Himachal Pradesh High Court
Mussadi vs Mt. Chando And Ors. on 28 December, 1955
Equivalent citations: AIR1956HP45
JUDGMENT
Ramabhadran, J.C.
1. In this second appeal by a plaintiff, arising out of a suit for declaration that Mt. Chando, respondent No. 1, had no right to sue for partition of her deceased husband Malagar's share, the only points that arise for determination are: (a) Whether Mt. Chando remarried Tulsi after the death of Malagar and (b) if so, whether she could claim partition of the share of her previous husband, Malagar.
2. In the grounds of appeal to this Court, various other pleas were taken. On the 5th instant, however, learned counsel for the appellant made a statement giving up grounds of appeal Nos. 1, 3 and 4.
3. After hearing the arguments of the learned: counsel for the parties, I have come to the conclusion, for reasons to be stated shortly, that this appeal should succeed.
(a) The Courts below have held against the plaintiff on the ground that no valid marriage took place between Mt. Chando and Tulsi. The learned Judge of the lower appellate Court has gone a step further and held that two religioua ceremonies, namely invocation before the sacred fire and saptapadi, were essential before Mt. Chando could have been validly remarried.
Learned counsel for the appellant argued, strenuously, and in my opinion not without Justification--that in the case of remarriage of a Hindu widow, these ceremonies are not necessary. Reliance was placed by him on the following-rulings: (i) In his commentary to Section 437 of Mulla's Hindu Law, Eleventh Edition, the learned commentator, under the heading 'Marriage of Widows' remarks :
"According to the Hindu Law, no religious ceremonies are necessary in the case of marriage of widows."
(ii)--'Thunthi v. Dhani Bam', 1953 Him-P 63 (AIR V 40) (A). There, my learned predecessor, dealing with the question of validity of the remarriage of one Mt. Basanto (a widow), remarked:
"It will appear, therefore, that it is impliedly conceded that Mt. Basanto, though a widow, was entitled to remarry according to local custom. It has, however, to be remembered that according to the Hindu law, no religious ceremonies are necessary in the case of remarriage of a widow.
In the neighbouring province of the Punjab, the Karewa form of marriage, which is a marriage with the brother or some other male relative of the deceased husband of the woman, is contracted without any ceremonies at all, as pointed out by Gaur in para 363 of his Hindu Code, Edition 4, citing--'Authikesavalu v. Bamanujam', 32 Mad 512 (B).
It was incumbent upon the plaintiff-respondent, therefore, to prove not only that Mt. Basanto's marriage in the Jhanjhara form was not in fact performed with Zalim but also that performance of marriage in that form was necessary."
(iii)--'Tapoo v. Emperor', 1937 Sind 42 (AIR. V 24) (C). There, Davis J. C., indicated that:
"The purpose of the Hindu Widows' Remarriage Act is not to limit but rather to increase the rights of Hindu widows and not to restrict any existing custom of remarriage among Hindu, widows, but to give the right to those to whom it had hitherto been denied. Section 6 of the Act does not apply to a case where the remarriage is among people among whom widow remarriage is recognized by custom."
"Where, therefore, the remarriage is among sweepers, among whom widow remarriage is generally recognized, it is not rendered invalid merely because the ceremonies necessary for the first marriage, as required by Section 6, have not been gone through. It is sufficient if the conditions essential by custom to validate the remarriage have been fulfilled and the widow becomes a married wife of the person to whom she is married."
(iv)--'Mt. Bam Rakni v. Daulat Ram', 1926 Lah 31 (1) (AIR V 13) (D). There, Martineau J., While dealing with a case of remarriage of a Khatri Widow, observed that:
"It is not necessary for tine validity of a marriage by a Khatri widow that all the usual ceremonies which have to be performed in the case of a Khatri girl on her first marriage should be performed and in such cases if the parties go through such ceremonies as they can reasonably arrange for and clearly and unequivocally express their intention to enter into the marriage relation with each other and as a fact thereafter live together as husband and wife, such a union is a valid marriage".
4. During the course of his judgment, the learned District Judge has remarked that there could be no valid marriage between Mt. Chando (a Brahmin by caste) and Tulsi Ram (a Rajput). As Mr. Anand rightly pointed out, the learned District Judge appears to have overlooked the provisions of XXI of 1949, the Hindu Marriages Validity Act, 1949, whereby no marriage between Hindus shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to different castes etc. The provisions of this Act were applied to Bilaspur on 1-1-1950 vide the Merged States (Laws) Act, 1949. In the present case, the plaintiff's case is that Mt. Chando married Tulsi on 3-12-1951, i.e. long after the above Act came into force in Bilaspur State. Consequently, the fact that Chando and Tulsi belong to different castes would not render the marriage invalid.
5. Coming to the evidence on the factum of marriage, there is, first of all, the document Ex. P. 1, executed by Mt. Chando on 3-12-1951. The execution of this document is proved by the statement of the scribe, Chuni Lal (P. W. 2). An attempt was made to discredit Chuni Lal on the ground that he was a minor at the time the document was executed and although 100 or 120 persons, including lambardars, were present in the assembly, the task of writing out the document was allotted to the minor youth.
The explanation given by Chuni Lal was that he was the only person present in the assembly who could write well. This explanation was accepted by the trial Court as satisfactory. In my opinion, there is no ground for disbelieving Chuni Lal who was about 17 years of age when he wrote put Ex. P. 1. Nor was there any suspicious feature in his having been called upon to write the document. In this connection, I may point out that Mt. Chando has gone to the ridiculous extent of denying having executed the document in toto. A perusal of the document, Ex. P. 1, shows that Mt. Chando admitted therein that she had married Tulsi Rain that day in the presence of the Panchayat, according to the Nath-Chadar form. There was a further recital that Tulsi Ram had paid her Rs. 300/-, which he had passed on to one Gokal Ram. She further undertook to pay Tulsi Ram Rs. 1,000/-, if she deserted him. In my opinion, this document does, clearly and unequivocally, express the intention of Chando to enter into a marriage relation with Tulsi and to live with him as his wife.
6. As regards the performance of the marriage itself, Tulsi Ram, Ganpat and Sundar stated that Mt. Chando was brought in a palanquin a he-sheep was slaughtered, feast was held and ornaments were presented to Mt. Chando. Soon afterwards, a document was also executed. The trial Court was of the opinion that these acts were not sufficient to constitute a valid marriage and it was incumbent upon the plaintiff to prove that some sort of marriage ceremony was gone through. Learned counsel for the respondent No. 1 cited--'Deivanai Achi v. Chidambaram Chettiar', 1954 Mad 657 (AIR V 41) (E). There, the facts were that a man belonging to Nattukottai Chettiar caste married a widow belonging to Reddi caste according to Suyamariyathai Cult (the self-respector's cult) under the auspices of the Anti-Purohit Association.
It would appear that no ceremonies of any sort prescribed, either by Shastras or by usage having the force of law, were performed. The Anti-Purohit Association had not drawn up rules regarding rites and ceremonies to be performed on such occasions. Under those circumstances, it was held by the Madras High Court that:
"That assuming that the marriage in the 'Gandharva' form was intended, a mere agreement followed by declaration and living together as husband and wife with the exchange of garlands and rings was not; sufficient to constitute a valid marriage according to Hindu law--Marriage was invalid and the doctrine of 'factum valet' was not applicable to such a case."
In my opinion, the above ruling is not applicable to the facts of the present case. It is true that in the plaint (which appears to have been drawn up by a petition-writer), it was not specifically alleged that Mt. Chando's remarriage with Tulsi took place according to Nath-Chadar form. In her written statement, however, Mt. Chando maintained that in the matters of inheritance and succession, parties were governed by custom. Unfortunately, the trial Court did not take the precaution of examining the parties under the provisions of Order 10.
Had that course been adopted, the position of the parties would have been clarified and the scope of the inquiry, correspondingly, could have been narrowed down. I have already referred to the fact that in the document, Ex. P. 1, executed at the time of the remarriage, there is a clear reference that the remarriage was in the Nath-Chadar form.
It is noteworthy that Mt. Chando did not have the courage to admit having executed this document. Her plea, on the other hand, was that she never executed such a document. This, to my mind, is a pointer to the fact that Mt. Chando was aware that a marriage, according to the Nath-Chadar form, was recognized by usage as a valid form of marriage and she apprehended that if she admitted the execution of the document, the suit would be decided against her. In--'Suram Chand v. Indar', 1934 Lah 550 (AIR V 21) (P), Jai Lal J., referred to--'Khairu v. Fakir Chand', 57 Pun Re 1909 (G), wherein it was held that a chadarandazi form of marriage was valid in Gujarat district of the Punjab.
His Lordship also referred to--'Dharam Singh v. Thakar Das', 1932 Lah 431 (AIR V 19) (H), wherein a marriage by chadarandazi in the district of Hoshiarpur was held to be valid by custom. In Rattigan's Customary Law of the Punjab, Thirteenth Edition, revised by Om Prakash Aggarwala, at page 864 the learned author remarks :
"There may, therefore, be customary forms of marriage which are perfectly valid and which do not strictly come within the definition of any of the approved forms of marriage mentioned in the Mitakshara."
7. The Courts below have relied upon--'Ram Peavey v. Mt. Kailasha', 1930 Oudh 423 (AIR V 17) (I) and--'N. Padayachi v. A. Ammal', 1938 Rang 59 (AIR V 25) (J). These were also relied upon by the learned counsel for the respondent. In the former decision, a Division Bench of the former Chief Court of Oudh, after holding that there could be no valid marriage in the Gandharva form between Kailasha and Har Charan (both being Kankubja Brahmins), were pleased to observe that:
"It is perfectly clear that when Mt. Kailasha was first married the performance of the religious rites and ceremonies prescribed for a marriage in the Brahma form would have been necessary to constitute her marriage valid. It follows that in the case of her remarriage the same ceremonies and religious rites should have been observed."
In the Rangoon ruling, referred to above, the evidence on the record merely indicated that a party of visitors came to talk about K's future and D said that he would take her as his wife, there was no suggestion of any attempt to have religious or secular ceremonies performed. Under those circumstances, their Lordships of the Rangoon High Court were pleased to hold that K could not be deemed to have remarried D. These rulings, in my opinion, are not applicable to the present case.
8. In the present case, as already shown, Mt. Chando was brought in a palanquin. Relatives and Bhaiband were called. A he-sheep was slaughtered, feast was held and ornaments were given to Mt. Chando. Further, in the presence of the Panchayat, Mt. Chando executed a document acknowledging that she had married Tulsi Ram according to the Nath-Chadar form.
I fail to see how all this evidence can be brushed aside merely on the strength of the negative testimony of the defence witnesses to the effect that Mt. Chando's remarriage did not take place in their presence.
9. In view of all that has been said above, 1 would reverse the finding of the Courts below on issue No. 3 and hold that Mt. Chando remarried Tulsi Ram, according to the Nath-Chadar form.
(b) Under Section 2 of the Hindu Widows' Remarriage Act, 1858, all rights and interests possessed by Mt. Chando, in the property of her deceased husband, Malagar, ceased and determined on the date of her remarriage. Consequently, she was not entitled to sue for the partition of Malagar's share in the land in dispute.
ORDER
10. The result is: I allow this appeal, set aside the decisions of the Courts below and grant the plaintiff a declaratory decree as prayed for. In view of the fact that Mt. Chando was at one time married to the plaintiff's own brother, I leave parties to bear their respective costs here and in the Courts below.