PETITIONER:
SHAKUNTALABAI & ANR.
Vs.
RESPONDENT:
L.V. KULKARNI & ANR.
DATE OF JUDGMENT28/03/1989
BENCH:
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
JUDGMENT
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.
86