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SHAKUNTALABAI & ANR versus L.V. KULKARNI & ANR

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1989 AIR 1359 1989 SCR (2) 70 1989 SCC (2) 526 JT 1989 (1) 607 1989 SCALE (1)737

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SHAKUNTALABAI & ANR V. L.V. KULKARNI & ANR [1989] RD-SC 101 (28 March 1989)

SAIKIA, K.N. (J) SAIKIA, K.N. (J) OZA, G.L. (J)

CITATION: 1989 AIR 1359 1989 SCR (2) 70 1989 SCC (2) 526 JT 1989 (1) 607 1989 SCALE (1)737

ACT:

Hindu Law--Udiki form of marriage prevalent among Li n- gayats--Ancient and unbroken custom of dissolution of ma r- riage-Whether prevalent--Proof of----Secti on 57--Customs--Judicially recognised by Court--Passes in to law--Proof unnecessary. Serai Udiki marriage among Panch a- masal Lingayats--Custom--Proof of.

HEADNOTE:

This is defendants' appeal arising out of a suit for part i- tion.

One Mallappa Kulkarni had two sons: Veerappa and Gura p- pa. Verrappa is survived by his son Lingappa. Gurappa, w ho was in the service of Railways married Channavva (fir st wife) on 16.2.28 but since she remained issueless, he rema r- ried in 1955 Chinnavva (second wife). From this marriage t wo daughters were born viz. Shakuntlabai arid Annapoornav a.

Consequent upon the death of his second wife Gurappa is sa id to have married Nilavva accroding to customary Udiki ma r- riage.

After retirement Gurappa settled permanently at Hub li where he had house, property etc. After the death of Gura p- pa, his first wife Channavva claimed l/3rd share in t he property. Having failed to get the same, she sold her 1/3 rd share to Lingappa. Lingappa also could not procure the 1/3 rd share from defendants by mutual negotiation. Thereupon he filed a suit for partition claiming his 1/3rd share in t he immovable properties left by Gurappa. In the suit he i m- pleaded Channavva (first wife) as Defendant No. 1 and t he children from 2nd wife as Defendant Nos. 2 & 3 and Nilla va was impleaded as Defendant No. 4, who was described as having illegal connections with the deceased Gurappa.

The Additional Munsiff, Hubli who tried the suit pass ed a preliminary decree for partition of l/3rd share of Gura p- pa's properties in the hands of the defendants 2 to 4 by metes and bounds. Defendants 2 to 4 contested that Defenda nt No. 4 was lawfully married wife of Gurappa.

Defendants 2 to 4 appealed to the Civil Judge at Hub li impleading the plaintiff and Defendant No. 1 as respodent s.

The Civil Judge 71 modified the decree and granted I/6th share holding the 4 th defendant to be legally married wife of Gurappa. Bei ng dissatisfied by the said order, the plaintiff as also D e- fendants 2 & 3 filed appeals in the High Court. The Hi gh Court by the impugned judgment allowed the plaintiff 's appeal and restored the decree of the trial Court for l/3 rd share and dismissed the defendant's appeal. The High Cou rt held that the 4th defendant was not legally married wife of deceased Gurappa. Hence this appeal by Defendants 2 & 3 by special leave.

The question that was agitated before this Court wa s:

Whether proof of custom of Udiki marriage was adduced by t he fourth defendant; and whether Udiki marriage itself impli ed the dissolution of earlier marriage and if not, wheth er separate custom of dissolution of the earlier marriage w as pleaded and proved.

Allowing the appeal, this Court,

HELD: Custom must be proved and the burden of proof is on the person who asserts it. A custom cannot be extended by logical process. Customs cannot be extended by analogy a nd it cannot be established by a priori method. [8lB. E] Nothing need be proved of which the Courts can ta ke judicial notice. When a custom has been judicially reco g- nised by the Court then it passes into the law of the la nd as proof of it becomes unnecessary under section 57(1) of the Evidence Act. [81 F] From the evidence on record, appreciated in the light of the case law on the subject and the authoritative tex ts relating to the custom of dissolution and Udiki form of marriage prevalent among the Lingayats who are a religio us sect following teachings of Basava, the Court entertains no doubt that there has been ancient and unbroken customs of dissolution of marriage and of Serai Udiki marriage amo ng the Panchamasal Lingayats which was judicially noticed by the Courts, and that the marriage in the instant case, of the fourth defendant with Gurulingappa was proved to ha ve been customarily dissolved and that she was subsequent ly legally married with Gurappa in the valid customary form of Udiki marriage, whereafter, she lived with Gurappa as hu s- band and wife until Gurappa died, and that, thereafter, s he enjoyed the family pension by dint of her being nominated as wife of Gurappa to the knowledge of all concerned. She w as accepted by the community as wife of Gurappa even after h is death. There is, therefore, no scope for declaring t he marriage illegal posthumously. [84F-H; 85A] 72 Virasangappa v. Rudrappa & Anr., [1885] I.L.R 8 Madr as 440; Pakhali Jina Magan v. Bai Jethi, I.L.R. 1941 Bom. 53 5;

Sankarlingam v. Subban, [1894] 17 Madras 479; Shivalingi ah v. Chowdamma, A.I.R. 1956 Mys. 17; Rahi v. Govinda Val ad Teja, [1876-77] I.L.R. 1 Bom. 97; Edward v. Jenkins, [189 6] 1 Ch.D. 308; Mohammed Ibrahim v. Shaik Ibrahim, AIR 19 22 P.C. 59; Ramalakshmi Ammal v. Sivanantha Perumal Sethuraya r, 14 M.I.A. 570; Raja Rajendra Narain v. Kumar Gangananda

Ors., AIR 1925 PC 213; D.C. Bara Banki v. Receiver of t he Estate of Choudhry & Ors., AIR 1928 PC 202; Effuah Amiss ah v. Effuah Krabah, AIR 1936 P.C. 147; Saraswati v. Jagada m- bal, AIR 1953 SC 201 and Uzagar Singh v. Mst. Jeo, AIR 19 59 SC 1041, referred to.

& CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3373 of 1979.

From the Judgment and Decree dated 24.1. 1979 of t he Karnataka High Court in Regular Second Appeal Nos. 522 a nd 591 of 1973.

R.B. Datar for the Appellants.

S.S. Javali and Ranjit Kumar for the Respondents.

The Judgment of the Court was delivered by K.N. SAIKIA, J. This defendants' appeal by special lea ve is from the judgment of the High Court of Karnataka dat ed 24.1. 1979 in regular Second Appeal Nos 522/1973 and 59 1/1973 which arose out of the following facts.

Mallappa Kulkarni had two sons Veerappa and Gurapp a.

Veerappa is survived by his son Lingappa. Gurappa, a railw ay employee, married Channavva (first wife) on 16.2. 1928 b ut finding her issueless and sending her to her parent's vi l- lage, he married in 1935 his second wife Chinnavva who bo re him two daughters Shakuntalabai and Annapoornavva. Channav va (first wife) however used to pay occasional visits to Gura p- pa. Chinnavva (second wife) died in 1943 whereafter Gurap pa is said to have married Nilavva. Gurappa retired in 1961 a nd settled permanently at Hubli constructing the suit house a nd himself occupied a part and let out the other part on ren t.

After the death of Gurappa on 29.11.1976 his issueless fir st wife Channavva demanded 1/3 share in his moveable and i m- moveable properties, but finding it difficult to acquire h er share sold her right to 1/3 share to 73 Lingappa son of late Veerappa on 29.3. 1967 for Rs.5,00 0.

The other heirs having rejected Lingappa's request f or partition he instituted O.S. No. 387/1968 in the Court of Additional Munsif, Hubli impleading Channavva, Shakuntal a- bai, Annapoornavva and Nilavva (describing her as havi ng illegal connection with deceased Gurappa) as first, secon d, third and fourth defendants, respectively, for partition of 1/3 share in the suit house and the moveable properties, a nd for possession thereof. The first defendant supported t he case of the plaintiff; the other defendants contested t he suit and averred that the fourth defendant was lawful ly married wife of Gurappa. On the pleadings the followi ng issues, inter alia, were settled:

"1. Whether the plaintiff proves the execution of the sa le deed by defendant No. 1?

2. Whether the 1st defendant proves that she had valid tit le to the suit property and the alienation by her in favour of the plaintiff is valid and legal?

3. Whether the plaintiff has derived any valid title by virtue of the sale deed in his favour?

4. Whether the defendant No. 4 proves that she is legal ly wedded wife of the deceased Gurappa?" On 13.1.1971 the trial Court passed a preliminary decr ee for partition of 1/3 share of Gurappa's properties in t he hands of defendants 2 to 4 by metes and bounds. The secon d, third and fourth defendants appealed to the Civil Judge at Hubli impleading the plaintiff and the first defendant as respondents in regular Appeal No. 31/1971 and the learn ed Civil Judge by his judgment dated 21.2. 1973 confirmed t he decree only modifying it to the extent of 1/6 share inste ad of 1/3 share holding the fourth defendant to be legal ly married wife of Gurappa. The second, third and fourth d e- fendants appealed therefrom in R.S.A. 591/1973 and t he plaintiff appealed in R.S.A. 522/1973. The High Court by t he impugned judgment dated 24.1. 1979 allowed the plaintiff 's appeal R.S.A. No. 522 restoring the decree of the tri al Court for 1/3 share and dismissed R.S.A. 591/1973 holdi ng that the fourth defendant was not legally married wife of Gurappa. Hence this appeal by defendants two and three.

Mr. R.B. Datar, the learned counsel for the appellant s, stating that the case hinges on the question of validity of fourth defendant's 74 marriage, submits that the High Court while holding that t he fourth defendant was not legally married wife of Gurap pa overlooked vital evidence on record in proof of her custo m- ary Udiki marriage with Gurappa who himself declared her as his wife wherefore she earned family pension after h er husband's (Gurappa's) death. Mr. S.S. Javali the learn ed counsel for the respondents submits that there was no suff i- cient evidence to establish the custom of Udiki marriage a nd at any rate no custom to support the dissolution of marria ge of the fourth defendant with her previous husband Guruli n- gappa was pleaded or proved. Mr. Datar replied that t he custom of Udiki marriage itself implied the dissolution of the earlier 'marriage of the woman and there was sufficie nt evidence in support of the custom of dissolution of t he previous marriage and thereafter the Udiki marriage of t he fourth defendant with Gurappa.

The questions, therefore, are whether sufficient pro of of custom of Udiki marriage was adduced by the fourth d e- fendant; and whether Udiki marriage itself implied t he dissolution of the earlier marriage, and if not, wheth er separate custom of dissolution of her earlier marriage w as pleaded and proved. These were the questions in issue No.

4.

From the records we find that the custom of Udiki ma r- riage was pleaded by the fourth defendant, in her writt en statement, stating that after the death of Chinnavva (seco nd wife) in the year 1943 Gurappa married her (fourth defen d- ant) after she divorced her first husband Gurulingappa by mutual consent and the marriage was in Udiki form at Mir aj in accordance with their caste custom and that thereaft er she continued to live with Gurappa as his wife till h is death in the year 1966. She further stated that there was a custom of Udiki form of marriage in Panchamsale sub-sect of Lingayat community to which she belonged and that there w as a custom for dissolution of marriage in her sub-sect. S he also described the formalities of Udiki form of marria ge that a saree and a blouse were handed to her by the brid e- groom Gurappa and the Mangalsutra was given by Gurappa aft er uttering Mantrums. The saree was worn by her and the Manga l- sutra was tied round her neck. Considering the above in t he context of issue No. 4 we entertain no doubt that the cust om of Udiki marriage was pleaded. It also appears that t he custom of dissolution of marriage prevalent amongst t he caste was-also compositely pleaded to the above extent.

We have to see whether the above custom or customs were prov ed by evidence.

It would be logical first to take the question of custom of dissolu- 75 tion. In the written statement filed by the second defenda nt it was stated that after Chinnavva's death in 1943 Gurap pa married the fourth defendant who divorced her first husba nd Gurulingappa by mutual consent. We have, therefore, to s ee whether the custom of Udiki marriage itself implied su ch prior dissolution. The relevant texts and instances reli ed on may be referred to for this purpose.

In Virasangappa v. Rudrappa & Anr., [1885] I.L.R.

8 Madras 440 the questions were whether Kusava, daughter of Rudrava, who married Rudrappa was legitimate being born in lawful wedlock according to the custom of Lingayats a nd whether the said marriage was legalised by the custom to which the parties belonged, it was found that Rudrava was 18 years earlier married to another person when she was 12 or 13 years old and out of Rudrava's next marriage with Rudra p- pa in Udiki form Kusava was born. The defendant contend ed that the second marriage of a wife forsaken by the fir st husband was allowed amongst the Lingayats; that such a marriage was known as 'Serai Udiki' (giving a cloth) as distinct from 'Lagna' or 'Dhara', the first marriage; a nd that Rudrappa married Rudrava in the Serai Udiki form; a nd that the plaintiff and all the members of the family and t he caste recognised that marriage and Kusava was, therefor e, legitimate and entitled to inherit. In that case eviden ce was produced to show that several marriages took place in Serail Udiki form which was accepted by the society and t he children were considered legitimate. It was held that t he parties were Sudras, and the Lingayat owed its origin to Vasava who held that caste distinctions were unworthy of acceptance and who repudiated Brahamanical observances.

It was observed that the sect was particularly represented in Mysore, to a certain extent in Wynad, also in ceded distri ct in Coimbatore and the South Canara in Bombay Presidency a nd that instances had been before the Court in which the rema r- riage of widows amongst that sect had been supported. It w as found that Rudrava was deserted by her husband who had nev er consummated his martage and expressed himself ready to return and live with Rudrava only on the condition th at certain property was secured to him by deed. When th is request was not acceded to, he took no further interest in Rudrava and left her without information about him and d id not prevent her from forming a new connection. It was al so in evidence that Rudrava was treated as a lawfully wedd ed wife both by the appellant and by the other members of t he family and there was proof to show that children of ma r- riages contracted by wives deserted by their husbands we re not regarded as inferior in any respect to the parties to the suit and were received in the Maths of the sect a nd initiated as the children born of a first 76 marriage. The court also observed that in matters of th is kind heresay evidence like tradition may be received a nd direct evidence of such marriages was not always possib le and one of the ways in which they might be proved was fr om the manner of their living and from the way in which th ey were treated by the neighbouts. Kusava was accordingly he ld legitimate.

In Mayne's Treatise on Hindu Law and Usage 11th Edn.

at page 175 it is said:

"When we examine the usages of the aboriginal races, or of those who have not come under Brahamanical influence, we find a system prevailing exactly like that described by Narada. Among the Jat population of the Punjab, not only a widow, but a wife who has been deserted or put away by h er husband, may marry again, and will have all the fights of a lawful wife. The same rule exists among the Lingayats of South Kanara. In Western India, the second marnage of a wi fe or widow (called Pat by the Maharattas, and Natra in Guj a- rat) is allowed among all the lower castes. The cases in which a wife may remarry are stated by Mr. Steele as bein g, if the husband prove impotent, or the parties continual ly quarrel; if the marriage was irregularly concluded; if by mutual consent the husband breaks his wife's neck ornamen t, and gives her a chorchittee (writing of divorcement), or if he has been absent and unheard of for twelve years. Shou ld he afterwards return, she may live with either party at h er own option, the person deserted being reimbursed his ma r- riage expenses. A widow's pat is considered more honourab le than a wife' but children by pat are equally legitimate wi th those by a first marnage. The right of divorce and seco nd marriage has been repeatedly affirmed by the Bombay Courts ." In Encyclopaedia of Religion and Ethics edited by Jam es Hastings Vol. 8 Page 69 we find that the Lingayats are a religious community in India, numbering nearly three mi l- lions at the. census of 19 11, of whom more than half a re found in the southern districts of the Bombay Presidency.

In the Bombay districts of Belgaum and Bijapur one-third of t he population is Lingayat, and in the adjacent district of Dharwar they constitute nearly 50 per cent of the tota l.

Beyond the limits of the Bombay Presidency, Lingayats a re numerous in the Mysore and Hyderabad States. They also fo rm an important element 77 in the population of the north-west corner of the Madr as Presidency.

According to that Encyclopaedia the Lingayats are Dr a- vidian, that is to say, they belong to a stock that w as established in India before the arrival of the Aryans.

Of the Brahamanic triad--Brahma, Vishnu and Siva--they acknow l- edge only the god Siva, whose emblem, the linga, they be ar on their persons. All wearers of the linga were proclaim ed equal in the eyes of God. The traditional Lingayat teach er is Basava. The denial of the supremacy of the Brahman s, coupled with the assertion of the essential equality of a ll men, constituted a vital departure from the doctrines of orthodox Hinduism. Other important innovations were: t he prohibition of child-marriage; the removal of all restri c- tion on widows remarrying. The Lingayats according to t he Encyclopaedia appear to consist of three groups of s ub divisions (1) Panchamsalis with full astavarna rites ( 2) NonPanchamsalis with astavarna rites (3) Non-Panchamsal is without astavarana rites. The astavarna or eightfold sacr a- ment is a principal Lingayat ceremony. While describing t he Lingayats marriage ceremony it goes on to say that the tyi ng of the tali is the binding portion of the ceremony. Befo re the tali is given to the bridegroom, it is passed round t he assembly to be touched by all and blessed. As soon as t he bridegroom ties it on the bride, all those present thr ow over the pair a shower of rice. The bridegroom places so me curemill seed and jagri, or unrefined sugar, on the bride 's head, and the bride does the same to the bridegroom.

The remarriage of widows was one of the points on whi ch Basava insisted, and was probably one of the biggest bon es of contention with the Brahmans. Widow remarriage is allow ed at the present day, but the authorities at Ujjini see fit to disregard it. They say that among jangams it is prohibit ed and that among the other classes of Lingayats it is t he growth of custom. It also says: "Among Lingayats wid ow remarriage is common, and divorce is permissible. The ord i- nary law of Hindus is followed in regard to t he inheritance." The Gazetteer of Bombay State, Dharwar District, 19 59 contains a description of Lingayats marriage and the ma r- riage rules. At page 138 it says: "The Lingayats do n ot allow the children of brothers to intermarry, nor may si s- ter's children. Marriage with a mother's sister's daught er is also prohibited. A man may marry his sister's daughte r, but if the sister be a younger sister such marriage is looked on with disfavour. Widow marriage is allowed at t he present day, except amongst Jangamas. Divorce is permiss i- ble. The chief feature of the 78 actual marriage ceremony is the tying on of the mangalsut ra (bride's luck neck-thread), is performed by the bridegro om under the Jangama's discretion. The ceremony begins by t he mathapad bowing to the mangalsutra, and proclaiming that it is about to be tied to the bride's neck. The bridegroom la ys his right hand on the bride's fight hand, the mathapati la ys the lucky thread on the boy's hand. The teacher gives t he order to tye on the lucky thread and the bridegroom ties it on the girl's neck." In the Castes and Tribes of Southern India by Edg ar Thurston, first published in 1909 reprinted in 1975, it is said that the marriage of widows was one of the points on which Basava insisted and that the practice is widely fo l- lowed and that divorce is permitted on proof of misconduc t.

The husband can exercise his right to divorce his wife by proving before a Panchayat the alleged misconduct. The wi fe can only claim to divorce her husband when he has be en outcasted. Wives who have been divorced cannot remarry. T he above answers are given on the authority of the Ujjini mut t.

It goes on to say: "There appears to be considerable dive r- gence of opinion in other quarters. By some it is positive ly asserted that divorce is not permitted under any circu m- stances; that the husband and wife may separate on t he ground of incompatibility of temper or for misconduct; a nd that in these circumstances the husband is at liberty to marry again, while the wife is not. Others say that divor ce is permitted, and that both parties are at liberty to rema r- ry." In connection with the Lingayats of South Canara, it is recorded, in the Indian Law Reports that "second marriage of a wife forsaken by the first husband is allowed. Such ma r- riage is known as serai udiki (giving a cloth); as disti n- guished from lagna or dhara, the first marriage." In Hindu Law by S.V. Gupte 3rd Edn. Vol. II, page 619 we read that divorce was not allowed by general Hindu law, it was in some cases permitted by customs. Such custom, howe v- er, prevailed only amongst the lower classes, especially in the Bombay Presidency. Customs to be recognised by the Cou rt must be valid. Though Hindu law did not contemplate divorc e, still in those districts, where it was recognised as an established custom, it had the force of law. In Sankarling am v. Subban, [1894] 17 Madras 479 divorce by consent was he ld valid as a matter of custom of the Pakhali caste of Ahmed a- bad observing that there was nothing immoral in a cas te custom by which divorce and remarriage were permitted by mutual agreement. There was no invalidity in a custom by which married couple on account of disagreement between th em by consent could divorce and were 79 divorced by parties approaching the headman and other rel a- tions, paying certain amount and taking away tali or t he sacred thread from round the wife's neck and giving it ba ck to the husband. It was only when the divorce was enforc ed against the wishes of his wife that the custom permitt ed divorce would be illegal. 1n Pakhali Jina Magan v. B ai Jethi, I.L.R. 1941 Bom 535 it was held that a custom of divorce with mutual consent of husband and wife stated to exist among the Hindus of Pakhali caste of Ahmedabad was n ot repugnant to Hindu Law. When it was contended that t he institution of divorce was itself opposed to the concept of Hindu law and that there was no decision of any Court in India which held a custom of divorce as valid as it w as observed that would be going too far and that it was o b- served in Tagore Law Lectures, 1908, on Customs and Custo m- ary Law in British India, "divorce is not contemplated by the Hindu Law but it is not repugnant to its principles, a nd if there be a well established custom in its support, it m ay override the general provisions of that law." It was furth er observed that there had been many cases in our Courts ar t- sing out of divorce in the lower castes. 1n all those cas es even where it was held that the divorce had not been prope r- ly granted, it had been taken for granted that the custom of divorce can validly exist in a particular community, esp e- cially if it is a sudra community, but that divorce grant ed cannot be forced by the caste against an Unwilling person.

In Shivalingiah v. Chowdamma, A.I.R. 1956 Mys 17 it h as been held that when a woman lives for a number of years in close association with a man and bears children who a re acknowledged by the man as born to him, relations and pe r- sons of the village treat them as such, there is a presum p- tion of legitimacy, as vice and immorality are not usual ly attributed to such association between a man and a woman.

In Rahi v. Govinda Valad Teja, [1876] 77 I.L.R 1 Bom 97 t he legitimacy of 'Pat' or 'Pata' or 'Natra' marriages among t he Marathas of Bombay Presidency was accepted. Relying on Hin du law of Strange and the statement of Mr. Steele who in h is Law and Custom of Hindoo castes, which has been accepted as authority by the Courts, said that in that Presidency thou gh forbidden in the present age (Kaliyug) to twiceborn caste s, it was not forbidden to sudras and that Manu appeared to have limited the prohibition to the twiceborn classes. Th is has been referred to by Sir Gooroodas Bannerjee in h is Tagore Law Lectures on Hindu Law of Marriage and Stridhan a, lecture VI. Devala expressly permitted re-marriage of a ll classes. Narada also said:

"Nashte mrite prabrajite klaibe cha patite patau; Pan- 80 chaswapatsu narinang patih anyo bidhiate." In cases of first husband having perished, or di ed naturally or gone abroad, or if he is impotent, or have lo st his caste, in these five calamities a woman may take anoth er husband.

In Kautilya's Arthasastra (See R Shamasastry, 2nd Ed.

p.

189) which has been claimed to have been a work during t he period 32 1-296 B.C., anterior, therefore, to Manu a nd Yajnavalkya, said: "If a husband either is of bad characte r, or is long gone abroad or has become a traitor to his kin g, or is likely to endanger the life of his wife, or has fall en from his caste, or has lost virility, he may be abandoned by his wife." He further writes: "A woman hating her husba nd cannot dissolve her marriage with him against his will. N or can a man dissolve his marriage with his wife against h er will. But from mutual enmity, divorce may be obtain ed (parasparam dveshanmokshah). If a man, apprehending dang er from his wife, desires divorce (mokshamichchhet), he sha ll return to her whatever she was given (on the occasion of h er marriage). If a woman, under the apprehension of danger fr om her husband, desires divorce, she shall forfeit her claim to her property; marriages contracted in accordance with t he customs of the first four kinds of marriages cannot be dissolved." There is no doubt that the principle that once a marriage always a marriage was a subsequent development.

Ancient Hindu Law also said:

Tasmindesha ya acarah paramparyakramagatah; Varnanam santa i- ralanam sa sadachara uchyate.

Practice that obtains from generation to generation amo ng the pure and mixed classes is called sadachara.

The next question is whether the custom of Udiki ma r- riage would be a valid custom under law. In Edward v. Je n- kins, [1896] 1 Ch.D. 308 the characteristics of a val id custom are stated. They are, that it must be of immemori al existence, it must be reasonable, it must, be certain and it must be continuous. Every custom must have to be in exis t- ence preceding memory of man and if the proof was carri ed back as far as living memory would go, it should be presum ed that the right claimed had existed from time of legal mem o- ry. This was reiterated in Mohammed Ibrahim v. Shaik Ibr a- him, AIR 1922 P.C. 59. In Ramalakshmi Ammal v. Sivanant ha Perumal Sethurayar, 14 M.I.A.

81 570, it was held that it was the essence of special usag es modifying the ordinary law, (in that case of successio n) that they should be ancient and invariable; it is furth er essential that they should be established to be so, by cle ar and unambiguous evidence and that it is only by means of such findings that the Courts can be assured of their exis t- ence and that they possess the conditions of antiquity a nd continuity and certainty on which alone their legal title to recognition depends. Custom must be proved and the burden of proof is on the person who asserts it.

The Privy Council in Raja Rajendra Narain v. Kum ar Gangananda & Ors., AIR 1925 PC 213, held that after t he existence of a custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence and it is for this reas on that such an evidence is allowable as an explanation to t he general rule. In D.C. Bara Banki v. Receiver of the Esta te of Choudhry & Ors., AIR 1928 PC 202, it has been held th at breach of a custom in a particular instance need not destr oy it for all times. In Effuah Amissah v. Effuah Krabah, A IR 1936 P.C. 147, it was held that material customs must be proved in the first instance by calling witnesses acquaint ed with them until a particular custom has by frequent proof in the Court becomes so notorious that the Courts take judici al notice of it. A custom cannot be extended by logical pro c- ess. In Saraswati v. Jagadambal, AIR 1953 SC 201, it h as been held that oral evidence as to instances which can be proved by documentary evidence cannot be fairly relied up on to establish custom when no satisfactory explanation f or withholding the best evidence is given. Custom cannot be extended by analogy and it cannot be established by a prio ri method. Uzagar Singh v. Mst. Jeo, AIR 1959 SC 1041, la id down that the ordinary rule is that a custom, general or otherwise, has to be proved under Section 57 of the Eviden ce Act. However, nothing need be proved of which the Courts c an take judicial notice. When a custom has been judicial ly recognised by the Court then it passes into the law of t he land as proof of it becomes unnecessary under Section 57( 1) of the Evidence Act. "In regard to marriage", says S ir Gooroodas Banerjee, "the ordinary Hindu Law does not, a nd cannot, form the common rule for all sects alike." Examining the written statements and the evidence a d- duced in this case we find that the fourth defendant Neela va as DW-7 deposed: "Prior to my marriage with late Gurappa, it was said that during my childhood I had married. The pri or husband's name was one Gurulingappa. When I was aged abo ut 16 or 17 years, my marriage with Gurulingappa was dissolve d.

The dissolution of the marriage took 82 place in the house of my elder brother Parappa Sallapur at Hubli. In the presence of one N.M. Patil, S.R. Hiremath, t he then Chief Officer, my eider sister and her husband and my mother's brother's son one Rachappa, my prior husband Gur u- lingappa, the dissolution took place. When I was aged abo ut 23 or 24 years, my marriage with the late Gurappa took pla ce at Miraj." The marriage which took place at Miraj was in Udiki form. There was a custom of Udiki form of marriage in Panchamasale subject of Lingayat community. I belong to Panchamamasale subject. There is also a custom for dissol u- tion of marriage in our section. The dissolution of my marriage with Gurulingappa was effected by my declaration in the presence of elders, that I did not require Gurulingap pa as my husband and by similar declaration by Gurulingap pa that he did not require me as his wife. That declaration w as followed by our mutual expression of liberty to marry anot h- er spouse. That was approved by the elders present then." In cross-examination on behalf of the plaintiff she sai d:

"Since my marriage with Gurulingappa had been performed wh en I was too young and since I did not desire to continue as his wife, a situation arose for the dissolution of t he marriage. There was no other reason for the dissolutio n.

About 13 years after my marriage with Gurulingappa, t he marriage was dissolved." "I was not residing in my husband 's house ever since my marriage with Gurulingappa but I w as residing in my parent's house." She also deposed that to h er knowledge her's was the only case where there was dissol u- tion in their family from the time of their ancestors. H er mother was married in usual form and not in Udiki form. N or her brothers or sisters got a dissolution of their ma r- riages. She also did not know if there were instances of dissolution of marriages among the relations of Gurulinga p- pa. She denied the suggestion that there was no dissoluti on of the marriage and that she continued to be the wife of Gurulingappa. DW-8 Parappa, eider brother of the four th defendant testified about her re-marriage with Gurapp a.

According to him there was a custom in the Lingayat commun i- ty for dissolution of the marriage and he could give o ut certain instances of Udiki form of marriage in their famil y, relations and friends. In his own family his eider sister 's marriage was gone through in Udiki form. His wife's eid er sister was also married in Udiki form. He did not give t he names of the persons having entered into Udiki form of marriage at that time but said that there were thousands of instances. The dissolution of the marriage of fourth defen d- ant took place in his Railway Quarters at Hubli. Outsider s, namely, Shri S.R. Hiremath, N.M. Patil were present. Amo ng his relations, his eider sister, his cousin, Gurulingapp a, his sister and the fourth defendant were present. He h ad written a letter to S.R. Hiremath requesting him 83 to come over there. He requested the other persons also to come there. It was about 7.30 or 8.00 P.M. when the dissol u- tion took place. The fourth defendant expressed that she h ad been married during her childhood and she was not going to continue with Shri Gurulingappa. Gurulingappa also express ed that in view of the big disparity in age between himself a nd the fourth defendant and in view of the fact that she h ad expressed her intention for dissolution, he had no objecti on for dissolution. Thereafter, Hiremath, Patil and his rel a- tions also consented for the dissolution of the marriag e.

Parappa's mother removed the Tali from the neck of t he fourth defendant and handed over the same to Gurulingapp a.

Gurulingappa, thereafter, went away telling that he was at liberty to marry again; and he later had married again.

He clearly stated that as per the custom of the caste, the re was nothing more to be done for the dissolution. This wi t- ness further deposed that in 1943, the Udiki marriage of t he fourth defendant took place at Miraj. At the time of r e- marriage she was aged about 19 or 20 years. Parappa contac t- ed Gurappa for the re-marriage. Gurappa brought his fath er with him and the re-marriage was fixed. He got his eid er sister and his brother-in-law from Bijapur. His moth er Rachappa and his wife were present at the time of re-ma r- riage in addition to those who came from Bijapur. Gurap pa and Jamakhandi were already there. A priest was officiati ng the re-marriage. The lady who had already undergone Udi ki marriage was requested to present the clothes to the brid e- groom and gold was brought by Gurappa and that was hand ed over to the priest who in turn gave it to the bride. Prese n- tation of saris and blouses was made by Udiki form of ma r- riage. Mangalsutra had been brought and it was given to t he priest who enchanted some Mantrum and, thereafter, it w as given to Gurappa who in turn tied it round the neck of t he fourth defendant. The above said function of tying Mangals u- tra took place in God's room. Then the married couple o f- fered their pranams to God. Thereafter, the priest tied t he ends of the clothes of bride and bridegroom who thereafte r, prostrated before the elders to receive their blessings.

It appears that this witness was thoroughly cross-examined b ut could not be dislodged.

DW-9 Gangadhara deposed that he knew as to Gurap pa having been married in Udiki form and that the fourth d e- fendant Neelava was his Udiki wife. He was present at t he marriage. He gives vivid description of the ceremony inclu d- ing the persons who were present. He testified that t he priest enchanted mantrum and thereafter handed over t he Guladali to Gurappa and, as directed by the priest to t ie Guladali around the neck of his wife, Gurappa tied t he Guladali. Mr. Datar says Guladali meant Tali. The clothi ng was presented by each 84 party to the other. As per the direction of the priest t he bride made pranams to the elders present there. This witne ss too was thoroughly cross-examined but could not be shak en from his testimony.

DW-10 Neelakantappa Patil corroborated DWs.8 and 9 in material particulars. DW-11 Rachappa testified to the diss o- lution of the fourth defendants marriage with Gurulingap pa in vivid details. DW-12 Gurulingappa himself testified th at his marriage with the fourth defendant was dissolved, th us fully corroborating the other witnesses. He clearly depos ed that the fourth defendant's mother removed the Tali from h er neck and gave it to him and he took it, went home and subs e- quently married again.

Mr. Datar states on behalf of the second & third defen d- ants that Neelava is dead and that while she was alive s he was addressed as younger mother by the children. It is n ot denied that till her death she enjoyed the family pension as widow of Gurappa to the knowledge of the plaintiff. There is no evidence to show that she was not accepted as wife of Gurappa by the members of the community though in the plai nt she was described as having had illegal connections wi th Gurappa.

The learned counsel for the respondents submits that a ll the witnesses were near relations and hence could not be believed. We do not agree. All elders were not relatives a nd their corroborated testimony could not be discarded. T he second and third defendants in their written statemen ts asserted that Neelava was legally married wife of Gurapp a.

The High Court ignored these vital pieces of evidence whi ch the learned Civil Judge rightly considered.

From the above evidence on record, appreciated in t he light of the case law on the subject and the authoritati ve texts as discussed above relating to the custom of dissol u- tion and Udiki form of marriage prevalent among the Linga y- ats who are a religious sect following teachings of Basav a, we entertain no doubt that there has been ancient and unbr o- ken customs of dissolution of marriage and of serai Udi ki marriage among the Pnachamasale Lingayats which was alrea dy judicially noticed by the Courts, and that the marriage of the fourth defendant with Gurulingappa was proved to ha ve been customarily dissolved and that she was subsequent ly legally married with Gurappa in the valid customary form of Udiki marriage, whereafter, she lived with Gurappa as hu s- band and wife until Gurappa died, and that thereafter s he enjoyed the family pension by dint of her being nominated as 85 wife by Gurappa to the knowledge of all concerned. She w as accepted by the community as wife of Gurappa even after h is death. There is, therefore, no scope for declaring t he marriage illegal posthumously.

The result is that this appeal is allowed, the judgme nt of the High Court is set aside and the judgment and decr ee of the Civil Judge are restored, without any order as to costs.

Y.L. Appe al allowed.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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