Gurdit Singh Vs. Mst. Angrez Kaur
Alias Gej Kaur Alias Malan& Ors  INSC 128 (25 April 1967)
25/04/1967 BHARGAVA, VISHISHTHA BHARGAVA,
VISHISHTHA WANCHOO, K.N. (CJ) MITTER, G.K.
CITATION: 1968 AIR 142 1967 SCR (3) 789
Custom-Divorce among Jats of Jullundur
District-Value of Rattigan's Digest and Riwaj-i-Am in this regard-Custom in
Surrounding districts can be basis of determining existence of custom in
S married A after the latter had been
divorced by her husband T. The parties were Jats of Jullundur District in the
Punjab. After the death of S a collateral of his got the lands of S mutated in
his favour. A then filed a suit claiming the land as widow of S. Her marriage
to S was challenged on the ground that there was no custom among the Jats of
Jullundur District permitting a divorced woman to remar ry in the life-time of
her first husband, The, entries in the Rattilgan's digest and the Riwaj-i-am of
Jullundur District came up for consideration.
HELD : Rattigan's digest was not of help in
arriving at a conclusion about the existence of such a custom of divorce among
the Jats in Jullundur District. 'Me Riwaj-i-Am of Jullundur District was
unreliable as it had been so held by courts. [792 F-G; 795 A-C] On the basis-of
the existence of a custom of divorce among the Jats of districts surrounding
Jullundur District and on the basis of oral evidence adduced in the case, the
High Court rightly held that a custom of divorce existed among the Jats of
Jullundur District, and the custom permits the divorced women to marry in the
life-time of her first hus- band. The divorce of A by T being valid her
subsequent marriage to S was also valid, and accordingly she was entitled to
succeed to S's property. L797 B-C] Basant Singh v. Kunwar Brij Rai Saran Singh,
62 I.A. 180, Vaishnoo Ditt v. Rameshri, (1928) L.R. 55 I.A, 407, Mahant Salig
Ram v. Musammat maya Devi  1 S.C.R. 1191, Qamar- ud-din v. Mt. Fateh
Bano, (1943) I.L.R. 26 Lab. 110, Muhammad Khalil v. Mohammad Baksh. A.I.R. (36)
1949 E. Pb.
252, Zakar Hussain v. Ghulam Faima, A.I.R.
(14) 1927 Lab.
261, Ghulam Mohammad v. Ball, A.I.R. (18)
1931 Lab. 641 and Mt. Fatima v. Sharaf Din, A.I.R. (33) 1946 Lab. 426, referred
CIVIL APPFLLATE JURISDICTION: Civil Appeal
No. 852 of 1964.
Appeal by special leave from the judgment and
decree dated August 24, 1962 of the Punjab High Court in Regular Second Appeal
No. 843 of 1956.
Bishan Narain and A. G. Ratnaparkhi, for the
K. C. Nayyar and Mohana Behar Lal, for
respondent No. 1.
790 The Judgment of the Court was delivered
by Bhargava, J. This appeal has come up as a result of a dis- pute relating to
succession to the property of one Sunder Singh. Sunder Singh, on 4th November,
1950, executed a will in respect of his property in favour of his niece, Udham
Kaur. Subsequently, on 27th October, 1951, one Tarlok Singh executed a document
divorcing his wife, Mst. Angrez Kaur, respondent No. 1 in this appeal, on the
ground that she frequently went away from his house without his consent and
whenever he made enquiries from her, she became furious with him. In the
document, he recited that Mst. Angrez Kaur was no longer his wife and that she
had gone to live with Sunder Singh. According to respondent No. 1 on this
divorce being granted to her by her first husband, Tarlok Singh, she was
married to Sunder Singh by a custom, known as 'Chadar Andazi'. On 7th June,
1952, Sunder Singh revoked his previous will and, in that document,
acknowledged Mst. Ang- rez Kaur as his wife and left the property to her.
Sunder Singh died in 1953. Thereafter, the appellant, Gurdit Singh, who was a
collateral of Sunder Singh in the third degree, applied for mutation. On 12th
December, 1954, mutation of the property left by Sunder Singh was sanctioned in
favour of Gurdit Singh by the authorities. Thereupon, Mst. Angrez Kaur filed a
suit on 17th March, 1955, claiming the property as widow of Sunder Singh. The
trial Court decreed the suit, holding that respondent No. I had married Sunder
Singh by 'Chadar Andazi' and the marriage was valid. On appeal, the Additional
District Judge set aside the decree of the trial Court and held that the
marriage of Mst. Angrez Kaur with Sunder Singh during the life-time of her
first husband, Tarlok Singh, was invalid and was not justified by any custom
and, consequently, she could not be treated as the widow of Sunder Singh.
Respondent No. 1, there on, appeale to the High Court of Punjab and the learned
Judge, who heard the appeal, felt that the question of custom had not properly
tried by the trial Court and the first appellate Court. Consequently he framed
the following issue :- "Is there any custom amongst the tribes of the
parties according to which the divorce given by Tarlok Singh 'to Mst. Angrez
Kaur is recognised enabling her to enter into a valid marriage by Chadar Andazi
with Sunder Singh?" This issue was remitted to the trial Court for
recording a finding after giving the parties an opportunity to lead further
Further evidence was led in the trial Court
which answered this issue in the negative and against respondent No. 1. The
District Judge, in his report, endorsed the view of the trial Court. The High
Court, however, held that the 7 91 custom was proved under which Mst. Angrez
Kaur could validly marry Sunder Singh, even though her first husband, Tarlok
Singh, was alive, and, consequently decreed the suit.
Gurdit Singh appellant has now come up to
this Court against this decree of the High Court by special leave.
As is clear from the facts narrated above, the,
only issue that arose in this case was whether respondent No. 1, Mst.
Angrez Kaur, had succeeded in proving the
existence of a custom in the community to which she belonged, according to
which Tarlok Singh, her first husband, could divorce her, whereupon she was at
liberty to enter into a valid marriage by Chadar Andazi with Sunder Singh,
whose property is now under dispute. The parties are residents of the District
of Jullundur where, according to Gurdit Singh appellant, no such custom, as
claimed by respondent No. 1 exists amongst the Jats, which is the caste to
which the parties belong.
To urge this point, learned counsel for the
appellant relied before us on 'The Digest of Customary Law' by Sir W. H.
Rattigan, and on the 'Riwaj-i-am' recorded at
the time of the settlement in 1885 and 1914-15. It was argued that Rattigan's
Digest of Customary Law in the Punjab had always been treated as an
authoritative exposition of the customs prevailing in the Punjab and had been
accepted as such by the Privy Council as well as other Courts in India.
Reliance was placed on para 72 at page 471 of
the 14th Edition of Rattigan's, 'Digest of Customary Law', where it is stated
that "amongst Muhammadans of all classes a man may divorce a wife without
assigning any reason; but this power, in the absence of a special custom, is
not allowed to Hindus nor to females of any class". In paragraph 74, he
proceeds to lay down that "until the former marriage is validly set aside,
a woman cannot marry a second husband in the life- time of her first
husband;" and in paragraph 75, it is stated that "A 'Karewa' marriage
with the brother or some other male relative of the deceased husband requires
no religious ceremonies, and confers all the rights of a valid marriage."
The marriage claimed by respondent No. 1 with Sunder Singh was described as a
'karewa' marriage. On the basis of the principles laid down in the above
paragraphs, it was urged that it should be held that respondent No. I could not
have entered into a valid marriage with Sunder Singh, while her first husband,
Tarlok Singh, was alive. It is, however, to be noted that in paragraph 72,
Rattigan himself makes an exception to the general rule, and recognises the
fact that, if there be a special custom, divorce can be resorted to even by
In earlier paragraphs of his book, Rattigan
has dealt with existence of special customs in the Punjab and, in dealing with
L Sup. CI/67-7 792 the Jats, he expressed the view that, as regards Jats, and
specially Sikh Jats who hold very liberal views on questions relating to
marriage and whose notions of sexual morality are lax, it will be difficult to
enunciate any general principles as are opposed to public policy. Then, he goes
on to say that custom in the Punjab is primarily tribal and not local, though
the custom of a particular tribe may and often does differ in particular
localities. Rattigon's conclusion is expressed by saying that it seems to be
clear that there is no uniform custom applicable to the whole of the Punjab.
Custom varies from time to time and from place to place.
It is in this background that we have to
consider further remarks recorded by Rattigan in paragraph 72 mentioned above,
where he says that, in one case, it was doubted whether, in Jullundur District,
a Hindu fat can divorce his wife. He also noticed a number of decisions
relating to divorce in the surrounding districts in which it was held that the
custom of divorce prevailed in almost identical terms in those districts. This
custom according to him, is that the husband is entitled to turn out his wife
and, if he does so, she is entitled to remarry. It was on the basis of these
observations of Rattigan that it was urged before us that the High Court
committed an error in relying on the circumstance that, in a number of
surrounding districts, it was found that the custom of divorce amongst the
Hindu Jats so prevalent could lead to an inference that a similar custom
prevailed in the district of Jullundur also. In Rattigan's book, by itself, we
are unable to find any proposition laying down that, in the district of
Jullundur, there is any custom among Hindu fats permitting divorce as claimed
by respondent No. 1. In fact, Rattigan leaves the question open by saying that
it has been doubted whether such a custom exists in the Jullundur District. He
also mentions the Riwaj-i-am of Jullundur District, but does not attach much
importance to it on the ground of its being un- reliable. Rattigan's book on
'Customary Law', in these circumstances, appears to us to be of little help in
arriving at a conclusion about the existence of a custom on divorce amongst the
Jats in Jullundur District.
The only other document relating to Jullundur
District available was the Riwaj-i-am of that district and learned counsel for
the appellant placed great reliance on it. He drew our attention to the
decision of their Lordships of the Privy Council in Kunwar Basant Singh v.
Kinwar Brij Rai -Saran Singh(1) where their Lordships held "The value of
the riwaj-i-am as evidence of customary law is well established before this
Board; the most recent decision is (1) 62 I.A. 180.
79 3 Vaishno Ditti v. Rameshri (1), in which
the judgment of the Board was delivered by Sir John Wallis, who states :
"It has been held by this Board that the
riwaj-i-am is a public record prepared by a public officer in discharge of his
duties and under Government rules; that it is clearly admissible in evidence to
prove the facts entered thereon subject to rebuttal; and that the statements
therein may be accepted even if unsupported by instances." Reliance was
also placed upon the principle laid down by this Court in Mahant Salig Ram v.
Musammat Maya Devi(2), where this Court held :
"There is no doubt or dispute as to the
value of the entries in the Riwaj-i-am. It is well- settled that though they
are entitled to an initial presumption in favour of their correctness
irrespective of the question whether or not the custom, as recorded, is in
accord with the general custom, the quantum of evidence necessary to rebut that
presumption will, however, vary with the facts and circumstances of each
case." The Court also approved of the principle laid down by the Lahore
High Court, indicating the circumstances in which Riwaj-i-am can be held to
prove a custom, and in that connection said :
"It has been held in Qamar-ud-Din v. Mt.
Fateh Bano(3) that if the Riwaj-i-am, oil which reliance is placed, is a
reliable and trustworthy document, has been carefully prepared, does not
contain within its four corners contradictory statements of custom, and in the
opinion of the Settlement Officer is not a record of the wishes of the persons
appearing before him as to what the custom should be in those circumstances the
Riwaj-i- am would be a presumptive piece of evidence in proof of the special
custom set up therein.
If, on the other hand, the Riwaj-i-am is not
a document of the kind indicated above, then such a Riwaj-i-am would have no
value at all as a presumptive piece of evidence." It is in the light of
these principles that we have to examine the value to be attached to the
Riwaj-i-am in Jullundur District which has been relied upon by learned counsel
for the appellant.
The Riwaj-i-am of Jullundar District appears
in the form of questions and answers and an extract of it has been placed
before us. In answer to the questions about the grounds on which a wife may be
divorced, whether change of religion is a sufficient cause and whether,a
husband may divorce his wife without (1)  L. R. 55 I.A. 407,421, (2)
 1. S. C. R. 1191.
(3)  I. L. R. 26 Lah. 110.
7 94 assigning any cause, the record states
that among all Muhammadans except Rajputs the Muhammadan Law is followed;
and a husband can divorce his wife without
assigning any reason. Among the Muhammadan Rajputs and all Hindus-no divorce is
recognised. But an exception is mentioned that the Kambohs of the Nakodar
Tahsil also divorce their wives.
They are not required to assign any cause. In
answer to the question as to what are the formalities which must be observed to
constitute a revocable or an irrevocable divorce, is was stated that among
Hindus there is no divorce except among Kambohs of the Nakodar Tahsil who give
'talaq' by executing a written deed.
Reliance is placed on the entry in the
Riwaj-i-am that the custom of divorce among Hindus does not exist in the
Jullundur District to urge that the High Court wrongly held that respondent No.
1 could be divorced by her first husband, Tarlok Singh, and could validly marry
Sunder Singh by Chadar Andazi. It, however, appears that the Riwaj-i-am of
Jullundur District is unreliable, and, according to the principle laid down by
this Court in the case of Mahant Salig Ram(1), such a Riwaj-i-am cannot be held
to prove that there was no custom of divorce among- Hindus in this district. It
does not appear necessary to refer to the various decisions of the Lahore High
Court on 'the question of unreliability of the Riwaj-i-am of Jullundur
It is enough to quote the latest decision of
the East Punjab High Court in Mohammad Khalil and Another v. Mohammad
Bakhsh(2). In that case., Bhandari J., delivering the judgment of the Bench,
reproduced the principle laid down by the Lahore High Court in Qamar-ud-Din
& Others(3), which was later approved by this Court in the case of Mahant
Salig Ram(1). ,and then proceeded to hold :- "Unfortunately, the
Riwaj-i-am of the Jullundur District cannot be regarded as a reliable or
trustworthy document, for, it has been held in a number of decided cases, such
as Zakar Hussain v. Ghulam Fatima(1), Ghulam Mohammad v. Balli(5), and Mt.
Sharaf Din(1), that it has not been prepared
with care and attention. It seems to me, therefore, that it is impossible to
accept the statements appearing therein at their face value." Learned
counsel for the appellant, however, urged before us that all these cases, in
which the Riwaj-i-am of Jullundur District ,was held to be unreliable, related
either to the custom about the right of succession to property of a daughter
against collaterals, (1) (1955) 1. S. C. R. 1191.
(3) A. I. R. (36) 1949 E.Pb. 252.
(5) A. I. R. (1 4) 1927 Lab. 261.
(2) I. I. R. 26 Lah. 110.
(4) A. 1. R. (18) 1931 Lah. 641.
(6) A. 1. R. (33) 1946 Lah. 426.
79 5 or about the right to execute wills and
gifts. None of these cases related to the custom of divorce and at least,
insofar as it records that there is no custom of divorce amongst Hindus in this
district, the Riwaj-i-am should be accepted. There are two reasons why we must
reject this contention. The first is that the Riwaj-i-am having been found
unreliable in respect of two customs, the inference clearly follows that it was
not drawn up carefully and correctly and, consequently it would not be safe to
rely even on other aspects of the Riwaj-i-am. The second, and which is the more
important reason, is that, in this particular case which is 'before us, the
evidence tendered by both the parties shows that this Riwaj-i-am has
incorrectly recorded the custom about the right of a Hindu husband of this
district to divorce his wife.
Respondent No. 1, in order to prove her case
as to the existence of the custom, has primarily relied on two pieces of
evidence. The first piece of evidence consisted of the Riwaj-i-am of the
neighbouring districts where there was a clear record that the custom of
divorce among Hindu Jats existed. The existence of such a custom. in the
neighbouring district, which surround the Jullundur District all around, is
certainly a relevant consideration for an inference that such a custom may be
prevalent in the Jul- lundur District also, particularly in view of Rattigan's
opinion that the custom is primarily tribal though also local. If the custom
existed among the tribes of Hindu Jats in all the districts surrounding the
district of Jullundur, it is probable that a similar custom exists in the
district of Jullundur also. The other piece of evidence relied upon was the
statements of a number of witnesses examined to prove that not only such a
custom existed, but also that instances were available showing that there had
been divorces in recent times. Respondent No. 1 has examined nine witnesses in
this behalf. The learned District Judge, in his report, did not place full
reliance on the testimony of these witnesses, but their evidence has been
accepted by the High Court. On behalf of the appellant also, a number of
witnesses were examined to prove the non-existence of a custom of divorce. It,
however, appears that the appellant's own witnesses belied his case. Several of
those witnesses clearly admitted that in this district a custom did exist
permitting a husband to divorce his wife. Three of the witnesses, Bhag Singh,
Karam Singh and Kartar Singh, who were examined on behalf of the appellant, in
their examination-in-chief itself, mentioned a custom under which a Zamindar
could divorce his wife, though they added that, if the husband divorces his
wife, the wife cannot contract Chadar Andazi during the life-time of her
husband. Ujagar Singh, another witness, in his cross-examination clearly
admitted that the husband can divorce his wife, but a wife cannot divorce her
husband. He can divorce her both verbally as well as in writing. Similarly,
Niranjan Singh, another 796 witness, stated that a husband can divorce his
wife, but a wife cannot divorce her husband. Gurdit Singh, in his examination
in chief, mentioned that a husband and wife could live separate from each other
and, in such a case, the wife could not contract Chadar Andazi during the
life-time of her first husband, and added that, if she contracted Chadar
Andazi, she could not inherit the property of her second husband. In
cross-examination, he stated that "there is no custom among us for
divorcing the wives with mutual consent". All these witnesses examined on
behalf of the appellant himself thus proved the existence of a custom under
which a Hindu Jat in the district of Jullundur could divorce his wife, though
all of them added a qualification that, in case a wife is divorced by a Hindu
husband, she is not entitled to a second marriage during the life-time of her
first husband. They all admit that a custom permitting, a Hindu Jat to divorce
his wife does actually exists in the district of Jullundur. Some of them, at
some stages of their evidence, tried to distinguish the right of a husband by
saying that he could desert his wife or that there ,could be separation between
the husband and the wife, but, at ,other stages, they admitted in clear words
that the custom recognised included the right of the husband to divorce his
wife. Thus, the record in the Riwaj-i-am that there is no such custom of
divorce among the Hindus of the Jullundur District, is proved to be incorrect
not only by the evidence of the witnesses examined ,on behalf of respondent No.
1, but even from the evidence given by the witnesses of the appellant. In these
circumstances, we hold that there is no force at all in the submission of the
learned counsel that this Riwaj-i-am could be held to be reliable insofar as it
records the absence of the custom, on the mere ground that in earlier cases the
unreliability of this Riwaj-i-am was found in regard to record of customs
relating to other matters.
There is no doubt that the witnesses examined
on behalf of the appellant, while admitting the existence of a custom
permitting a Hindu husband to divorce his wife, have added a qualification
that, if such a divorce is brought into effect by a husband, the wife cannot
legally contract a second marriage during his lifetime. This limited custom
sought to be proved by these witnesses does not. find support from the
Riwaj-i-am, nor is it in line with the principles laid down by Rattigan in his
book on 'Customary Law'. All that he stated in paragraph 74 of his book was
that " until the former marriage is validly set aside, a woman cannot
marry a second husband in the life-time of her first husband." We have
already held that, even according to the witnesses examined by the appellant, a
custom exists which permits a valid divorce by a husband of his wife and that
would dissolve the marriage. On the dissolution of such a marriage, there seems
to be no reason why the divorced wife cannot marry a second 797 husband in the
life-time of her first husband. It also appears to us incongruous to accept the
proposition put forward on behalf of the appellant that, though a wife can be
divorced by her husband, she is not at liberty to enter into a second marriage
and thus secure for herself means for proper living. In these circumstances,
the High Court committee no error in accepting the evidence given by witnesses
examined on behalf of respondent No. 1 who stated that the custom as prevailing
in the Jullundur District not only permitted divorce, but also recognised the
validity of second marriage of the divorced wife even in the life-time of her
first husband. The High Court was further right in relying on the instances
proved by the evidence of these witnesses of respondent No. 1 showing that a
number of divorced wives had actually contracted second marriages in the
life-time of the in husbands and these, marriages were recognised as valid
marriages by the members of 'their community.
The appeal, consequently, fails and is
dismissed with costs.
G.C. Appeal dismissed.