Punjab-Haryana High Court
Darbara Singh Son Of Inder Singh Of ... vs Jaswant Kaur Widow Of Chand Singh Of ... on 8 January, 2014
Equivalent citations: AIR 2014 PUNJAB AND HARYANA 100, (2014) 2 CIVILCOURTC 394, (2014) 2 MARRILJ 473, (2014) 1 RECCIVR 1004, (2014) 2 DMC 630
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No.606 of 1986 (O&M)
Date of decision:08.01.2014.
Darbara Singh son of Inder Singh of Village Cheema, Tehsil and
District Sangrur.
.... Appellant
versus
Jaswant Kaur widow of Chand Singh of Village Cheema, Tehsil and
District Sangrur, and others.
.... Respondents
II. Regular Second Appeal No.1268 of 1986 (O&M)
Darbara Singh son of Inder Singh of Village Cheema, Tehsil and
District Sangrur.
.... Appellant
versus
Tehal Singh son of Chand Singh of Village Cheema, Tehsil and
District Sangrur, and others.
.... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. P.N. Aggarwal, Advocate,
and Mr. Amarjit Markan, Advocate,
for the appellant.
Mr. C.B. Goel, Advocate,
Mr. Manoj Sharma, Advocate,
and Mr. Nitin Jain, Advocate,
for the respondents.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ?Yes.
3. Whether the judgment should be reported in the digest ?Yes.
----
Kumar Sanjeev
2014.01.08 14:51
I attest to the accuracy and
integrity of this document
chandigarh
Regular Second Appeal No.606 of 1986 (O&M) -2-
K.Kannan, J.
I. The litigious journey so far
1. The 8th defendant in the suit is the appellant in both the appeals before this Court. It was admitted by the 1st plaintiff that she had been married to one Chand Singh and after his death, she entered into the karewa form of marriage which was registered through an instrument dated 17.05.1972. The document was also registered. Harnek died on 16.07.1975. The suit relates to the estate of Harnak Singh. The respondents 1 and 2 herein were the plaintiffs. It was also pleaded that Harnek Singh had executed a Will in favour of the 2nd plaintiff, who was the son of the 1st plaintiff through her previous marriage with Chand Singh. The 8th defendant alone contested the suit contending the alleged fact of karewa marriage and the validity of the karewanama. The execution of the Will was also denied. The contention was that the 8th defendant had been looking after Harnek Singh during his lifetime and after his lifetime, the property fell to his possession. The trial Court dismissed the suit holding that the Will had not been proved and even the marriage had not been proved. The Court held that after coming into force of the Hindu Marriage Act, the marriage has to be accompanied with anyone of the ceremonies mentioned in the Act to validate the same and the mere execution of the karewanama cannot validate the marriage. As regards the plea that the karewanama itself Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.606 of 1986 (O&M) -3- must be treated as constituting a Will bequeathing the property of Harnek Singh to pichlag son of the 1st plaintiff through Chand Singh, the Court held that Harnek Singh could not have intended to execute a Will through the said instrument and could not be treated as a bequest in favour of the 2nd plaintiff. The suit was dismissed. Both the plaintiffs 1 and 2 filed independent appeals which were allowed and hence, the second appeals are before this Court at the instance of 8th defendant.
II. The substantial questions of law
2. The substantial questions of law framed at the time of arguments are reproduced to secure an appropriate focus for consideration in this case:-
i) Whether a mere execution of karewanama without proof of governing customary ceremony to celebrate a marriage between Jat sikhs valid and impress the character of the person showing as the wife as having obtained to such a legal status?
ii) Whether the plaintiff had actually improved upon the version to set out accompaniment of religious ceremony only for the purpose of the suit, when there had been no such case at the time of mutation proceedings pending before the authorities?
iii) Whether the terms of the karewanama could be treated as constituting a Will within the definition of the Indian Succession Act?
iv) Whether in any event if the karewanama were to be construed as a Will, was it not affected by suspicious Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.606 of 1986 (O&M) -4- circumstances as already found by the trial Court and hence invalid?
III. Validity of karewa form of marriage-Ingredients of proof
3. I will take up the issue of the validity of the karewa marriage, for, that would decide the issue of whether the 1st plaintiff could claim herself to be the owner of the property as a heir to Harnek Singh and exclude the 8th defendant from claiming the property as a collateral heir. The learned counsel appearing on behalf of the appellant would contend that after the death of Harnek Singh, there were proceedings before the revenue authorities for mutation of entries in relation to the land with the village records and at that time, specific evidence was elicited from the 1st plaintiff that there had been no ceremony of marriage. The 1st plaintiff knew about the futility of the claim to the status as a wife, if the ceremony of marriage had not been proved and, therefore, a new case was introduced as an afterthought in suit to make it appear as though that there had been a form of marriage and karewanama was written subsequently. The learned counsel would, therefore, argue that the marriage was not valid and the counsel would refer me to a decision of the Supreme Court in Bhaurao Shankar Lokhande and another Versus The State of Maharashtra and another-AIR 1965 Supreme Court 1564 (V.52 C 265) that held that the word "solemnize" appearing under the Hindu Marriage Act would mean in connection with the marriage, 'the celebration with proper ceremonies and in Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.606 of 1986 (O&M) -5- due form'. It followed, therefore, that unless marriage was 'celebrated and performed with proper ceremonies and due form', it could not be said to be 'solemnized'. I must immediately point out that this decision was rendered in the context of a prosecution of a criminal offence of Section 494 IPC. The standard of proof of what would qualify as bigamy and the validity were, therefore, considered from the extracting standard of proofs necessary in order that second marriage was taken as established for an offence of bigamy. This ought not to be necessarily taken as laying down a proposition that for a karewa form of marriage, there were any particular ceremonies and rituals that were required to be established in order that a claim to status as a wife was possible. This was however brought out in yet another case that went to Supreme Court from this court and dealt with in Surjit Kaur Versus Garja Singh and others-AIR 1994 Supreme Court 135. The Court held that mere living together as husband and wife would not confer the status as such and if the nature of ceremonies performed were not brought out, the customary form of marriage cannot be upheld. In that case, there was evidence that apart from the karewanama, the ceremonies of marriage were performed in the village and gur was distributed. The Supreme Court confirmed the judgment of the High Court and held that the marriage that is proved must be a marriage which was a valid one and in that case that a valid marriage had not been proved. I would Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.606 of 1986 (O&M) -6- find this judgment as not laying down any law that any detailed ceremonies were required or that any particular ceremony had been found as necessary. The case must be confined to treatment of fact by the High Court as not establishing a marriage and the Supreme Court itself as not disturbing the finding of the High Court. As a principle of law, all that could be stated is that the ceremony shall be that which custom recognized.
4. The learned counsel appearing on behalf of the appellant will bring before me certain vital contradictions in evidence even as regards the alleged ceremonies accompanying the karewa marriage. PW3-the 1st plaintiff would state that the karewa ceremony had been performed about 6/7 months after the demise of Chand Singh. She also admitted that karewanama itself did not disclose any ceremonies as having been performed. The father of the 1st plaintiff Kapoor Singh was examined. He was 80 years of age. His evidence was given in 1981 and would state that the karewa marriage was solemnized 4 years ago, which would take the period to be somewhere around 1977. He would at the same time also state that the Chand Singh died about 10 years ago which was a manner of eliciting a contradiction to the 1st plaintiff's version that she contracted a karewa marriage after 6 or 7 months after the demise of Chand Singh. The witness however give the details of the ceremony that he had tied the turban on the head of Harnek Singh and he in Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.606 of 1986 (O&M) -7- turn put chaddar on Jaswant Kaur. Thereafter gur was distributed. He spoke about the shagun as having been given by him. Numberdar Kartar Singh, Sarpanch Naranjan Singh, Jagroop Singh and Sardara Singh who were all present there. After the karewa, Jaswant Kaur lived at the house of Harnek Singh as wife. He would also state that the parties were Jats by caste and dependent on agriculture. There was no particular ceremony in karewa marriage. He would admit that shagun was not entered in the ledger. PW5 Jagroop Singh was the Numberdar, who claimed that both Chand Singh and Harnek Singh were his father's brothers. He also gave evidence about the fact that after the karewa, Harnek Singh and Jaswant Kaur lived as husband and wife. PW6 was the document writer for karewanama. PW7 would recall the karewa as having been performed in May 1972 and he was present there being a Sarpanch. He also spoke about the fact that the father of the plaintiff had tied the turban to Harnek Singh and shagun was given.
The averments in the plaint is as follows:-
".........After the death of Chand Singh, the plaintiff Jaswant Kaur entered into kerewa marriage with Harnek Singh according to customary rights. A kerewanama in this behalf was also executed by Harnek Singh and Jaswant Kaur on 17/5/1972, and was got registered with the Sub Registrar, Sangrur on the same date. ...."
The further details of marriage are given as under:-
"That as already submitted Chand Singh and Harnek Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.606 of 1986 (O&M) -8- Singh deceased were jat sikhs by caste. The plaintiff and Kapur Singh father of Jaswant Kaur are also jat sikh by caste and agriculturists by profession for the last several generations. They furnish namberdars and form part village community (sic). They are governed by customary law in the matters of marriage, remarriage, divorce and other matters according to which a widow can enter into a kerewa marriage with another person without performing any religious ceremony and the kerewa marriage thus performed confers all the rights of a valid wife on such a woman, who has entered into kerewa marriage. She is entitled to inherit the estate of the deceased 2nd husband as his lawfully wedded wife."
5. The counsel for the respondents would state that all these details have been brought forth for the first time in the plaint, since she did not give details of the customary rights before the revenue authorities in the mutation proceedings. I will not take this lapse as very material, for, ceremonies attendant at marriage are to bring legitimacy in relationship and bring a certain solemnity to the occasion, as recognized by custom. Karewa form of marriage itself was a social response to bring respectability to young widows, who were rehabilitated by marriage to certain class of persons, such as, the deceased husband's brother or any such near relative. It is not expected that such forms of marriage would be attendant with any elaborate ceremonies. The Hindu Marriage Act does not prescribe any particular ceremonies. Section 7 reads:
"Ceremonies for a Hindu marriage Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.606 of 1986 (O&M) -9- (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.
(2) Where such rites and ceremonies includes the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken."
IV. Karewa form of marriage-a social response to bring respectability to widow through remarriage-elaborate ceremonies, unnecessary.
6. Any customary rite as spoken to by witnesses shall be taken as sufficient proof of marriage. We should indeed push for an agenda that approves of minimum formalities so long as the society recognizes them as sufficient. If after the ceremonies, however informal and modest they were, the man and woman lived together as husband and wife and that itself ought to be taken as sufficient. Every State has responded in its own way to approve of expression of intentions as sufficient to supplant elaborate ceremonies. In Tamil Nadhu, the suya mariyada (self-respect) was statutorily recognized by an amendment to the Hindu Marriage Act in 1967. In Punjab, it is karewa form which is the approved form of remarriage of a widow. Even a legislation legitimizing remarriage of widows will obtain its full value only if it approves of minimal ceremonies accompanying such functions as sufficient to validate the marriage. It will be abominable to look for ceremonies like saptapati, a la brahminical form, to legitimise a customary form of marriage Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.606 of 1986 (O&M) - 10 -
prevalent among jat sikhs. Section 7(2) shall be construed to include any minimal ceremony, sans religiosity, so long as it is acceptable to the community. Available literature on the subject suggests that Widow re-marriage in the kerawa form prevalent in Punjab is known 'as a marriage by a widow with the brother or some other male relative of her deceased husband and requires no religious ceremonies and confers all the rights of a valid marriage' (underlining mine; see 38 P.R. 1879; 316 of 1879; 26 P.R. 1880; 36 P.R. 1881; 48 P.R. 1890; 98 P.R. 1890; 54 P.R. 1900-reproduced from punjabrevenue.nic.in). In the book Haryana: Past and Present by Suresh K.Sharma (Mittal Publications, 2006), it is stated (at page
45) "Karewa or a widow marrying one of the brothers of her deceased husband is known among the Jats, Ahirs, Gujars and Harijans is un-accompanied by ceremonies or any kind. The woman merely resumes her jewels and coloured clothes which had ceased to wear on her husband's death. Sometimes, there is a public ceremony to give it a sanctimonious touch; generally living together is held to constitute karewa." In Women and Social Reform in Modern India:
A Reader by Sumit Sarka, and Tanika Sarkar, (Indiana University Press, 2008), the authors state: "The agrarian needs which allowed bride price also sanctified widow-remarriage. Like the former, this was also a feature which the agriculturist castes shared in common with the lower castes. However, the custom of widow-remarriage as Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.606 of 1986 (O&M) - 11 - followed here had special features of its own. Known as kerewa, karao, or chaddal andazi, the custom was a throw back to the old Rig-vedic niyog (levirate marriage) which was prevalent in the geographical region of Haryana- Punjab and associated with the early vedic Aryan settlements. Karewa, a white sheet coloured at the corners, was thrown by the man over the widow's head signifying his acceptance of her as his wife. This custom represented social consent for cohabitation. There could be certain variations. For example, it could take the form of placing churis (glass bangles) on the widow's wrist in full assembly and sometimes even a gold nath (nose ring) in her nose and a red sheet over her head with a rupee tied in one of its corners. This could be followed by the distribution of gur (jaggery) or sweets. Significantly, this form of marriage was not accompanied by any kind of religious ceremony, as no woman could be customrily married twice, that is, go through the ceremony of biah (religious wedding). After Karewa the widow merely resumed her jewels and coloured clothes which she had ceased to wear on her husband's death. So much so that sometimes mere cohabitation was considered sufficient to legitmize the relationship and it conferred all the rights of a valid marriage. ((underlining mine). Reference sourced to C.I.Tupper, The Punjab Customry Law (Calcutta: Government Printing 1881) vol 2, p 93, 123) See also E.Joseph, Customary Law of the Rohtak District, 1910 (Lahore: Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh
Regular Second Appeal No.606 of 1986 (O&M) - 12 - Govt. Printing, 1911), p 45). If witnesses have spoken about the ceremonies, we shall not be looking towards elaborate forms to render invalid a lawful relationship. In this case, there was enough evidence of such customary practices as government texts and Punjabi (and Haryanvi as well) literature admit of. There was evidence that the 1st plaintiff was a handicapped person. If an old man with property was bringing respectability to a woman with disability, it should secure just not social approbation but a court's imprimatur as well. I approve of the decision of the appellate Court finding the marriage to be true and take the karewanama as evidence of such performance of karewa marriage. I will not find the plaint averments to be of any improvement in the 1st plaintiff's case from the stand taken through the mutation proceedings. The proceedings before revenue authorities ought not to be taken as determining a marital status except for a limited purpose of collecting revenue and making somebody responsible who is in possession of property, as a person, who has a semblance of claim that could be legally approved. The plaintiffs were entitled to a decree in the manner sought for.
7. I do not find any reason to go into the aspect of whether the karewanama constituted a Will for the 1st plaintiff's status as wife was itself sufficient to claim possession as a heir in preference to the 8th defendant. The karewanama had merely recorded the pichlag son Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh Regular Second Appeal No.606 of 1986 (O&M) - 13 -
as a heir to Harnek Singh. The heirship is determined by law and the 1st plaintiff's status as a wife is sufficient to secure the reliefs what the plaintiffs have sought for. The judgments of the court below are confirmed and both the second appeals are dismissed with costs. Counsel's fee ` 10,000/-.
(K.KANNAN) JUDGE 08.01.2014 sanjeev Kumar Sanjeev 2014.01.08 14:51 I attest to the accuracy and integrity of this document chandigarh