary ceremonies were validly performed; there is no common law marriage in India; there is a presumption of marriage to avoid illegitimacy and the system of concubine; the putting of rings on the toes of the bride was an important custom in 1952 in the region where the alleged marriage took place; before 1955 cousins were permitted to marry.

During cross examination by the attorney for the intervenor, the witness testified as follows: for a wedding to be valid, the customs and religion of the parties must be carried out even if they relocate to a region with different customs; the parties are of the fourth cast level; in the parties' village of Kothareddy Palem, the custom of the Sudra caste essential to marriage was jaggery paste on the top of the head, not the forehead, kumkum (also called vermillion, the red thing on the forehead), the priest pointing out a star to the bride and groom, and saptapati; the community is a sub caste of a caste; the parties are of the Reddy community, a sub caste of the Sudra caste; the village of Kothareddy Palem is part of Guntur; the requirements of a wedding for the parties would be kumkum, jaggery, mangalasutra (necklace) and saptapati, however saptapati is sufficient to make the marriage valid; some families include homen, some do not; the priest must say certain words as the bride and groom take the seven steps around the fire, although there can be a valid marriage without a priest; in some communities the bride and groom hold hands and walk around the fire; in other communities the bride's father knots the bride's cloth and the groom's cloth together; saptapati is sufficient to validate a marriage without a homen; a marriage could be ruled valid if saptapati not properly performed if other customs and rituals were performed; the jaggery and mangalasutra would validate a marriage without saptapati; in1952, the age of marriage was fifteen for a female and eighteen for a male; the Child Marriage Restraint Act of 2006 makes all marriages voidable but would not subject the alleged marriage in issue herein to be declared null and void; there is a presumption of marriage if the marriage is alleged by either party or if the parties hold themselves out to be married or they have been living together or have children together and are considered by the community to be married; he never attended a wedding in southern India where the subject wedding is alleged to have taken place; he was paid to be a witness in this case.

On his direct case, the defendant testified as follows: he never married the plaintiff; he first saw the plaintiff and became aware of her in 1952 or 1953; she was a frequent visitor to his [*11]father's house because her aunt lived with the defendant's father; she was helping her aunt who was ill; he would see plaintiff when he came home from college; he began a romantic relationship with plaintiff in 1953 when he was in his first year of medical school; the medical school was in Guntur; he was first intimate with the plaintiff in 1953 or 1954; he was nineteen at the time and he thinks the plaintiff was fourteen or fifteen; he never proposed; she never asked him to marry her; their first child was born in 1955 while he was living in Guntur and plaintiff was living in the village with her parents; he only learned he was a father three or four weeks after the child was born; his father and plaintiff's aunt discussed marriage to the plaintiff with him; he saw the baby three or four months after she was born when the plaintiff brought her to his father's house at a time when the defendant was visiting; their second child was born in 1958; at that time he was still living in Guntur and she was still living in the village; he moved to Podili and plaintiff joined him there in 1959; their third and fourth children were born in 1959 and 1961; the parties never discussed marriage; he never socialized with the plaintiff after the birth of any of the children; he first began supporting the plaintiff and children in 1959 when he began working; before that, his father and plaintiff's parents supported them; after 1960, he moved back to Guntur; plaintiff and the children went to her family's village and a few months later plaintiff joined him with the children in Guntur; he decided in 1959 that he and plaintiff were so incompatible that the marriage could not go forward; in 1965, he moved out and took up residence a mile away; he continued to support the plaintiff and children; he met the intervenor in 1963 and proposed mid 1965; he married her on May 23, 1966 in Vijayawada; he left India in 1966; he visited the plaintiff and children the day before he left and gave the plaintiff about $1000.00; he continued to provide support for his children including medical school; in 1983 his older daughter became ill and he returned to India; he met his younger daughter in New York in the late 1980s but did not discuss the plaintiff; he maintained contact with his daughter through 2006; he visited her in Michigan; he never met her at Newark Airport; he first learned that the plaintiff was living in the United States when he was served with divorce papers in 2006; he wrote letters to his uncle in India concerning the welfare of his family and also wrote to his children; although he acknowledged that a letter to his son, Ramgopal, dated June 27, 1981 (exhibit 5) states he is requesting help in obtaining a divorce from the plaintiff, the defendant explained that he didn't want the children to come to the United States because he had a family here so he told them they could not come to the United States until plaintiff agreed to a divorce; regarding a letter to his uncle (exhibit 7) the defendant stated that the translation was incorrect and that the letter does not refer to a divorce but to a separation, however, the court interpreter's note (Court exhibit II) confirmed that the word in issue was divorce; he never discussed the plaintiff with his younger daughter; he never offered money to Vengala Reddy; Venkatappa Reddy was wrong when he said he attended a wedding between the parties because the plaintiff would have been only thirteen or fourteen years old at the time, too young to marry.

On cross examination by the plaintiff's attorney, the defendant testified as follows: he grew up in Andhra Pradesh; the plaintiff grew up in the same village; they are both Hindu; the majority of marriages in the 1950s were arranged according to Hindu custom; his father and plaintiff's aunt suggested to him that he marry the plaintiff after their first child was born in or about 1955; he concedes that in his deposition he testified that the suggestion that he marry the [*12]plaintiff may have occurred prior to the birth of the child; his father was aware that he and plaintiff were intimate; at one time the plaintiff's aunt was married to his father's elder brother, so plaintiff's aunt was also his aunt; this aunt told him plaintiff was pregnant a few months before the child was born; he told his father he wasn't ready to marry; he wanted to first finish medical school; it was not uncommon for an unwed mother to reside with her parents; after the second child was born, the plaintiff moved into the defendant's father's house for about a year before joining the defendant in Podili; he lived with the plaintiff, as a couple, in Podili for about a year and a half and lived with her in Guntur for about four or five years; living with plaintiff was purely physical; they never introduced themselves as husband and wife; he transferred assets after learning the plaintiff had commenced a divorce action; he returned to his village with two guides in 2006 to try to get affidavits; a priest who signed an affidavit at the defendant's behest later recanted; he visited his children in India three or four times between 1966 and 1981.

On cross examination by the plaintiff's attorney, the defendant admitted making the following statement at his deposition on June 29, 2007, "...after 1965 I secured another apartment outside because it was never going any longer together. It was extremely difficult to have any kind of compatibility after the second child. We started living by ourselves. Until then, I never realized what a marriage is all about."

On cross examination by the intervenor's attorney, the defendant testified as follows: he told his father he couldn't afford to get married and would consider getting married after he finished medical school; his father and plaintiff's aunt were both widowed and lived in a "de facto" marriage; he and the intervenor met with an estate planner in 2005; he transferred their home to her in furtherance of estate planning.

Dr. Krishar Singh testified on behalf of the defendant as follows: he is a physician; he's been in the United States since 1965; he's known the defendant since 1951; they were classmates in college for seven years; they were roommates between 1951 and 1953; they started medical school in 1954; he was never invited to attend a wedding; he visited the defendant at his father's house once a month between 1951 and 1954 and never saw the plaintiff; he and the defendant did not discuss social matters.

On cross examination by plaintiff's attorney, the witness testified as follows: he grew up in Guntur; he went to Hindu College in Guntur; the defendant was six months ahead of him in medical school; he visited the defendant's father's home in the village of Chebrou ( not Kothareddy) three or four times; when counsel pointed out that he had testified on direct to going once a month for three years, the witness responded that he didn't remember; he never met the plaintiff; the defendant never told him up to the date of the trial that he had any children other than one son; it was not common for a couple to live together with children and not be married; the defendant is the only person he knew in such a situation.

Vishnuvardhan Rao Vijayawnda testified on behalf of the defendant as follows; he is 72 years old; he's known the defendant since 1951; they were classmates in Hindu college; he kept [*13]in contact after the defendant went to medical school; he and the defendant socialized; they discussed politics and sports; the defendant attended the witness' wedding to the intervenor in 1965; he did not attend any other wedding of the defendant.

On cross examination by the plaintiff's attorney, the witness testified as follows: he visited the defendant's village three or four times between 1952 and 1953 and the only people living in the defendant's father's house were the father and an elderly woman; the defendant lived alone in Guntur before coming to the United States; the witness is a distant cousin to the intervenor; he is staying at the intervenor's home while staying in New York.

Gopala Krishna testified on behalf of the defendant as follows; he is 73 years old; he is several years older than the defendant; he has known the defendant since 1951; he attended pre-med and medical school with the defendant; he saw the defendant every day during medical school; they discussed politics, sports and their studies; he was not invited to attend any wedding involving the defendant in 1952; the defendant attended his wedding in 1955; during summer vacation he visited the defendant at defendant's father's house and did not see the plaintiff; in 1966 he was working in a surgical unit in Guntur with the defendant.

On cross examination by plaintiff attorney, the witness testified as follows: he visited the husband's father's house once in the summer of 1954 and once in the summer of 1955; the defendant lived with a woman and four children; in 1961, the defendant told him he had four children and was living with a woman who was a relative and the mother of his children; he did not attend any classes with the defendant prior to medical school; the witness lives in India and paid his own airfare to travel to New York.

Basavapunnaiah K. testified on behalf of the defendant as follows; he is 75 years old; he resides in India; he is a physician; he has known the defendant since 1946; they were school mates; the defendant is two years younger than the witness; he was not invited to any wedding involving the plaintiff and defendant; the defendant attended his wedding in 1951; the witness attended the defendant's wedding to the intervenor; he and the defendant talked about sports and medical school; they did not talk about family; he found out in 1961 that the defendant had children.

On cross examination by the plaintiff's attorney, the witness testified as follows: he first met the defendant when the defendant was in eighth grade and the witness was in tenth grade; he visited the defendant once in the late 1940s and once in the mid 1950s; he did not attend the defendant's father's funeral.

Hanimi Reddy testified on behalf of the defendant as follows: he was born in Kothareddy Palem on July 4, 1940; he lived there until he graduated from high school in 1956; he has known the defendant since 1947; the defendant is about six and a half years older than the witness; both he and the defendant lived in Kothareddy Palem in 1952; he doesn't know if the defendant got married in 1952; the witness got married in 1971; he attended weddings in Kothareddy in the [*14]1950s; he did not know what a saptapati was; he does not recall ever seeing a bride and groom walking around a fire; a kanyadan ceremony where the bride washes the groom's feet was performed at every wedding ceremony he attended in his village; he is familiar with the jaggery ceremony (headpaste); he is familiar with the aroondhait ceremony (looking at the stars); in his village a curtain is placed between the bride and groom until the jaggery; he is familiar with the mattelu ceremony performed at all weddings in his village where the bride's maternal uncle or aunt places toe rings on the bride; he attended forty to fifty weddings in his village.

On cross examination by plaintiff's attorney, the witness testified that he did not know the defendant had any children; he is familiar with mangalasutra and kumkum ceremonies; he told the Court that he did know what a saptapati was as he has seen sapatapati ceremonies in the movies. On cross examination by the intervenor's attorney, he testified that he had not attended any wedding of the defendant or the plaintiff.

Udumula Nagendramma testified on behalf of the defendant as follows: she lives in Kothareddy Palem India; she moved there when she was five years old; she is presently 70 years old; she knew both parties as they lived close by each other; she was married in a Hindu ceremony in 1950; she thinks she was thirteen years old at the time; the defendant lived two houses from her house and the plaintiff lived one house from her house; the plaintiff and defendant lived together in the defendant's father's house; both parties left the village; the defendant is 15 or 20 years older than she; the defendant was thirty years old at the time of her wedding; when the plaintiff left the village she had two children; when plaintiff returned to the village she had four children.

On cross examination by the plaintiff's attorney, the witness testified that she was approximately seventy years old but did not know her date of birth; the witness acknowledge that her passport indicated her date of birth is January 15, 1943 and that if same was correct, the witness would have been seven years old if she married in 1950; the defendant paid for her airfare and she is living in the defendant's house while in New York.

The defendant's expert witness, an attorney, testified as follows: he is 69 years old; he resides in India; he has attended about 500 marriages; the plaintiff's expert was incorrect when he testified that the parties lived in the Andhra region of the state of Andhra Pradesh as in 1952; there was no such region; prior to 1955, in India there were only customs, writings and decisions from various courts on the issue of the validity of marriages; in 1955, the Hindu Marriage Act was enacted; marriage is a Hindu sacrament; the existence of a marriage must be demonstrated by strict proof in a case where one party would face bigamy charges if the validity of a first marriage is sustained; the measure of proof is synonymous with beyond a reasonable doubt; under Indian law, in determining whether a marriage is valid, a court must decide whether the elements of the marriage conform to the customs where the parties come from; the witness is a teacher of the elements of marriage; there are different customs for different regions; there are also different customs for different classes ( castes) of people; the Act of 1955 codified the customs of the various castes; the witness is familiar with the marriage customs of Andhra [*15]Pradesh because he has attended weddings there and has read court decisions relating to weddings in that region; the first element is kanyadam - the bride's father says to the groom, "this is my gift;" the second element is kayagamam-the bride is brought to the alter by a maternal uncle or other relative; two priests hold a curtain between the bride and groom and the priest puts paste on their heads; the third element is mangalasutra (necklace with knots); the fourth element is aroondhati (gazing at the stars).

On cross examination by the plaintiff's attorney, the witness testified as follows: he has no personal knowledge of the marriage customs in 1952 in the region where the parties lived; he had never been to the village of Kothareddy Palem; saptapati (seven steps around the fire) is not customary with the Sudra caste but is sometimes performed in Kamma caste weddings; Kamma is a sub caste of the Sudra caste; even if saptapati was the custom and it was performed, it would not in and of itself be sufficient to establish that a marriage took place; under section 16 of the Hindu Marriage Act, children are considered as legitimate even if the marriage was invalid; after being shown a decision rendered by a court in India, the witness acknowledged that saptapati is required in the Kamma community to make a marriage valid; the parties were members of the Kamma sub caste; Telengama is a region in Andhra Pradesh; Telengama did not exist in 1952; Kothareddy is a village located in the state of Andhra Pradesh; in 1952, it was located in the state of Madras and was part of the region of Andhra; it was not so uncommon in India in the 1950s for a man and woman to live together and have children not be married, however, it would be very unlikely that a woman would take the man's surname if they were not married; only a married woman would wear a mangalasutra; a procession through the village known as uragimpu is common in Andhra Pradesh; the defendant paid for his airfare and he is staying at the defendant's house, but he was not paid for his testimony; two authoritative textbooks relied upon by the witness and received in evidence (Court exhibits VI and VII), refer to presumptions regarding the legitimacy of marriage.

On cross examination by the intervenor's attorney, the witness testified as follows: he lived all his life in Andhra Pradesh except when he went to school in the United States; he attended many weddings and never saw a wedding with a seven step ceremony; the Supreme Court of India is the highest court; the 1929 Child marriage Restraint Act prohibited marriage by a male under eighteen and a female under fifteen.

The intervenor testified as follows: she is a retired psychiatrist; she married the defendant on May 23, 1966 and came to the United States in July 1966; she has lived with the defendant continuously since their marriage; she has one son with the defendant. The intervenor's exhibit A8 is a marriage certificate signed on May 23, 1966 by a priest of Sree Durga Malleswara Swamy Temple in Vijayawada Andhra Pradesh.

Applicable Law [*16]

Prior to the enactment in 1955 of the Hindu Marriage Act, marriages in India were a sacrament solemnized in accordance with ancient Hindu customs and ceremonies passed down from generation to generation in accordance with Hindu scriptures, manu smriti, interpreted by a sage, Mr. Manu. Throughout India there are diverse regional, family and caste marriage customs and practices. Prior to 1955, the validity of an alleged marriage was decided by the courts. The Act of 1955 codified certain customs and practices. Section 7 of the Act of 1955 provides as follows:(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party. (2) Where such rites and ceremonies include the saptapati, the marriage becomes complete and binding when the seventh step is taken. Saptapati is customary in weddings of the Kamma sub caste of the Sudra caste in Andhra Pradesh (Manikyamma v Udrasapira Rao, Court exhibit V).

In determining whether a marriage has been solemnized, a court in India will take testimony on the relevant regional, family and caste customs from time immemorial and the nature of the rites and ceremonies performed during the marriage ceremony in issue. The law in India recognizes the difficulty in proving the specific rites that were performed many years earlier and accords a presumption of a properly solemnized marriage where parties have cohabitated for many years and had children together (Sobha Hymavathi Devi v Setti Gangadhara Swamy [2005] 2 SCC 244; Virendra Singh Pal v Kashibai, AIR 1998 MP 324; S.P.S. Balassubramanyam v Suruttayan AIR 1994 SC 13; Badri Prasad v Dy. Director of Consolidation and Ors., AIR 1978 SC 1557; Bal Reddy v Saraswathi [1994] [1] ALT 72 [F.B.]; see also, Mulla's Principles of Law 1994[ Court exhibit VII]; Hindu Law of Marriage and Divorce by Jaspal Singh [Court exhibit VI]).

As explained by the Supreme Court of India ( its highest court) in Badri Prasad v Dy. Director of Consolidation and Ors., AIR 1978 SC 1557, "A strong presumption arises in favour of wed-lock where partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin...(the claim) that long after the alleged marriage, evidence has not been produced to sustain its ceremonial process by examining the priest or other witnesses, deserves no consideration. If man and woman who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. The contention deserves to be negativated and we do so without hesitation."

As explained by the High Court of Andhra Pradesh in Bal Reddy v Saraswathi [1994] [1] ALT 72 [F.B.]), "...there is elaborate evidence...regarding the fact that a marriage took place in 1950 though she did not speak about the rituals that took place at the time of the marriage. According to her evidence, a few relations and her parents who attended the marriage are now dead.... There are numerous other documents which clinchingly established that the petitioner and (respondent) lived as husband and wife for a long time.... and two children...were born to them. There are records to show that in several papers (respondent) signed as father of these children. ...the Court rightly drew the presumption of marriage."

The authority relied upon by the defendant and the intervenor is misplaced. In Bhaurao [*17]Shankar Lokhande and Anr v State of Maharastra, AIR 1965 SC 1564, the court held that a criminal defendant could be held to have committed bigamy under section 494 of the Indian Penal Code 1860 only where the second marriage was proven by a strict burden of proof. In Surjit Kwar v Garja Singh, AIR 1994 SC 135 (Court exhibit I) the Supreme Court of India merely reaffirmed that there is no common law marriage in India absent some ceremonial wedding.

The defendant's and intervenor's reliance on New York State cases denying challenges to judgments on the grounds of laches are inapposite, as the plaintiff herein is not seeking vacatur of any judgment, and the defendant and intervenor, who purportedly married in 1966, did not change their position nor suffer any prejudice as a result of any delay by the plaintiff in seeking a divorce. Further, Indian case law cited herein above clearly provides that parties are permitted to adjudicate the validity of marriages performed forty and fifty years prior to the commencement of litigation.

The defendant's and the intervenor's argument that this Court should not recognize any wedding between the parties on the ground that either or both were too young to marry in 1952 lacks merit. As was set forth by this Court in its decision and order dated January 29, 2007, the validity or invalidity of a marriage will be determined by the laws of the country where the marriage took place. The Hindu Marriage Act of 1955 does not render the marriage alleged herein void or voidable, particularly as neither party, nor most of the witnesses, know their ages or dates of birth. Further, there are no New York State public policy implications in adjudicating the marital rights, if any, of the parties who are presently in their late 60s or 70s or older.

Decision of the Court

The plaintiff testified credibly that in 1952, she and the defendant participated in various Hindu wedding rituals including saptapati. A witness testified credibly on behalf of the plaintiff that saptapati was customarily practiced in their village. The parties are both of the kamma sub caste of the sudra caste. According to case law, saptapati is customarily practiced by the kamma sub caste in Andhra. Pursuant to the Hindu Marriage Act of 1955, saptapati is sufficient to solemnize a wedding. The parties lived together for many years in Podili and Guntur with their four children. The plaintiff was known by the defendant's surname. The defendant unequivocally recognized paternity of the four children. The defendant authored letters to his son and uncle seeking assistance in obtaining a divorce from the plaintiff. The defendant's and his witnesses' testimony was unworthy of belief. Several friends who testified on behalf of the defendant admitted they did not discuss personal or family issues with the defendant; said witnesses never knew the defendant had children with the plaintiff or met the children.

The plaintiff has proven by a preponderance of the credible evidence that the parties participated in a saptapati ceremony in 1952. This standing alone would be sufficient to find that they married in India in 1952. In addition, the Court finds, that the presumption of the validity of marriage, together with the other proof in the case, set forth at length herein above, [*18]unequivocally establishes the validity of the parties' marriage.

Accordingly, the Court holds that the parties were married in India in 1952.

The parties and the intervenor shall appear for a conference on July 28, 2008 at 9:30a.m. to schedule discovery on financial issues. This constitutes the decision and order of the court.

ENTER

Dated: July 18, 2008____________________________

Mineola, NYAnthony J. Falanga, JSC