& Anr Vs. L.V. Kulkarni & Anr  INSC 101 (28 March 1989)
K.N. (J) Saikia, K.N. (J) Oza, G.L. (J)
1989 AIR 1359 1989 SCR (2) 70 1989 SCC (2) 526 JT 1989 (1) 607 1989 SCALE
Law--Udiki form of marriage prevalent among Lingayats--Ancient and unbroken
custom of dissolution of marriage-Whether prevalent--Proof of----Section
57--Customs--Judicially recognised by Court--Passes in to law--Proof
unnecessary. Serai Udiki marriage among Panch a- masal Lingayats--Custom--Proof
is defendants' appeal arising out of a suit for partition.
Mallappa Kulkarni had two sons: Veerappa and Gurappa. Verrappa is survived by
his son Lingappa. Gurappa, who was in the service of Railways married Channavva
(first wife) on 16.2.28 but since she remained issueless, he remarried in 1955
Chinnavva (second wife). From this marriage two daughters were born viz.
Shakuntlabai arid Annapoornava.
upon the death of his second wife Gurappa is said to have married Nilavva accroding
to customary Udiki marriage.
retirement Gurappa settled permanently at Hub li where he had house, property etc.
After the death of Gurappa, his first wife Channavva claimed l/3rd share in the
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 the immovable properties left by Gurappa. In the suithe impleaded Channavva
(first wife) as Defendant No. 1 and the children from 2nd wife as Defendant
Nos. 2 & 3 and Nillava was impleaded as Defendant No. 4, who was described
as having illegal connections with the deceased Gurappa.
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 Defendant No. 4 was lawfully married wife of
2 to 4 appealed to the Civil Judge at Hub li impleading the plaintiff and
Defendant No. 1 as respodents.
Civil Judge 71 modified the decree and granted I/6th share holding the 4 th
defendant to be legally married wife of Gurappa. Being dissatisfied by the said
order, the plaintiff as also Defendants 2 & 3 filed appeals in the High
Court. The High 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 Court held that the 4th defendant was not legally married wife
of deceased Gurappa. Hence this appeal by Defendants 2 & 3 by special leave.
question that was agitated before this Court was:
proof of custom of Udiki marriage was adduced by the fourth defendant; and whether
Udiki marriage itself implied the dissolution of earlier marriage and if not,
whether separate custom of dissolution of the earlier marriage w as pleaded and
the appeal, this Court,
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 and 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 land
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 texts 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 have been customarily dissolved and that she was
subsequently legally married with Gurappa in the valid customary form of Udiki
marriage, where after, she lived with Gurappa as husband 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 the marriage illegal posthumously. [84F-H;
85A] 72 Virasangappa v. Rudrappa & Anr.,  I.L.R 8 Madr as 440;
Pakhali Jina Magan v. Bai Jethi, I.L.R. 1941 Bom. 53 5; Sankarlingam v. Subban,
 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
AIR 1925 PC 213; D.C. Bara Banki v. Receiver of the 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.
the Judgment and Decree dated 24.1. 1979 of the Karnataka High Court in Regular
Second Appeal Nos. 522 and 591 of 1973.
Datar for the Appellants.
Javali and Ranjit Kumar for the Respondents.
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.
Kulkarni had two sons Veerappa and Gurappa.
is survived by his son Lingappa. Gurappa, a railway employee, married Channavva
(first wife) on 16.2. 1928 but finding her issueless and sending her to her
parent's village, he married in 1935 his second wife Chinnavva who bore him two
daughters Shakuntalabai and Annapoornavva. Channavva (first wife) however used
to pay occasional visits to Gurappa. Chinnavva (second wife) died in 1943 where
after Gurappa is said to have married Nilavva. Gurappa retired in 1961 and settled
permanently at Hubli constructing the suit house and himself occupied a part
and let out the other part on ren t.
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.
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
having illegal connection with deceased Gurappa) as first, second, third and
fourth defendants, respectively, for partition of 1/3 share in the suit house
and the moveable properties, and for possession thereof. The first defendant
supported the case of the plaintiff; the other defendants contested the suit
and averred that the fourth defendant was lawful ly married wife of Gurappa. On
the pleadings the following issues, inter alia, were settled:
Whether the plaintiff proves the execution of the sa le deed by defendant No.
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?
Whether the plaintiff has derived any valid title by virtue of the sale deed in
Whether the defendant No. 4 proves that she is legally 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 the hands of
defendants 2 to 4 by metes and bounds. The second, 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 the 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 the plaintiff appealed in
R.S.A. 522/1973. The High Court by the 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 holding that the fourth
defendant was not legally married wife of Gurappa. Hence this appeal by
defendants two and three.
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 the fourth defendant was not legally
married wife of Gurap pa overlooked vital evidence on record in proof of her
customary Udiki marriage with Gurappa who himself declared her as his wife
wherefore she earned family pension after her husband's (Gurappa's) death. Mr.
S.S. Javali the learn ed counsel for the respondents submits that there was no
sufficient evidence to establish the custom of Udiki marriage and at any rate
no custom to support the dissolution of marriage of the fourth defendant with
her previous husband Gurulingappa was pleaded or proved. Mr. Datar replied that
the 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 the previous marriage and thereafter the Udiki marriage
of the fourth defendant with Gurappa.
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 the 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.
the records we find that the custom of Udiki marriage 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 Miraj in accordance with their caste custom and that
thereafter 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 bride- groom Gurappa and the Mangalsutra was
given by Gurappa aft er uttering Mantrums. The saree was worn by her and the
Mangalsutra was tied round her neck. Considering the above in the context of
issue No. 4 we entertain no doubt that the custom of Udiki marriage was
pleaded. It also appears that the custom of dissolution of marriage prevalent
amongst the caste was-also compositely pleaded to the above extent.
have to see whether the above custom or customs were proved by evidence.
would be logical first to take the question of custom of dissolu- 75 tion. In
the written statement filed by the second defendant it was stated that after Chinnavva's
death in 1943 Gurappa married the fourth defendant who divorced her first husband
Gurulingappa by mutual consent. We have, therefore, to see whether the custom
of Udiki marriage itself implied such prior dissolution. The relevant texts and
instances relied on may be referred to for this purpose.
Virasangappa v. Rudrappa & Anr.,  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 and 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 Rudrappa in
Udiki form Kusava was born. The defendant contend ed that the second marriage
of a wife forsaken by the first 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; and that Rudrappa married Rudrava in
the Serai Udiki form; and that the plaintiff and all the members of the family
and the 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 the children were considered legitimate. It was held that the parties
were Sudras, and the Lingayat owed its origin to Vasava who held that caste
distinctions were unworthy of acceptance and who repudiated Brahamanical
observed that the sect was particularly represented in Mysore, to a certain extent in Wynad, also
in ceded district in Coimbatore and the South Canara in Bombay Presidency and that
instances had been before the Court in which the remarriage of widows amongst
that sect had been supported. It was found that Rudrava was deserted by her
husband who had never consummated his martage and expressed himself ready to
return and live with Rudrava only on the condition that certain property was secured
to him by deed. When this 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 the family and there was proof to show that children of marriages
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 and initiated as the children born of a first 76 marriage. The court also
observed that in matters of this kind here say evidence like tradition may be
received and direct evidence of such marriages was not always possible and one
of the ways in which they might be proved was from the manner of their living
and from the way in which they were treated by the neighbouts. Kusava was
accordingly he ld legitimate.
Mayne's Treatise on Hindu Law and Usage 11th Edn. at page 175 it is said:
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 her 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 wife 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 continually quarrel; if the marriage was
irregularly concluded; if by mutual consent the husband breaks his wife's neck
ornament, and gives her a chorchittee (writing of divorcement), or if he has
been absent and unheard of for twelve years. Should he afterwards return, she may
live with either party at her own option, the person deserted being reimbursed
his marriage 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 second 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.
Bombay districts of Belgaum and Bijapur one-third of the population
is Lingayat, and in the adjacent district of Dharwar they constitute nearly 50
per cent of the total.
the limits of the Bombay Presidency, Lingayats a re numerous in the Mysore and Hyderabad States. They also form an important
element 77 in the population of the north-west corner of the Madras Presidency.
to that Encyclopaedia the Lingayats are Dravidian, that is to say, they belong
to a stock that w as established in India before the arrival of the Aryans.
Brahamanic triad--Brahma, Vishnu and Siva--they acknowledge only the god Siva,
whose emblem, the linga, they bear on their persons. All wearers of the linga
were proclaim ed equal in the eyes of God. The traditional Lingayat teacher is
Basava. The denial of the supremacy of the Brahman s, coupled with the
assertion of the essential equality of all men, constituted a vital departure
from the doctrines of orthodox Hinduism. Other important innovations were: the
prohibition of child-marriage; the removal of all restriction on widows
remarrying. The Lingayats according to the Encyclopaedia appear to consist of
three groups of sub divisions
Panchamsalis with full astavarna rites
NonPanchamsalis with astavarna rites
is without astavarana rites.
astavarna or eightfold sacrament is a principal Lingayat ceremony. While
describing the Lingayats marriage ceremony it goes on to say that the tying of
the tali is the binding portion of the ceremony. Before the tali is given to
the bridegroom, it is passed round the assembly to be touched by all and
blessed. As soon as the bridegroom ties it on the bride, all those present throw
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
remarriage of widows was one of the points on which Basava insisted, and was probably
one of the biggest bones 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 the growth of custom. It also says: "Among
Lingayats widow remarriage is common, and divorce is permissible. The ordinary
law of Hindus is followed in regard to the inheritance." The Gazetteer of
Bombay State, Dharwar District, 19 59 contains a description of Lingayats
marriage and the marriage rules. At page 138 it says: "The Lingayats do not
allow the children of brothers to intermarry, nor may sister's children.
Marriage with a mother's sister's daughter is also prohibited. A man may marry
his sister's daughter, but if the sister be a younger sister such marriage is
looked on with disfavour. Widow marriage is allowed at the present day, except
amongst Jangamas. Divorce is permissible. The chief feature of the 78 actual
marriage ceremony is the tying on of the mangalsutra (bride's luck
neck-thread), is performed by the bridegro om under the Jangama's discretion.
The ceremony begins by the mathapad bowing to the mangalsutra, and proclaiming
that it is about to be tied to the bride's neck. The bridegroom lays his right
hand on the bride's fight hand, the mathapati la ys the lucky thread on the
boy's hand. The teacher gives the 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 followed and that divorce is permitted
on proof of misconduct.
husband can exercise his right to divorce his wife by proving before a
Panchayat the alleged misconduct. The wife can only claim to divorce her
husband when he has be en out casted. Wives who have been divorced cannot
remarry. The above answers are given on the authority of the Ujjini mutt.
goes on to say: "There appears to be considerable divergence of opinion in
other quarters. By some it is positive ly asserted that divorce is not
permitted under any circumstances; that the husband and wife may separate on the
ground of incompatibility of temper or for misconduct; and that in these circumstances
the husband is at liberty to marry again, while the wife is not. Others say
that divorce is permitted, and that both parties are at liberty to remarry."
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
marriage is known as serai udiki (giving a cloth); as distinguished 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, however, prevailed only
amongst the lower classes, especially in the Bombay Presidency. Customs to be
recognised by the Court must be valid. Though Hindu law did not contemplate
divorce, still in those districts, where it was recognised as an established
custom, it had the force of law. In Sankarling am v. Subban,  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 caste 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 them by consent could divorce and were 79 divorced by parties approaching
the headman and other relations, paying certain amount and taking away tali or the
sacred thread from round the wife's neck and giving it back 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. Bai 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 not repugnant to Hindu Law. When it was contended that the 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 mary Law in British India,
"divorce is not contemplated by the Hindu Law but it is not repugnant to
its principles, and if there be a well established custom in its support, it m
ay override the general provisions of that law." It was further observed that there had been many
cases in our Courts ar t- sing out of divorce in the lower castes. 1n all those
cases even where it was held that the divorce had not been properly granted, it
had been taken for granted that the custom of divorce can validly exist in a
particular community, especially if it is a sudra community, but that divorce
grant ed cannot be forced by the caste against an Unwilling person.
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 presumption of legitimacy,
as vice and immorality are not usual ly attributed to such association between
a man and a woman.
Rahi v. Govinda Valad Teja,  77 I.L.R 1 Bom 97 the legitimacy of 'Pat' or
'Pata' or 'Natra' marriages among the 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 though forbidden in the present age
(Kaliyug) to twice born caste s, it was not forbidden to sudras and that Manu
appeared to have limited the prohibition to the twice born classes. This 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:
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 lost his caste, in
these five calamities a woman may take another husband.
Kautilya's Arthasastra (See R Shamasastry, 2nd Ed. p. 189) which has been
claimed to have been a work during the period 32 1-296 B.C., anterior,
therefore, to Manu and 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 husband 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 the 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.
Hindu Law also said:
ya acarah paramparyakramagatah; Varnanam santa i- ralanam sa sadachara uchyate.
that obtains from generation to generation among the pure and mixed classes is
next question is whether the custom of Udiki marriage would be a valid custom
under law. In Edward v. Je n- kins,  1 Ch.D. 308 the characteristics of a
valid custom are stated. They are, that it must be of immemorial existence, it
must be reasonable, it must, be certain and it must be continuous. Every custom
must have to be in existence preceding memory of man and if the proof was carried
back as far as living memory would go, it should be presumed that the right
claimed had existed from time of legal memory. 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 usages modifying the ordinary law, (in that case of successio n) that
they should be ancient and invariable; it is further essential that they should
be established to be so, by clear and unambiguous evidence and that it is only
by means of such findings that the Courts can be assured of their existence and
that they possess the conditions of antiquity and 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.
Privy Council in Raja Rajendra Narain v. Kumar Gangananda & Ors., AIR 1925
PC 213, held that after the 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 reason that such an evidence is allowable
as an explanation to the 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 destroy 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 process. 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 priori 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 Evidence Act. However, nothing need be proved of which the Courts can take
judicial notice. When a custom has been judicially recognised by the Court then
it passes into the law of the land as proof of it becomes unnecessary under
Section 57(1) of the Evidence Act. "In regard to marriage", says Sir
Gooroodas Banerjee, "the ordinary Hindu Law does not, and cannot, form the
common rule for all sects alike." Examining the written statements and the
evidence adduced 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 prior husband's name was one Gurulingappa.
When I was aged about 16 or 17 years, my marriage with Gurulingappa was
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, the
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 dissolution 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
Gurulingappa that he did not require me as his wife. That declaration w as
followed by our mutual expression of liberty to marry anot her spouse. That was
approved by the elders present then." In cross-examination on behalf of
the plaintiff she said:
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 the marriage. There was no other reason for the dissolutio n.
13 years after my marriage with Gurulingappa, the 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 her knowledge her's was the only case where there was dissol u- tion in
their family from the time of their ancestors. Her mother was married in usual
form and not in Udiki form. N or her brothers or sisters got a dissolution of
their marriages. 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 fourth defendant
testified about her re-marriage with Gurappa.
to him there was a custom in the Lingayat commun i- ty for dissolution of the
marriage and he could give out 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 eider sister was also
married in Udiki form. He did not give the 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 defendant took place in
his Railway Quarters at Hubli. Outsider s, namely, Shri S.R. Hiremath, N.M.
Patil were present. Among his relations, his eider sister, his cousin,
Gurulingapp a, his sister and the fourth defendant were present. He had 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 and the fourth defendant
and in view of the fact that she h ad expressed her intention for dissolution,
he had no objection for dissolution. Thereafter, Hiremath, Patil and his relations
also consented for the dissolution of the marriage.
mother removed the Tali from the neck of the fourth defendant and handed over
the same to Gurulingappa.
thereafter, went away telling thathe was at liberty to marry again; and he
later had married again.
clearly stated that as per the custom of the caste, the re was nothing more to
be done for the dissolution. This witness further deposed that in 1943, the
Udiki marriage of the fourth defendant took place at Miraj. At the time of r e-
marriage she was aged about 19 or 20 years. Parappa contacted Gurappa for the
re-marriage. Gurappa brought his father with him and the re-marriage was fixed.
He got his eider sister and his brother-in-law from Bijapur. His mother
Rachappa and his wife were present at the time of re-marriage in addition to
those who came from Bijapur. Gurap pa and Jamakhandi were already there. A
priest was officiating the re-marriage. The lady who had already undergone Udiki
marriage was requested to present the clothes to the bridegroom 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 the priest who
enchanted some Mantrum and, thereafter, it w as given to Gurappa who in turn
tied it round the neck of the 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 the ends of the clothes of
bride and bridegroom who thereafte r, prostrated before the elders to receive
appears that this witness was thoroughly cross-examined but could not be
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 the marriage. He gives vivid description of the ceremony including
the persons who were present. He testified that the priest enchanted mantrum
and thereafter handed over the Guladali to Gurappa and, as directed by the
priest to tie Guladali around the neck of his wife, Gurappa tied the Guladali.
Mr. Datar says Guladali meant Tali. The clothing was presented by each 84 party
to the other. As per the direction of the priest the 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.
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 that his
marriage with the fourth defendant was dissolved, thus fully corroborating the
other witnesses. He clearly depos ed that the fourth defendant's mother removed
the Tali from her neck and gave it to him and he took it, went home and subs e-
quently married again.
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 not 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 plaint she was described as having had illegal connections
learned counsel for the respondents submits that all the witnesses were near
relations and hence could not be believed. We do not agree. All elders were not
relatives and their corroborated testimony could not be discarded. The second
and third defendants in their written statemen ts asserted that Neelava was
legally married wife of Gurappa.
High Court ignored these vital pieces of evidence which the learned Civil Judge
the above evidence on record, appreciated in the light of the case law on the
subject and the authoritative texts as discussed above relating to the custom
of dissolution and Udiki form of marriage prevalent among the Lingayats 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 already
judicially noticed by the Courts, and that the marriage of the fourth defendant
with Gurulingappa was proved to have been customarily dissolved and that she
was subsequent ly legally married with Gurappa in the valid customary form of
Udiki marriage, where after, 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 the marriage illegal posthumously.
result is that this appeal is allowed, the judgment of the High Court is set aside
and the judgment and decree of the Civil Judge are restored, without any order
as to costs.