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PETITIONER: GURDIT SINGH

       Vs.

RESPONDENT: MST.  ANGREZ KAUR alias GEJ KAUR alias   MALANAND OTHERS

DATE OF JUDGMENT: 25/04/1967

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA WANCHOO, K.N. (CJ) MITTER, G.K.

CITATION:  1968 AIR  142            1967 SCR  (3) 789

ACT: Custom-Divorce  among  Jats of Jullundur  District-Value  of Rattigan’s  Digest and Riwaj-i-Am in this  regard-Custom  in Surrounding districts can be basis of determining  existence of custom in Jullundur District.

HEADNOTE: S  married  A  after the latter had  been  divorced  by  her husband  T. The parties were Jats of Jullundur  District  in the  Punjab.  After the death of S a collateral of  his  got the  lands of S mutated in his favour.  A then filed a  suit claiming  the  land  as widow of S. Her marriage  to  S  was challenged on the ground that there was no custom among  the Jats  of Jullundur District permitting a divorced  woman  to remar ry in the life-time of her first husband, The, entries in  the Rattilgan’s digest and the Riwaj-i-am  of  Jullundur District came up for consideration. HELD  : Rattigan’s digest was not of help in arriving  at  a conclusion  about the existence of such a custom of  divorce among  the  Jats in Jullundur District.  ’Me  Riwaj-i-Am  of Jullundur District was unreliable as it had been so held  by courts. [792 F-G; 795 A-C] On  the basis-of the existence of a custom of divorce  among the Jats of districts surrounding Jullundur District and  on the  basis  of oral evidence adduced in the case,  the  High Court  rightly held that a custom of divorce  existed  among the  Jats of Jullundur District, and the custom permits  the divorced  women to marry in the life-time of her first  hus- band.   The  divorce of A by T being  valid  her  subsequent marriage  to  S  was also valid,  and  accordingly  she  was entitled to succeed to S’s property.  L797 B-C] Basant  Singh v. Kunwar Brij Rai Saran Singh, 62  I.A.  180, Vaishnoo  Ditt v. Rameshri, (1928) L.R. 55 I.A, 407,  Mahant Salig Ram v. Musammat maya Devi [1955] 1 S.C.R. 1191, Qamar- ud-din  v.  Mt.   Fateh Bano, (1943)  I.L.R.  26  Lab.  110, Muhammad Khalil v. Mohammad Baksh.  A.I.R. (36) 1949 E.  Pb. 252,  Zakar Hussain v. Ghulam Faima, A.I.R. (14)  1927  Lab. 261, Ghulam Mohammad v. Ball, A.I.R. (18) 1931 Lab. 641  and Mt.   Fatima  v.  Sharaf Din, A.I.R.  (33)  1946  Lab.  426, referred to.

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JUDGMENT: CIVIL APPFLLATE JURISDICTION: Civil Appeal No. 852 of 1964. Appeal  by special leave from the judgment and decree  dated August  24, 1962 of the Punjab High Court in Regular  Second Appeal No. 843 of 1956. Bishan Narain and A. G.  Ratnaparkhi, for the appellant. K.    C. Nayyar and Mohana Behar Lal, for respondent No. 1. 790 The Judgment of the Court was delivered by Bhargava,  J. This appeal has come up as a result of a  dis- pute  relating to succession to the property of  one  Sunder Singh.  Sunder Singh, on 4th November, 1950, executed a will in  respect  of his property in favour of his  niece,  Udham Kaur.  Subsequently, on 27th October, 1951, one Tarlok Singh executed  a document divorcing his wife, Mst.  Angrez  Kaur, respondent  No.  1 in this appeal, on the  ground  that  she frequently went away from his house without his consent  and whenever he made enquiries from her, she became furious with him.  In the document, he recited that Mst.  Angrez Kaur was no longer his wife and that she had gone to live with Sunder Singh.  According to respondent No. 1 on this divorce  being granted  to her by her first husband, Tarlok Singh, she  was married  to  Sunder  Singh by a  custom,  known  as  ’Chadar Andazi’.   On  7th  June, 1952,  Sunder  Singh  revoked  his previous will and, in that document, acknowledged Mst.  Ang- rez  Kaur as his wife and left the property to her.   Sunder Singh  died  in  1953.  Thereafter,  the  appellant,  Gurdit Singh,  who  was a collateral of Sunder Singh in  the  third degree,  applied  for  mutation.  On  12th  December,  1954, mutation of the property left by Sunder Singh was sanctioned in  favour of Gurdit Singh by the  authorities.   Thereupon, Mst.  Angrez Kaur filed a suit on 17th March, 1955, claiming the  property  as  widow of Sunder Singh.  The  trial  Court decreed  the  suit,  holding that  respondent  No.   I   had married Sunder Singh by ’Chadar Andazi’ and the marriage was valid.   On appeal, the Additional District Judge set  aside the decree of the trial Court and held that the marriage  of Mst.  Angrez Kaur with Sunder Singh during the life-time  of her  first  husband, Tarlok Singh, was invalid and  was  not justified by any custom and, consequently, she could not  be treated  as  the widow of Sunder Singh.  Respondent  No.  1, there  on,  appeale  to the High Court  of  Punjab  and  the learned Judge, who heard the appeal, felt that the  question of custom had not properly tried by the trial Court and the first appellate Court.  Consequently he framed the following issue :-               "Is there any custom amongst the tribes of the               parties  according to which the divorce  given               by  Tarlok  Singh  ’to Mst.   Angrez  Kaur  is               recognised enabling her to enter into a  valid               marriage by Chadar Andazi with Sunder  Singh?"               This issue was remitted to the trial Court for               recording  a finding after giving the  parties               an  opportunity  to  lead  further   evidence.               Further  evidence was led in the  trial  Court               which answered this issue in the negative  and               against respondent No. 1. The District  Judge,               in his report, endorsed the view of the  trial               Court.  The High Court, however, held that the               7 91               custom  was  proved under which  Mst.   Angrez               Kaur  could validly marry Sunder  Singh,  even               though  her first husband, Tarlok  Singh,  was

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             alive,  and,  consequently decreed  the  suit.               Gurdit Singh appellant has now come up to this               Court against this decree of the High Court by               special leave. As  is clear from the facts narrated above, the, only  issue that  arose in this case was whether respondent No. 1,  Mst. Angrez  Kaur,  had succeeded in proving the existence  of  a custom in the community to which she belonged, according  to which  Tarlok Singh, her first husband, could  divorce  her, whereupon she was at liberty to enter into a valid  marriage by  Chadar Andazi with Sunder Singh, whose property  is  now under dispute.  The parties are residents of the District of Jullundur  where,  according to Gurdit Singh  appellant,  no such  custom, as claimed by respondent No. 1 exists  amongst the  Jats, which is the caste to which the  parties  belong. To urge this point, learned counsel for the appellant relied before  us  on ’The Digest of Customary Law’ by  Sir  W.  H. Rattigan,  and on the ’Riwaj-i-am’ recorded at the  time  of the  settlement  in 1885 and 1914-15.  It  was  argued  that Rattigan’s Digest of Customary Law in the Punjab had  always been  treated as an authoritative exposition of the  customs prevailing  in the Punjab and had been accepted as  such  by the  Privy  Council  as  well  as  other  Courts  in  India. Reliance  was  placed  on para 72 at page 471  of  the  14th Edition  of Rattigan’s, ’Digest of Customary Law’, where  it is stated that "amongst Muhammadans of all classes a man may divorce a wife without assigning any reason; but this power, in the absence of a special custom, is not allowed to Hindus nor to females of any class".  In paragraph 74, he  proceeds to  lay down that "until the former marriage is validly  set aside,  a woman cannot marry a second husband in  the  life- time  of  her  first husband;" and in paragraph  75,  it  is stated  that "A ’Karewa’ marriage with the brother  or  some other  male  relative of the deceased  husband  requires  no religious ceremonies, and confers all the rights of a  valid marriage." The  marriage claimed by respondent No. 1 with Sunder  Singh was  described as a ’karewa’ marriage.  On the basis of  the principles  laid down in the above paragraphs, it was  urged that it should be held that respondent No. I could not  have entered  into a valid marriage with Sunder Singh, while  her first husband, Tarlok Singh, was alive.  It is, however,  to be  noted  that in paragraph 72, Rattigan himself  makes  an exception to the general rule, and recognises the fact that, if  there  be a special custom, divorce can be  resorted  to even by Hindus. In  earlier paragraphs of his book, Rattigan has dealt  with existence  of special customs in the Punjab and, in  dealing with L Sup.  CI/67-7 792 the  Jats, he expressed the view that, as regards Jats,  and specially Sikh Jats who hold very liberal views on questions relating  to marriage and whose notions of  sexual  morality are  lax,  it  will be difficult to  enunciate  any  general principles  as are opposed to public policy.  Then, he  goes on to say that custom in the Punjab is primarily tribal  and not  local, though the custom of a particular tribe may  and often  does  differ in  particular  localities.   Rattigon’s conclusion is expressed by saying that it seems to be  clear that  there is no uniform custom applicable to the whole  of the Punjab.  Custom varies from time to time and from  place to place. It  is in this background that we have to  consider  further remarks  recorded  by  Rattigan in  paragraph  72  mentioned

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above,  where  he  says that, in one case,  it  was  doubted whether, in Jullundur District, a Hindu fat can divorce  his wife.   He  also noticed a number of decisions  relating  to divorce  in the surrounding districts in which it  was  held that  the  custom of divorce prevailed in  almost  identical terms in those districts.  This custom according to him,  is that the husband is entitled to turn out his wife and, if he does so, she is entitled to remarry.  It was on the basis of these  observations of Rattigan that it was urged before  us that  the  High Court committed an error in relying  on  the circumstance that, in a number of surrounding districts,  it was found that the custom of divorce amongst the Hindu  Jats so  prevalent  could  lead to an inference  that  a  similar custom  prevailed  in the district of  Jullundur  also.   In Rattigan’s  book,  by  itself, we are  unable  to  find  any proposition laying down that, in the district of  Jullundur, there  is any custom among Hindu fats permitting divorce  as claimed  by respondent No. 1. In fact, Rattigan  leaves  the question  open  by saying that it has been  doubted  whether such  a  custom exists in the Jullundur District.   He  also mentions the Riwaj-i-am of Jullundur District, but does  not attach much importance to it on the ground of its being  un- reliable.   Rattigan’s  book on ’Customary  Law’,  in  these circumstances,  appears  to  us  to be  of  little  help  in arriving at a conclusion about the existence of a custom  on divorce amongst the Jats in Jullundur District. The  only  other  document relating  to  Jullundur  District available  was the Riwaj-i-am of that district  and  learned counsel  for the appellant placed great reliance on it.   He drew our attention to the decision of their Lordships of the Privy  Council  in Kunwar Basant Singh v.  Kinwar  Brij  Rai -Saran Singh(1) where their Lordships held "The value of the riwaj-i-am as evidence of customary law is well established before this Board; the most recent decision is (1)  62 I.A. 180. 79 3 Vaishno  Ditti v. Rameshri(1), in which the judgment of  the Board was delivered by Sir John Wallis, who states : "It  has  been held by this Board that the riwaj-i-am  is  a public  record prepared by a public officer in discharge  of his  duties and under Government rules; that it  is  clearly admissible  in evidence to prove the facts  entered  thereon subject to rebuttal; and that the statements therein may  be accepted even if unsupported by instances." Reliance  was  also placed upon the principle laid  down  by this  Court  in Mahant Salig Ram v. Musammat  Maya  Devi(2), where this Court held :               "There is no doubt or dispute as to the  value               of the entries in the Riwaj-i-am.  It is well-               settled  that though they are entitled  to  an               initial   presumption  in  favour   of   their               correctness   irrespective  of  the   question               whether or not the custom, as recorded, is  in               accord with the general custom, the quantum of               evidence  necessary to rebut that  presumption               will,   however,  vary  with  the  facts   and               circumstances of each case." The  Court also approved of the principle laid down  by  the Lahore  High  Court, indicating the circumstances  in  which Riwaj-i-am  can  be  held to prove a  custom,  and  in  that connection said :               "It  has  been  held in  Qamar-ud-Din  v.  Mt.               Fateh  Bano(3)  that if  the  Riwaj-i-am,  oil               which  reliance is placed, is a  reliable  and

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             trustworthy   document,  has  been   carefully               prepared,  does  not contain within  its  four               corners  contradictory statements  of  custom,               and  in the opinion of the Settlement  Officer               is  not a record of the wishes of the  persons               appearing  before  him as to what  the  custom               should be in those circumstances the  Riwaj-i-               am would be a presumptive piece of evidence in               proof  of the special custom set  up  therein.               If, on the other hand, the Riwaj-i-am is not a               document  of  the kind indicated  above,  then               such  a Riwaj-i-am would have no value at  all               as a presumptive piece of evidence." It  is  in  the light of these principles that  we  have  to examine  the  value  to be attached  to  the  Riwaj-i-am  in Jullundur  District  which has been relied upon  by  learned counsel for the appellant. The Riwaj-i-am of Jullundar District appears in the form of questions  and answers and an extract of it has been  placed before  us. In answer to the questions about the grounds  on which a wife may be divorced, whether change of religion  is a  sufficient  cause and whether,a husband may  divorce  his wife without (1) [1928] L. R. 55 I.A. 407,421, (2) [1955] 1. S. C. R. 1191. (3) [1943] I. L. R. 26 Lah.  110. 7 94 assigning  any  cause,  the record  states  that  among  all Muhammadans  except Rajputs the Muhammadan Law is  followed; and  a  husband can divorce his wife without  assigning  any reason.   Among  the Muhammadan Rajputs  and  all  Hindus-no divorce  is recognised.  But an exception is mentioned  that the Kambohs of the Nakodar Tahsil also divorce their  wives. They are not required to assign any cause.  In answer to the question  as  to  what are the  formalities  which  must  be observed  to  constitute  a  revocable  or  an   irrevocable divorce, is was stated that among Hindus there is no divorce except among Kambohs of the Nakodar Tahsil who give  ’talaq’ by executing a written deed. Reliance  is placed on the entry in the Riwaj-i-am that  the custom  of  divorce  among  Hindus does  not  exist  in  the Jullundur District to urge that the High Court wrongly  held that  respondent  No.  1  could be  divorced  by  her  first husband, Tarlok Singh, and could validly marry Sunder  Singh by Chadar Andazi.  It, however, appears that the  Riwaj-i-am of  Jullundur District is unreliable, and, according to  the principle  laid  down by this Court in the  case  of  Mahant Salig Ram(1), such a Riwaj-i-am cannot be held to prove that there  was  no  custom  of divorce  among-  Hindus  in  this district.   It  does not appear necessary to  refer  to  the various decisions of the Lahore High Court on ’the  question of  unreliability of the Riwaj-i-am of  Jullundur  District. It is enough to quote the latest decision of the East Punjab High  Court  in  Mohammad Khalil  and  Another  v.  Mohammad Bakhsh(2).   In  that  case., Bhandari  J.,  delivering  the judgment of the Bench, reproduced the principle laid down by the Lahore High Court in Qamar-ud-Din & Others(3), which was later  approved  by this Court in the case of  Mahant  Salig Ram(1). ,and then proceeded to hold :-               "Unfortunately,   the   Riwaj-i-am   of    the               Jullundur  District  cannot be regarded  as  a               reliable or trustworthy document, for, it  has               been  held in a number of decided cases,  such               as  Zakar Hussain v. Ghulam Fatima(1),  Ghulam               Mohammad  v.  Balli(5),  and  Mt.   Fatima  v.

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             Sharaf  Din(1), that it has not been  prepared               with  care  and attention.  It  seems  to  me,               therefore, that it is impossible to accept the               statements  appearing  therein at  their  face               value." Learned counsel for the appellant, however, urged before  us that  all these cases, in which the Riwaj-i-am of  Jullundur District  ,was held to be unreliable, related either to  the custom  about  the  right of succession  to  property  of  a daughter against collaterals, (1)  (1955) 1. S. C. R. 1191. (3)  A. I. R. (36) 1949 E.Pb. 252. (5)  A. I. R. (1 4) 1927 Lab. 261. (2)  I. I. R. 26 Lah.  110. (4)  A. 1. R. (18) 1931 Lah. 641. (6)  A. 1. R. (33) 1946 Lah. 426. 79 5 or  about  the right to execute wills and  gifts.   None  of these  cases related to the custom of divorce and at  least, insofar  as  it records that there is no custom  of  divorce amongst  Hindus in this district, the Riwaj-i-am  should  be accepted.   There  are two reasons why we must  reject  this contention.   The first is that the Riwaj-i-am  having  been found  unreliable in respect of two customs,  the  inference clearly  follows  that  it was not drawn  up  carefully  and correctly  and,  consequently it would not be safe  to  rely even  on other aspects of the Riwaj-i-am.  The  second,  and which  is  the  more  important reason,  is  that,  in  this particular  case which is ’before us, the evidence  tendered by   both  the  parties  shows  that  this  Riwaj-i-am   has incorrectly  recorded the custom about the right of a  Hindu husband of this district to divorce his wife. Respondent  No.  1,  in order to prove her case  as  to  the existence of the custom, has primarily relied on two  pieces of  evidence.  The first piece of evidence consisted of  the Riwaj-i-am  of the neighbouring districts where there was  a clear  record  that the custom of divorce among  Hindu  Jats existed.    The   existence  of  such  a  custom.   in   the neighbouring district, which surround the Jullundur District all  around,  is certainly a relevant consideration  for  an inference  that such a custom may be prevalent in  the  Jul- lundur  District  also, particularly in view  of  Rattigan’s opinion  that  the custom is primarily  tribal  though  also local.  If the custom existed among the tribes of Hindu Jats in all the districts surrounding the district of  Jullundur, it is probable that a similar custom exists in the  district of Jullundur also.  The other piece of evidence relied  upon was  the  statements of a number of  witnesses  examined  to prove  that  not only such a custom existed, but  also  that instances  were  available  showing  that  there  had   been divorces  in  recent times.  Respondent No. 1  has  examined nine witnesses in this behalf.  The learned District  Judge, in his report, did not place full reliance on the  testimony of these witnesses, but their evidence has been accepted  by the  High Court.  On behalf of the appellant also, a  number of  witnesses were examined to prove the non-existence of  a custom   of   divorce.   It,  however,  appears   that   the appellant’s own witnesses belied his case.  Several of those witnesses  clearly admitted that in this district  a  custom did  exist permitting a husband to divorce his wife.   Three of the witnesses, Bhag Singh, Karam Singh and Kartar  Singh, who  were  examined  on behalf of the  appellant,  in  their examination-in-chief itself, mentioned a custom under  which a  Zamindar could divorce his wife, though they added  that, if  the husband divorces his wife, the wife cannot  contract

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Chadar  Andazi during the life-time of her husband.   Ujagar Singh,  another  witness, in his  cross-examination  clearly admitted  that the husband can divorce his wife, but a  wife cannot  divorce  her  husband.   He  can  divorce  her  both verbally as well as in writing.  Similarly, Niranjan  Singh, another 796 witness,  stated that a husband can divorce his wife, but  a wife  cannot  divorce  her husband.  Gurdit  Singh,  in  his examination  in  chief, mentioned that a  husband  and  wife could live separate from each other and, in such a case, the wife  could not contract Chadar Andazi during the  life-time of  her  first husband, and added that,  if  she  contracted Chadar  Andazi,  she could not inherit the property  of  her second husband.  In cross-examination, he stated that "there is  no custom among us for divorcing the wives  with  mutual consent".   All  these witnesses examined on behalf  of  the appellant  himself  thus proved the existence  of  a  custom under  which a Hindu Jat in the district of Jullundur  could divorce  his wife, though all of them added a  qualification that, in case a wife is divorced by a Hindu husband, she  is not  entitled to a second marriage during the  life-time  of her first husband.  They all admit that a custom permitting, a Hindu Jat to divorce his wife does actually exists in  the district  of  Jullundur.  Some of them, at  some  stages  of their evidence, tried to distinguish the right of a  husband by saying that he could desert his wife or that there ,could be  separation  between the husband and the  wife,  but,  at ,other stages, they admitted in clear words that the  custom recognised included the right of the husband to divorce  his wife.   Thus, the record in the Riwaj-i-am that there is  no such  custom of divorce among the Hindus of the  Jullundur District, is proved to be incorrect not only by the evidence of  the witnesses examined ,on behalf of respondent  No.  1, but  even  from the evidence given by the witnesses  of  the appellant.  In these circumstances, we hold that there is no force  at all in the submission of the learned counsel  that this  Riwaj-i-am could be held to be reliable insofar as  it records  the absence of the custom, on the mere ground  that in  earlier cases the unreliability of this  Riwaj-i-am  was found  in  regard  to record of customs  relating  to  other matters. There  is no doubt that the witnesses examined on behalf  of the  appellant,  while admitting the existence of  a  custom permitting a Hindu husband to divorce his wife, have added a qualification that, if such a divorce is brought into effect by  a  husband, the wife cannot legally  contract  a  second marriage during his lifetime.  This limited custom sought to be proved by these witnesses does not. find support from the Riwaj-i-am, nor is it in line with the principles laid  down by  Rattigan  in his book on ’Customary Law’.  All  that  he stated  in  paragraph 74 of his book was that  "  until  the former marriage is validly set aside, a woman cannot marry a second  husband in the life-time of her first  husband."  We have already held that, even according to the witnesses exa- mined  by  the appellant, a custom exists  which  permits  a valid  divorce  by  a husband of his  wife  and  that  would dissolve  the  marriage.   On  the  dissolution  of  such  a marriage, there seems to be no reason why the divorced  wife cannot marry a second 797 husband  in  the life-time of her first  husband.   It  also appears  to  us incongruous to accept  the  proposition  put forward  on behalf of the appellant that, though a wife  can be  divorced by her husband, she is not at liberty to  enter

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into a second marriage and thus secure for herself means for proper  living.   In  these circumstances,  the  High  Court committee  no  error  in accepting  the  evidence  given  by witnesses examined on behalf of respondent No. 1 who  stated that the custom as prevailing in the Jullundur District  not only permitted divorce, but also recognised the validity  of second  marriage of the divorced wife even in the  life-time of  her first husband.  The High Court was further right  in relying  on  the instances proved by the evidence  of  these witnesses  of  respondent  No. 1 showing that  a  number  of divorced  wives had actually contracted second marriages  in the  life-time of the in husbands and these, marriages  were recognised  as  valid  marriages by the  members  of  ’their community. The appeal, consequently, fails and is dismissed with costs. G.C. Appeal dismissed. 798