1955SCC64 (PLP)

TYABJI, C. J.--‑This is a second appeal from the judgment and decree passed by the District Judge of Hyderabad (Mr. Mehr) by which he reversed the decree passed in favour of the appellant by the Joint Subordinate judge of Hyderabad restraining respondent No. 1, the appellants husband, from marrying a second wife. The facts of this case are very briefly as follows The appellant is the wife of respondent No. 1 and alleged that her husband was about to marry a second wife. She alleged that there was a custom prevailing in the community of the Khudabadi Bhaibunds of Hyderabad, to which she and her husband belong, according to which a husband having one wife could not marry a second wire except in one of the following four cases : (1) when the first wife was mad, (2) when she was suffering from a loathsome and incurable disease, (3) when she had no chance of giving birth to a child l and (4) when her children were only daughters. She contended that her husband, respondent No. 1 had no right to marry another wife and she sued for an injunction to restrain him from marrying another woman. The main question in the suit was, whether it was proved that there was an ancient custom. invariable, continuous and notorious, according to which a second marriage by a husband belonging to the Khudabadi Bhaibund community of Hyder abad, which was not justified on one of the four grounds mentioned above, could not lawfully be entered into. The joint Subordinate Judge of Hyderabad decreed the appellant's suit. In reversing the decree on appeal the learned District Judge of Hyderabad stated as follows :‑ "I now turn to the principal contention in the appeal that the custom is not proved. My finding is that the custom is not proved. Under Hindu Law there is no restriction on a man having more wives than one. It has been held in numerous decisions of the High Court and the Privy Council that "in order to give effect to a custom which is set up and which is at variance with the ordinary Hindu Law it should be ancient, invariable, continuous notorious . . . and as regards instances in support of the custom they should be established by clear and unambiguous evidence and must be conclusive. I L R 51 Mad.

17. The evidence led in this case to prove the custom is as follows :‑ The plaintiff has examined four witnesses of whom two are her close relatives. Leaving aside these relatives who have no special knowledge of 'the custom there is the evidence of Menghraj and Harkishandas. Menghraj a member of Panchayat says there is no custom of marrying during the lifetime of one wife. He adds that there are 4 exceptional cases in which a man is allowed to have a second wife. In cross‑examination he shows no knowledge of well‑known cases in which several persons of importance married a second wife in the lifetime of the first e.g. Dayaram Gidumal, Rao Bahadur Chatursing and others. In cross‑examination he admits that one Nathirmal married a second wife after his wife went to the Om Mandli, and he was not driven out of the Panchayat, that one Assandas married in the life‑time of the first and the Panchayat objected, so that father drove out the son. Witness Harkishindas who is Mukhi of the Khudabadi Panchayat says that there is a custom of the Panchayat that a man cannot remarry unless (1) there is no male issue, (2) the wife is mad, (3) has incurable disease. He adds that if the wife is mad he can marry with the permission of Panchayat ; if the wife has daughters, then also he can marry with the permission of Panchayat. Thus the custom deposed to by him is in some respects different from the custom set up in the plaint and held proved by the Court. In cross‑examination the witness says, "I cannot say whether my paternal uncle Mukhi Alomal married during the lifetime of his first wife". He should and must have known this, being such a near relative. Witness adds that he can cite instances when hus bands remarried with the permission of the Panchayat e.g., Bulchand, Kimatrai and others ; but adds that Sirumal married a second wife without the Panchayat's permission, that Nathirmal married because his wife went to Om Mandli. This is all the oral evidence which is quite inadequate to prove the alleged custom. Reliance is placed on six decrees. Of these one was a decree following judgment of the Sub‑Judge, confirmed in appeal. The judgments are brief. The dispute was not taken to the Chief Court. The other decrees are all award decrees. In all these decrees reference is made to the Panchayat custom and not to a custom legally binding on community. The decrees do not recite a uniform custom. In suit 435 of 1937 and suit 11 of 1932 there is no reference to marriage being permissible if the wife has daughters only. The decree in suit 402 of 1938 does not recite in what circumstances a man can have a second wife. In my opinion the decrees which have been produced are not sufficient evidence to show that there has been an ancient, certain and invariable custom as pleaded by the plaintiff. Even if there were no evidence to rebut the evidence led for the plaintiff I should have held the custom to be not proved. The custom is not shown to be ancient and invariable and certain, and is not proved by clear and unambiguous evidence. The Mukhi has orally mentioned some cases in which persons marrying a second wife were fined by the Panchayat. It is not shown that the second wife was considered invalid or that the second wife was in such cases regarded as not lawfully married and only a mistress, or that the children from the second marriage were not allowed to inherit. It was observed by Sankaran Nair, J. in I L R 33 Mad. 342 :‑ "It does not follow that a marriage opposed to the usages of the communities and not recognised by them would be invalid. A marriage whatever else it is, i.e., a sacrament, an institution, is undoubtedly a contract entered into for consideration with correlative rights and duties. The Civil Courts Act only requires that so far as Hindus are concerned its validity must rest upon Hindu Law. i.e. as explained above the law of the Dharma Shastras as distinguished from caste rules or the caste law. If it is not recognised by the caste or caste rules, the parties may cease to belong to the castes whose usages they have violated and who would, therefore, expel them. There is nothing to prevent a man from giving up his caste or community. He is bound by the caste rules only on account of his voluntary submission and therefore, if the marriage is valid under the ordinary Hindu Law, they will be legally married even if such marriage is opposed to the rules of the caste or community to which they belong". In I L R 1 Born. 347 it was even held that the Courts al Law will not recognise the authority of a caste to declare a marriage void. It has not been alleged that in any of the cases in which Panchayats are alleged to have fined the persons who remarried against custom that the Panchayat or the community considered the marriage invalid or that any consequences which arise from an invalid or illegal marriage followed in these cases. In the only 'case in which it was sought to prosecute a Hindu of Hyderabad for marrying a second wife in the lifetime of the first (Sessions Case No. 50 of 1908) the Sessions Judge Hyderabad, held that the custom which is alleged in the case was not proved. This judgment was tendered in the lower Court but was not admitted as it was produced as late stage. In my opinion having regard to the importance and relevance of the case, the technical objection that it was produced at a late stage should note have been allowed to prevail. I now come to the evidence led by the defendants. By consent of parties the evidence led for the defendants in the connected case (suit No.' 230 of 1941) was brought on record in the lower Court, (vide Exh. 106). This evidence is to the effect that there have been instances in contraven tion of the alleged custom. Rao Bahadur Chatursing says that he married in the lifetime of his first wife and against her wishes and neither the Panchayat nor anyone raised objection. Witnesses have cited the case of Mr. Dayaram Gidumal, a former District Judge who is remembered as a sage and a writer of religious books and after whom the Arts College in Hyderabad is named. He married in the lifetime of his first wife though he had a son Kewalram by his first wife (Kewalram is still alive). Dewan Bahadur Hftanand, a former adviser to the Government married a second wife though he had several sons by his first wife. As regards the case of Mr. Dayaram Gidumal witness says that people were surprised at his second marriage but the Panchayat continued to have good relations with him. Witness Khushaldas has said that his son married 4 wives, the third in the lifetime of the second and no consent of the wife was taken. Witness was a Secretary of the United Panchayat and says that out of several cases of remarriage the Panchayat fined only one person 20 years ago because the reason given by the husband for marrying the second wife was not reasonable. He further says that there is no custom preventing a second marriage in the lifetime of the first wife. Witness Nihalchand a member of the Khudabadi Bhaibund Panchayat says that there is a custom prohibiting a "second marriage except when the first wife is immoral or there is disagreement between husband and wife". He accordingly held that the custom alleged had not been proved and dismissed the appellant's suit. We have been taken through the evidence given in the case by Mr. Fatehchand, the learned advocate who appears on behalf of the appellant. We consider that the evidence was on the whole adequately summarized by the learned District Judge and we can see no reason for taking a different view of the evidence from the one which he has taken, and we agree with him that the evidence fell very far short of proving the custom alleged, and in fact disproved it. Great reliance was placed on the six decrees referred to by the learned District Judge. They were all decrees passed in suits brought by the wife to restrain the husband from marrying a second wife during the plaintiff's lifetime. Several of these decrees were based on awards made on the dispute between the husband and the wife being referred to arbitra tion, and one of them was a compromise decree. We have examined these decrees. It is impossible to say that there was any adequate enquiry made with regard to the invariability of the custom alleged in any one of the cases in` which these decrees were passed, While therefore the decree's show that in the six instances the wives succeeded in obtaining orders from Courts restraining their husbands from marrying a .second time, alleging the custom now alleged to be an enforceable custom, the decrees prove nothing further. In no case was any appeal made to this Court and this Court has not therefore found that the evidence adduced in any case was sufficient to establish the custom alleged: The evidence given in the present case clearly establishes, as the learned District judge held, that there have been numerous instances in which members of the community had not followed the alleged custom and the second marriage was not regarded as invalid ; and it is to be noted that the instances relied upon by the defendant were mostly instances in which individuals holding very prominent positions in the community were concerned, such as R. B. Chatursing, Dayaram Gidumal, Dewan Bahadur Hiranand Khemsing, and Khushaldas Mithal das. It is probable that such instances among individuals who were less well known were far more numerous. The learned District judge quite rightly, we think, placed great reliance on the evidence of witness Khushaldas, the Secretary of the United Panchayat, who stated: "There have been several marriages during the life tune of the previous wife in the Panchayat consisting of Panchayats including the one to which I belong. I was Secretary of the United Panchayat. Out of several cases only in one case the husband was fined Rs. 500 and a provision for the previous wife was made. This happened about 20 years back. He was fined because the reasons of remarrying advanced by the husband were not reason able and sound. The re‑marriage is not forbidden by a custom but by a resolution passed by the Panchayat in that case only. Prior to this neither there was any custom nor any resolution forbiding the second marriage during, the lifetime of the previous wife: This resolution was confined to that case only and no resolution was passed for a subsequent marriage". In view of the numerous exceptions proved, and the evidence of Khushaldas, we are unable to see how it was possible to arrive at any other conclusion. We therefore see no reason to interfere in this matter and we dismiss this appeal with costs. A. H. Appeal dismissed.