Holding

The ancient, unbroken custom of Udiki marriage and dissolution among Panchamasale Lingayats was proved, making the fourth defendant a lawful wife of Gurappa.

Summary

The plaintiff sought a one‑third share in the immovable and movable property of the deceased Gurappa. The defendants included Gurappa's first wife, his daughters, and a fourth defendant who claimed to be Gurappa's lawful wife under the customary Udiki marriage after a prior marriage to Gurulingappa was dissolved. The key issue was whether the custom of Udiki marriage and its associated dissolution were proved, and whether such a marriage automatically dissolved the earlier marriage. The Supreme Court held that the custom of Udiki marriage and dissolution among the Panchamasale Lingayats is ancient, unbroken, and judicially recognised, and that the evidence established both the dissolution of the earlier marriage and the subsequent Udiki marriage. Consequently, the fourth defendant was a lawful wife of Gurappa, and the appeal was allowed, setting aside the High Court judgment and restoring the trial court decree.

Issues considered

Whether the custom of Udiki marriage among the Lingayats was proved.
Whether Udiki marriage itself implies dissolution of a prior marriage.
Whether a separate custom of dissolution of the earlier marriage was pleaded and proved.
Whether the fourth defendant was a legally married wife of the deceased Gurappa.

Legislation cited

Indian Evidence Act, 1872s. 57(1)

Subjects

Udiki marriagedissolution of marriagecustomary lawHindu lawpartition suitSection 57 Evidence ActLingayat customsspecial leave appeal

Judgment

SHAKUNTALABAI & ANR.
A
v.
L.V. KULKARNI & ANR.

MARCH 28, 1989

B [G.L. OZA AND K.N. SAIKIA, JJ.)

Hindu Law-Udiki form of marriage prevalent among Lin-
gayats-Ancient and unbroken custom of dissolution of marriage-
Whether prevalent-Proof of-Section 57-Customs-Judicially recog-
nised by Court-Passes into law-Proof unnecessary. Serai Udiki mar-
riage among Panchamasal Lingayats-Custom-Proof of
c
This is defendants' appeal arising ont of a suit for partition.

One Mallappa Kulkarni had two sons: Veerappa and Gurappa.
Verrappa is survived by his son Lingappa. Gurappa, who was in the
D 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 add
Annapoornava. Consequent upon the death of his second wife Gurappa
is said to have married Nilavva accroding to customary Udiki marriage.

E After retirement Gurappa settled permanently at Hubli where he
had house, property etc. After the death of Gurappa, his first wife
Channavva claimed '!3rd share in the property. Having failed to get the
same, she sold her \!Jrd share to Lingappa. Lingappa also could not
procure the I/3rd share from defendants by mutual negotiation. There-
upon he filed a suit for partition claiming his '!3rd share in the immov-
F able properties left by Gurappa. In the suit he impleaded Channavva
(first wife) as Defendant No. I and the children from 2nd wife as
Defendant Nos. 2 & 3 and Nillava was impleaded as Defendant No. 4,
who was de~cribed as having illegal connections with the deceased
Gurappa.

G The Additional Munsiff, Hubli who tried the suit passed a pre-
liminary decree for partition of '!3rd share of Gurappa '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 Gurappa.

Defendants 2 to 4 appealed to the Civil Judge at Hubli impleading
H the plaintiff and Defendant No. I as respodents. The Civil Judge
70
•
SHAKUNTALABAI v. L.V. KULKARNI 71

modified the decree and granted I /6th share holding the 4th defendant
A
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 \/,rd
share and dismissed the defendant's appeal. The High Court held that
the 4th defendant was not legally married wife of deceased Gurappa. B
Hence this appeal by Defendants 2 & 3 by special leave.

The question that was agitated before this Court was: Whether
proof of custom of Udiki marriage was adduced by the fourth defen-
dant; and whether Udiki marriage itself implied the dissolution of
earlier marriage and if not, whether separate custom of dissolution of
the earlier marriage was pleaded and proved. c
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. D
Customs cannot be extended by analogy and it cannot be established by
a priori method. [SIB. El

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 E
under section 57(1) of the Evidence Act. [81F)

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 religious sect following teachings of Basava, the Court enter- F
tains no doubt that there has been ancient and unbroken customs of
dissolution of marriage and of Serai Udiki marriage among 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 cus- G
tomary form of Udiki marriage, whereafter, she lived with Gurappa as
husband and wife until Gurappa died, and that, thereafter, she enjoyed
the family pension by dint of her being nominated as wife of Gurappa to
the knowledge of all concerned. She was accepted by the community as
wife of Gurappa even after his death. There is, therefore, no scope for
declaring the marriage illegal posthumously. [84F-H; SSA) H
72 SUPREME COURT REPORTS [1989) 2 S.C.R.

A
Virasangappa v. Rudrappa & Anr., [1885) I.L.R 8 Madras 440;
Pakhali Jina Magan v. Bai Jethi, I.L.R. 1941 Born. 535; Sankarlingam
-e
v. Sub ban, [1894 I 17 Madras 479; Shivalingiah v. Chowdamma, A.I.R.
1956 Mys. 17; Rahi v. Govinda Valad Teja, [1876-77) I.L.R. I Born. 97;
Edward v. Jenkins, [1896) 1 Ch.D. 308; Mohammed Ibrahim v. Shaik
Ibrahim, AIR 1922 P.C. 59; Ramalakshmi Ammal v. Sivanantha
B Perumal Sethurayar, 14 M.I.A. 570; Raja Rajendra Narain v. Kumar
Gangananda & Ors., AIR 1925 PC 213; D.C. Bara Banki v. Receiver r-
of the Estate of Chaudhry & Ors., AIR 1928 PC 202; Effuah Amissah ~
v. Effuah Krabah, AIR 1936 P.C. 147; Saraswati v. Jagadambal, AIR
1953 SC 201 and Uzagar Singh v. Mst. Jeo, AIR 1959 SC 1041, referred ~

to.
c CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3373
of 1979. x
From the Judgment and Decree dated 24.1.1979 of the Karna-
taka High Court in Regular Second Appeal Nos. 522 and 591of1973.
D
R.B. Datar for the Appellants.

S.S. Javali and Ranjit Kumar for the Respondents.

The Judgment of the Court was delivered by
E
K.N. SAIKIA, J. This defendants' appeal by special leave is
from the judgment of the High Court of Karnataka dated 24. l. 1979 in
regular Second Appeal Nos 522/1973 and 591/1973 which arose out of
the following facts.

F Mallappa Kulkarni had two sons Veerappa and Gurappa. ,f-
~-
Veerappa 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
G
whereafter 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 rent. After
the death of Gurappa on 29 .11.1976 his issueless first wife Channavva
demanded 1/3 share in his moveable and immoveable properties, but
H finding it difficult to acquire her share sold her right to 1/3 share to
--".
'
\
SHAKUNTALABAI v. LV. KULKARNI [SAIKIA, J.]

Lingappa son of late Veerappa on 29.3.1967 for .Rs.5,000. The other A
73

heirs having rejected Lingappa's request for partition he instituted
O.S. No. 387/1968 in the Court of Additional Munsif, Hubli implead-
ing Channavva, Shakuntalabai, Annapoornavva and Nilavva (describ-
ing 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 posses- B
sion thereof. The first defendant supported the case of the plaintiff;
-I the other defendants contested the suit and averred that the fourth

- defendant was lawfully married wife of Gurappa. On the pleadings the
following issues, inter alia, were settled:

"1. Whether the plaintiff proves the execution of the sale
deed by defendant No. 1? c
2. Whether the 1st defendant proves that she had valid
title to the suit property and the alienation by her in favour
of the plaintiff is valid and legal?
D
3. Whether the plaintiff has derived any valid title by vir-
tue of the sale deed in his favour?

4. Whether the defendant No. 4 proves that she is legally
wedded wife of the deceased Gurappa?"
E
On 13.1.1971 the trial Court passed a preliminary decree 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 learned Civil Judge by his judgment dated 21.2.1973
confirmed the decree only modifying it to the extent of 1/6 share
instead of 1/3 share holding the fourth defendant to be legally married
F

wife of Gurappa. The second, third and fourth defendants 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
f, allowed the plaintiff's appeal R.S.A. No. 522 restoring the decree of G
the trial 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.

Mr. R.B. Datar, the learned counsel for the appellants, stating
that the case hinges on the question of validity of fourth defendant's H
74 SUPREME COURT REPORTS 11989] 2 S.C.R.
~
marriage, submits that the High Court while holding that the fourth
A
defendant was not legally married wife of Gurappa 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 hnsband's (Gurappa's) death. Mr. S.S. Javali
the learned counsel for the respondents submits that there was no
B sufficient evidence to establish the custom of Udiki marriage and at r
~
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 sufficient evidence in support of the custom of dissolution of the
previous marriage and thereafter the Udiki marriage of the fourth
c defendant with Gurappa. .,.,.-

The questions, therefore, are whether sufficient proof of custom
of Udiki marriage was adduced by the fourth defendant; and whether
Udiki marriage itself implied the dissolution of the earlier marriage,
D and if not, whether separate custom of dissolution of her earlier mar-
riage was pleaded and proved. These were the questions in issue No. 4.

From the records we find that the custom of Udiki marriage was
pleaded by the fourth defendant, in her written statement, stating that -j-
after the death of Chinnavva (second wife) in the year 1943 Gurappa
E married her (fourth defendant) 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 his 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 f
F belonged and that there was a custom for dissolution of marriage in her
sub-sect. She also described the formalities of Udiki form of marriage
that a saree and a blouse were handed to her by the bridegroom
Gurappa and the Mangalsutra was given by Gurappa after 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
G 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.
We have to see whether the above custom or customs were proved by
evidence.

H It would be logical first to take the question of custom of dissolu-
SHAKUNTALABAI v. L.V. KULKARNI ISAIKIA, J.] 75
~
tion. In the written statement filed by the second defendant it was
A
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 relevaut texts
and instances relied on may be referred to for this purpose.
1 B

'
In Virasangappa v. Rudrappa & Anr., [1885] I.LR. 8 Madras
440 the questions were whether Kusava, daughter of Rudrava, who
married Rudrappa was legitimate being born.in lawful wedlock accord-
ing 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
7( was 12 or 13 years old and out of Rudrava's next marriage with c
Rudrappa in Udiki form Kusava was born. The deferldant contended
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 D
form; and that_ the plaintiff and all the members of the family and the
caste recognised that marriage and Kusava was, therefore, legitimate
and entitled to inherit. In that case evidence 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 part.ies were Sudras, and the Lingayat owed its E
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 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 F
had been supported. It was found that Rudrava was deserted by her
husband who had never consummated his marrage and expressed him-
self ready to return and live with Rudrava only on the condition that
certain property was secured to him by deed. When this reque't was
not acceded to, he took no further interest in Rudrava and left her
f. without information about him and did not prevent her from forming a G
new connection. It was also in evidence that Rudrava was treated as a
lawfully wedded wife both by the appellant and by the other members
of the fam.ily and there was proof to show that children of marriages
contracted by wives deserted by their husbands were 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 H
76 SUPREME COURT REPORTS [1989) 2 S.C.R.

marriage. The court also observed that in matters of this kind heresay
A 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 Jiving and from the way
in which they were treated by the neighbours. Kusava was accordingly
held legitimate.
B (
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
c Narada. Among the Jat population of the Pubjab, 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 rights
of a lawful wife. The same rule exists among the Lingayats
of South Kanara. In Western India, the second marriage of
D a wife or widow (called Pat by the Maharattas, and Natra in
Gujarat) is allowed among all the lower cas!es. The cases in
which a wife may remarry are stated by Mr. Steele as being,
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
E ornament, and gives her a chorchittee (writing of divorce-
ment), 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 con-
sidered more honourable than a wife' but children by pat
F are equally legitimate with those by a first marriage. The
right of divorce and second marriage has been repeatedly
affirmed by the Bombay Courts."

In Encyclopaedia of Religion and Ethics edited by James
Hastings Vol. 8 Page 69 we find that the Lingayats are a religious
G community in India, numbering nearly three millions at the census of >
1911, of whom more than half are found in the southern districts of the
Bombay Presidency. In the 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. Beyond the
limits of the Bombay Presidency, Lingayats are numerous in the
H Mysore and Hyderabad States. They also form an important element
SHAKUNTALABAI v. L.V. KULKARNI (SAIKIA, J.] 77

in the population of the north-west comer of the Madras Presidency.
A
According to that Encyclopaedia the Lingayats are Dravidian,
that is to say, they belong to a stock that was established in India
before the arrival of the Aryans. Of the 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 B
were proclaimed equal in the eyes of God. The traditional Lingayat
teacher is Basava. The denial of the supremacy of the Brahamans,
coupled with the assertion of the essential equality of all men, con-
stituted 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 C
according to the Encyclopaedia appear to consist of three groups of
sub divisions (1) Panchamsalis with full astavarna rites (2) Non-
Panchamsalis with astavarna rites (3) Non-Panchamsalis without
astavarana rites. The astavarna or eightfold ~acrament is a principal
Lingayat ceremony. While describing the Lingayats marriage cere-
mony it goes on to say that the tying of the tali is the binding portion of D
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 some cummin seed and jagri, or
unrefined sugar, on the bride's head, and the bride does the same to
the bridegroom. E

The 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 allowed at the present day, but
the authorities at Ujjini see fit to disregard it. They say that among
jangams it is prohibited and.that among the other classes of Lingayats F
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, 1959 contains
a description of Lingayats marriage and the marriage rules. At page G
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, eJJ<cept
amongst Jangamas. Divorce is permissible. The chief feature <>f the H
78 SUPREME COURT REPORTS [ 1989) 2 S.C.R.

A actual marriage ceremony is the tying on of the mangalsutra (bride's
luck neck-thread), is performed by the bridegroom under the Jan-
gama's discretion. The ceremony begins by the mathapati 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 right
hand, the mathapati lays the lucky thread on the boy's hand. The
B teacher gives the order to tye on the lucky thread and the bridegroom
ties it on the girl's neck." r
~-
In the Castes and Tribes of Southern India by Edgar 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
c misconduct. The 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 been outcasted. Wives who
have been divorced cannot remarry. The above answers are given on
the authority of the Ujjini mutt. It goes on to say: "There appears to
D be considerable divergence of opinion in other quarters. By some it is
positively asserted that divorce is not permitted under any cir-
cumstances; that the husband and wife may separate on the ground of
incompatibility of temper or for misconduct; and that in these cir-
' cumstances 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
E 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."

F 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
G recognised as an established custom, it had the force of law. In
Sankarlingam v. Subban, [1894] 17 Madras 479 divorce by consent was
held valid as a matter of custom of the Pakhali caste of Ahmedabad
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
H disagreement between them by consent could divorce and were
SHAKUNTALABAI v. L.V. KULKARNI [SAIKIA, J.] 79

divorced by parties approaching the headman and other relations, A
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 enforced against the wishes of his wife that the
custom permitted divorce wonld be illegal. In Pakhali Jina Magan v.
Bai Jethi, I.L.R. 1941 Born 535 it was held that a custom of divorce
with mutual consent of husband and wife stated to exist among the B
i 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 was
observed that would be going too far and that it was observed in
Tagore Law Lectures, 1908, on Customs and Customary Law in
British India, "divorce is not contemplated by the Hindu Law but it is c
not repugnant to its principles, and if there be a well established
custom in its support, it may override the general provisions of that
law." It was further observed that there had been many cases in our
Courts arising out of divorce in the lower castes. In all those cases even
where it was held that the divorce had not been properly granted, it D
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 granted cannot be forced by the caste against an unwilling
person.

In Shivalingiah v. Chowdamma, A.LR. 1956 Mys 17 it has been E
held that when a woman lives for a number of years in close association
with a man and bears children who are acknowledged by the man as
born to him, relations and persons of the village treat them as such,
there is a presumption of legitimacy, as vice and immorality are not
usually attributed to such association between a man and a woman. In
Rahi v. Govinda Va/ad Teja, [1876] 77 I.L.R 1 Born 97 the legitimacy F
of 'Pat' or 'Pata' or 'Natra' marriages among the Marathas of Bombay
Presidency was accepted. Relying on Hindu law of Strange and the
statement of Mr. Steele who in his Law and Custom of Hindoo castes,
which has been accepted as authority by the Courts, said that in that
Preside'lcy though forbidden in the present age (Kaliyug) to twicebom
castes, it was not forbidden to sudras and that Manu appeared to have G
limited the prohibition to the twiceborn classes. This has been referred
to by Sir Gooroodas Bannerjee in his Tagore Law Lectures on Hindu
Law of Marriage and Stridhana, lecture VI. Devala expressly permit-
ted re-marriage of all classes. Narada also said:

"Nashte mrite prabrajite klaibe cha patite patau; Pan- H

•
80 SUPREME COURT REPORTS [1989] 2 S.C.R.

chaswapatsu narinang patih anyo bidhiate." l..
A
In cases of first husband having perished, or died naturally or
gone abroad, or if he is impotent, or have lost his caste, in these five
calamities a woman may take another husband.

B In Kautilya's Arthasastra (See R Shamasastry, 2nd Ed. p. 189)
which has been claimed to have been a work during the period 321-296
B.C., anterior, therefore, to Manu and Yajnavalkya, said: "If a
husband either is of bad character, or is long gone abroad or has
~
r
become a traitor to his king, or is likely to endanger the life of his wife,
-=:
or has fallen from his caste, or has lost virility, he may be abandoned
by his wife." He further writes: "A woman hating her husband cannot
c dissolve her marriage with him again! his will. Nor can a man dissolve
his marriage with his wife against her will. But from mutual enmity, )(
divorce may be obtained (parasparam dveshanmokshah). If a man,
apprehending danger from his wife, des!fes divorce (mokshamich-
chhet), he shall return to her whatever she was given (on the occasion
D of her marriage). If a woman, under the apprehension of danger from
her husband, desires divorce, she shall forfeit her claim to her prop-
erty; 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. --+
E
Ancient Hindu Law also said:
~

Tasmindesha ya acarah paramparyakramagatah;
Varnanam santaralanam sa sadachara uchyate. ~-
.~

F Practice that obtains from generation to generation among the pure
and mixed classes is called sadachara. ../-
,
The next question is whether the custom of Udiki marriage
would be a valid custom under law. In Edward v. Jenkins, [1896] 1
Ch.D. 308 the characteristics of a valid custom are stated. They are,
G 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 A
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 ch~imed had existed from time of legal memory. This was
reiterated in Mohammed Ibrahim v. Shaik Ibrahim, AIR 1922 P.C. 59.
H In Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar, 14 M.LA.
SHAKUNTALABAI v. L.V. KULKARNI ISAIKIA, J.] 81

570, it was held that it was the essence of special usages modifying the A
ordinary law, (in that case of succession) 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 cer-
tainty on which alone their legal title to recognition depends. Custom B
must be proved and the burden of proof is on the person who asserts it.

The Privy Council in Raja Rajendra Narain v. Kumar Gan-
gananda & Ors., AIR 1925 PC 213, held that after the existence of a
custom for some years has been proved by dirett 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 explaoation to the C
general rule. In D.C. Bara Banki v. Receiver of the Estate of Chaudhry
& Ors., AIR 1928 PC 202, it has been held that breach of a custom in a
particular instance need not destroy it for all times. In Effuah Amissah
v. Effuah Krabah, AIR 1936 P.C. 147, it was held that material
customs must be proved in the first instance by calling witnesses D
acquainted with them until a particular custom has by frequent proof
in the Court becomes so notorious that the Courts take judicial notice
of it. A custom cannot be extended by logical process. In Saraswati v.
··~ Jagadambal, AIR 1953 SC 201, it has been held that oral evidence as
to instances which can be proved by documentary evidence cannot be
fairly relied upon to establish custom when no satisfactory explanation E
for 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, laid down tbat 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 F
recognised by the Court then it passes into the law of tbe 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.''
G
Examining the written statements and the evidence adduced in
this case we find that the fourth defendant Neelava 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 Guruling-
appa. When I was aged about 16 or 17 years, my marriage with
Gurulingappa was dissolved. The dissolution of the marriage took H
82 SUPREME COURT REPORTS [1989] 2 S.C.R.
j
place in the house of my elder brother Parappa Sallapur at Hubli. In
A
the presence of one N.M. Patil, S.R. Hiremath, the then Chief
Officer, my elder sister and her husband and my mother's brother's
son one Rachappa, my prior husband Gurulingappa, the dissolution
took place. When I was aged about 23 or 24 years, my marriage with
the late Gurappa took 1place at Miraj." The marriage which took place
B at Miraj was in Udiki form. There was a custom of Udiki form of 1"'
I
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 Guru!-
ingappa was effected by my declaration in the presence of elders, that I
••

~

did not require Gurulingappa as my husband and by similar declara-
tion by Gurulingappa that he did not require me as his wife. That
c declaration was followed by our mutual expression of liberty to marry
another spouse. That was approved by the elders present then." In ~
cross-examination on behalf of the plaintiff she said: "Since my mar-
riage with Gurulingappa had been performed when I was too young
and since I did not desire to continue as his wife, a situation arose for
D the dissolution of the marriage. There was no other reason for the
dissolution. Abou113 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 was residing in my
parent's house." She also deposed that to her knowledge her's was the -i..
only case where there was dissolution in their family from the time of
E their ancestors. Her mother was married in usual form and not in
Udiki form. Nor her brothers or sisters got a dissolution of their mar-
riages. She also did not know if there were instances of dissolution of
marriages among the relations of Gurulingappa. She denied the
suggestion that there was no dissolution of the marriage and that she
continued to be the wife of Gurulingappa. DW-8 Parappa, elder ~
F brother of the fourth defendant testified about her re-marriage with
Gurappa. According to him there was a custom in the Lingayat com-
,,._
munity for dissolution of the marriage and he could give out certain
instances of U diki form of marriage in their family, relations and
friends. In his own family his elder sister's marriage was gone through
in Udiki form. His wife's elder sister was also married in Udiki form.
G 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. Outsiders, namely, Shri S.R.
Hiremath, N.M. Patil were present. Among his relations, his elder
sister, his cousin, Gurulingappa, his sister and the fourth defendant
H were present. He had written a letter to S.R. Hiremath requesting him
SHAKUNTALABAI v. L.V. KULKARNI [SA!KIA, J.J 83

), to come over there. He requested the other persons also to come
A
there. It was about 7.30 or 8.00 P.M. when the dissolution took place.
The fourth defendant expressed that she had been married during her
childhood and she was not going to continue with Shri Gurulingappa.
Gurulingappa also expressed that in view of the big disparity in age
between himself and the fourth defendant and in view of the fact that
she had expressed her intention for dissolution, he had no objection B
1 \
for dissolution. Thereafter, Hiremath, Patil and his relations also con-
~ sented for the dissolution of the marriage. Parappa's mother removed
the Tali from the neck of the fourth defendant and handed over the
4
same to Gurulingappa. 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, there was nothing
more to be done for the dissolution. This witness further deposed that c
j, in 1943, the Udiki marriage of the fourth defendant took place at
Miraj. At the time of re-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 elder sister
and his brother-in-law from Bijapur. His mother Rachappa and· his D
wife were present at the time of re-marriage in addition to those who
came from Bijapur. Gurappa 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 handed
over to the priest who in tum gave it to the bride. Presentation of saris E
and blouses was made by Udiki forrn of marriage. Mangalsutra had
been brought and it was given to the priest who enchanted some Man-
trum and, thereafter, it was given to Gurappa who in tum tied it round
the neck of the fourth defendant. The above said function of tying
....._ Mangalsutra took place in God's room. Then the married couple
' offered their pranams to God. Thereafter, the priest tied the ends of F
-~ the clothes of bride and bridegroom who thereafter, prostrated before
the elders to receive their blessings. It appears that this witness was
thoroughly cross-examined but could not be dislodged.

DW-9 Gangadhara deposed that he knew as to Gurappa having
been married in Udiki forrn and that the fourth defendant Neelava was G
:x. his Udiki. wife. He wa~present at the marriage. He gives vivid descrip-
tion 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 H
84 SUPREME COURT REPORTS 11989 I 2 S.C.R.

party to the other. As per the direction of the priest the bride made J
A pranams to the elders present there. This witness too was thoroughly
cross-examined but could not be shaken from his testimony.

DW-10 Neelakantappa Patil corroborated DWs.8 and 9 in
material particulars. DW-11 Rachappa testified to the dissolution of
B the fourth defendants marriage with Gurulingappa in vivid details.
DW-12 Gurulingappa himself testified that his marriage with the ,
1--'
fourth defendant was dissolved, thus fully corroborating the other ii
witnesses. He clearly deposed that the fourth defendant's mother
removed the Tali from her neck and gave it to him and he took it, went ~

home and subsequently married again.
c Mr. Datar states on behalf of the second & third defendants that
Neelava is dead and that while she was alive she was addressed as )(
younger mother by the children. It is not denied that till her death she
en joyed 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
D wife of Gurappa by the members of the community though in the
plaint she was described as having had illegal connections with
Gurappa.
The 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
E testimony could not be discarded. The second and third defendants in
their written statements asserted that Neelava was legally married wife
of Gurappa. The High Court ignored these vital pieces of evidence
which the learned Civil Judge rightly considered.

From the above evidence on record, appreciated in the light of ~
F the case law oo the subject and the authoritative texts as discussed ,J>·
above relating to the custom of dissolution and Udiki form of marriage
prevalent among the Lingayats who are a religious sect following
teachings of Basava, we entertain no doubt that there has been ancient
and unbroken customs of dissolution of marriage and of serai Udiki
marriage among the Pnachamasale Lingayats which was already judi-
G cially 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 subsequently legally married with Gurappa
in the valid customary form of Udiki marriage, whereafter, she lived
with Gurappa as husband and wife until Gurappa died, and that there-
after she enjoyed the family pension by dint of her being nominated as
H

(
SHAKUNTALABAI v. L.V. KULKARNI [SAIKIA, J.] 85

wife by Gurappa to the knowledge of all concerned. ·she was accepted A
by the community as wife of Gurappa even after his death. There is,
therefore, no scope for declaring the marriage illegal posthumously.

The 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. B

Y.L. Appeal allowed.