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PETITIONER: SHAKUNTALABAI & ANR.

       Vs.

RESPONDENT: L.V. KULKARNI & ANR.

DATE OF JUDGMENT28/03/1989

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) OZA, G.L. (J)

CITATION:  1989 AIR 1359            1989 SCR  (2)  70  1989 SCC  (2) 526        JT 1989 (1)   607  1989 SCALE  (1)737

ACT:             Hindu  Law--Udiki form of marriage prevalent among  Li n-         gayats--Ancient  and unbroken custom of dissolution of  ma r-         riage-Whether         prevalent--Proof         of----Secti on         57--Customs--Judicially  recognised  by  Court--Passes  in to         law--Proof  unnecessary. Serai Udiki marriage among  Panch a-         masal Lingayats--Custom--Proof of.

HEADNOTE:         This is defendants’ appeal arising out of a suit for  part i-         tion.             One Mallappa Kulkarni had two sons: Veerappa and  Gura p-         pa.  Verrappa is survived by his son Lingappa. Gurappa,  w ho         was  in  the service of Railways  married  Channavva  (fir st         wife) on 16.2.28 but since she remained issueless, he rema r-         ried in 1955 Chinnavva (second wife). From this marriage t wo         daughters  were  born viz. Shakuntlabai  arid  Annapoornav a.         Consequent upon the death of his second wife Gurappa is sa id         to  have married Nilavva accroding to customary  Udiki  ma r-         riage.             After  retirement Gurappa settled permanently  at  Hub li         where he had house, property etc. After the death of  Gura p-         pa,  his  first wife Channavva claimed l/3rd  share  in  t he         property. Having failed to get the same, she sold her  1/3

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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  t he         immovable  properties  left by Gurappa. In the suit  he  i m-         pleaded  Channavva (first wife) as Defendant No. 1  and  t he         children  from 2nd wife as Defendant Nos. 2 & 3 and  Nilla va         was  impleaded  as  Defendant No. 4, who  was  described as         having illegal connections with the deceased Gurappa.             The 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 Defenda nt         No. 4 was lawfully married wife of Gurappa.             Defendants  2 to 4 appealed to the Civil Judge at  Hub li         impleading the plaintiff and Defendant No. 1 as  respodent s.         The Civil Judge         71         modified the decree and granted I/6th share holding the  4 th         defendant  to  be  legally married wife  of  Gurappa.  Bei ng         dissatisfied  by the said order, the plaintiff as  also  D e-         fendants  2  & 3 filed appeals in the High Court.  The  Hi gh         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  Cou rt         held that the 4th defendant was not legally married wife of         deceased  Gurappa. Hence this appeal by Defendants 2 & 3 by         special leave.             The  question that was agitated before this  Court  wa s:         Whether proof of custom of Udiki marriage was adduced by t he         fourth defendant; and whether Udiki marriage itself  impli ed         the  dissolution  of earlier marriage and  if  not,  wheth er         separate  custom of dissolution of the earlier marriage  w as         pleaded and proved.         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

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by         logical  process. Customs cannot be extended by analogy  a nd         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  la nd         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  tex ts         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  ha ve         been  customarily  dissolved and that she  was  subsequent ly         legally married with Gurappa in the valid customary form of         Udiki  marriage, whereafter, 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         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  t he         marriage illegal posthumously. [84F-H; 85A]         72             Virasangappa  v. Rudrappa & Anr., [1885] I.L.R 8  Madr as         440; Pakhali Jina Magan v. Bai Jethi, I.L.R. 1941 Bom.  53 5;         Sankarlingam  v. Subban, [1894] 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,

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       14  M.I.A. 570; Raja Rajendra Narain v. Kumar  Gangananda

JUDGMENT:         Ors., AIR 1925 PC 213; D.C. Bara Banki v. Receiver of    t he         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.             From  the  Judgment and Decree dated 24.1. 1979  of  t he         Karnataka  High Court in Regular Second Appeal Nos. 522  a nd         591 of 1973.         R.B. Datar for the Appellants.         S.S. Javali and Ranjit Kumar for the Respondents.         The 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.             Mallappa  Kulkarni  had two sons Veerappa  and  Gurapp a.         Veerappa is survived by his son Lingappa. Gurappa, a railw ay         employee,  married Channavva (first wife) on 16.2. 1928  b ut         finding  her issueless and sending her to her parent’s  vi l-         lage, he married in 1935 his second wife Chinnavva who  bo re         him two daughters Shakuntalabai and Annapoornavva. Channav va         (first wife) however used to pay occasional visits to Gura p-         pa. Chinnavva (second wife) died in 1943 whereafter  Gurap pa         is said to have married Nilavva. Gurappa retired in 1961 a nd         settled permanently at Hubli constructing the suit house a nd         himself occupied a part and let out the other part on  ren t.         After 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.

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       The  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  havi ng         illegal connection with deceased Gurappa) as first,  secon d,         third and fourth defendants, respectively, for partition of         1/3 share in the suit house and the moveable properties, a nd         for  possession thereof. The first defendant  supported  t he         case  of the plaintiff; the other defendants  contested  t he         suit  and  averred that the fourth  defendant  was  lawful ly         married  wife  of Gurappa. On the  pleadings  the  followi ng         issues, inter alia, were settled:         "1.  Whether the plaintiff proves the execution of the  sa le         deed by defendant No. 1?         2. 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?         3.  Whether  the plaintiff has derived any  valid  title by         virtue of the sale deed in his favour?         4.  Whether the defendant No. 4 proves that she  is  legal ly         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  t he         hands of defendants 2 to 4 by metes and bounds. The  secon d,         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  t he         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  t he         plaintiff appealed in R.S.A. 522/1973. The High Court by t he         impugned  judgment dated 24.1. 1979 allowed the  plaintiff ’s         appeal  R.S.A.  No. 522 restoring the decree  of  the  tri al

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       Court  for 1/3 share and dismissed R.S.A.  591/1973  holdi ng         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  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 t he         fourth  defendant  was not legally married wife  of  Gurap pa         overlooked vital evidence on record in proof of her  custo m-         ary Udiki marriage with Gurappa who himself declared her as         his  wife  wherefore  she earned family  pension  after  h er         husband’s  (Gurappa’s)  death. Mr. S.S. Javali  the  learn ed         counsel for the respondents submits that there was no suff i-         cient evidence to establish the custom of Udiki marriage a nd         at any rate no custom to support the dissolution of marria ge         of  the fourth defendant with her previous husband  Guruli n-         gappa  was  pleaded or proved. Mr. Datar  replied  that  t he         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  t he         previous  marriage and thereafter the Udiki marriage of  t he         fourth defendant with Gurappa.             The  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  t he         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.             From  the records we find that the custom of Udiki  ma r-         riage  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  Mir

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aj         in  accordance with their caste custom and  that  thereaft er         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  brid e-         groom Gurappa and the Mangalsutra was given by Gurappa aft er         uttering Mantrums. The saree was worn by her and the Manga l-         sutra was tied round her neck. Considering the above in  t he         context of issue No. 4 we entertain no doubt that the cust om         of  Udiki  marriage was pleaded. It also  appears  that  t he         custom  of  dissolution of marriage  prevalent  amongst  t he         caste  was-also compositely pleaded to the above extent. We         have to see whether the above custom or customs were  prov ed         by evidence.         It would be logical first to take the question of custom of         dissolu-         75         tion. In the written statement filed by the second defenda nt         it  was stated that after Chinnavva’s death in 1943  Gurap pa         married the fourth defendant who divorced her first  husba nd         Gurulingappa  by mutual consent. We have, therefore, to  s ee         whether  the  custom of Udiki marriage itself  implied  su ch         prior  dissolution. The relevant texts and instances  reli ed         on may be referred to for this purpose.             In  Virasangappa  v. Rudrappa & Anr.,  [1885]  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  a nd         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

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       13 years old and out of Rudrava’s next marriage with Rudra p-         pa  in Udiki form Kusava was born. The  defendant  contend ed         that  the  second marriage of a wife forsaken by  the  fir st         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;  a nd         that  Rudrappa married Rudrava in the Serai Udiki form;  a nd         that the plaintiff and all the members of the family and t he         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  t he         children  were considered legitimate. It was held  that  t he         parties  were  Sudras, and the Lingayat owed its  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 distri ct         in Coimbatore and the South Canara in Bombay Presidency  a nd         that instances had been before the Court in which the rema r-         riage of widows amongst that sect had been supported. It w as         found that Rudrava was deserted by her husband who had nev er         consummated  his  martage  and expressed  himself  ready to         return  and  live with Rudrava only on  the  condition  th at         certain  property  was  secured to him by  deed.  When  th is         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  t he         family  and  there was proof to show that children  of  ma r-         riages  contracted by wives deserted by their husbands  we re         not  regarded as inferior in any respect to the  parties

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to         the  suit  and were received in the Maths of  the  sect  a nd         initiated as the children born of a first         76         marriage.  The court also observed that in matters  of  th is         kind  heresay  evidence like tradition may be  received  a nd         direct  evidence of such marriages was not  always  possib le         and  one of the ways in which they might be proved was  fr om         the  manner of their living and from the way in  which  th ey         were treated by the neighbouts. Kusava was accordingly  he ld         legitimate.             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         Narada.  Among the Jat population of the Punjab, not only  a         widow,  but a wife who has been deserted or put away by  h er         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 wi fe         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  continual ly         quarrel;  if the marriage was irregularly concluded;  if by         mutual consent the husband breaks his wife’s neck  ornamen t,         and gives her a chorchittee (writing of divorcement), or if         he  has been absent and unheard of for twelve years.  Shou ld         he afterwards return, she may live with either party at  h er         own  option, the person deserted being reimbursed  his  ma r-         riage 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  seco nd         marriage has been repeatedly affirmed by the Bombay Courts ."

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           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. In         the Bombay districts of Belgaum and Bijapur one-third of t he         population  is  Lingayat, and in the  adjacent  district of         Dharwar  they  constitute nearly 50 per cent of  the  tota l.         Beyond  the limits of the Bombay Presidency,  Lingayats  a re         numerous in the Mysore and Hyderabad States. They also  fo rm         an important element         77         in  the  population of the north-west corner of  the  Madr as         Presidency.             According  to that Encyclopaedia the Lingayats are  Dr a-         vidian,  that  is to say, they belong to a  stock  that  w as         established  in India before the arrival of the  Aryans. Of         the Brahamanic triad--Brahma, Vishnu and Siva--they acknow l-         edge  only the god Siva, whose emblem, the linga, they  be ar         on  their persons. All wearers of the linga were  proclaim ed         equal  in the eyes of God. The traditional Lingayat  teach er         is  Basava.  The denial of the supremacy  of  the  Brahman s,         coupled with the assertion of the essential equality of  a ll         men,  constituted  a vital departure from the  doctrines of         orthodox  Hinduism.  Other important innovations  were:  t he         prohibition  of child-marriage; the removal of all  restri c-         tion  on widows remarrying. The Lingayats according  to  t he         Encyclopaedia  appear  to  consist of three  groups  of  s ub         divisions  (1)  Panchamsalis with full astavarna  rites  ( 2)         NonPanchamsalis  with astavarna rites  (3)  Non-Panchamsal is         without astavarana rites. The astavarna or eightfold  sacr a-         ment is a principal Lingayat ceremony. While describing  t he         Lingayats marriage ceremony it goes on to say that the tyi ng         of  the tali is the binding portion of the ceremony.  Befo re

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       the tali is given to the bridegroom, it is passed round  t he         assembly  to be touched by all and blessed. As soon  as  t he         bridegroom  ties  it on the bride, all those  present  thr ow         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 the bridegroom.             The remarriage of widows was one of the points on  whi ch         Basava  insisted, and was probably one of the biggest  bon es         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  t he         growth  of  custom.  It also says:  "Among  Lingayats  wid ow         remarriage is common, and divorce is permissible. The  ord i-         nary   law   of  Hindus  is  followed  in  regard   to   t he         inheritance."             The  Gazetteer of Bombay State, Dharwar  District,  19 59         contains  a description of Lingayats marriage and  the  ma r-         riage  rules.  At page 138 it says: "The  Lingayats  do  n ot         allow  the children of brothers to intermarry, nor may  si s-         ter’s  children. Marriage with a mother’s sister’s  daught er         is  also prohibited. A man may marry his sister’s  daughte r,         but  if  the  sister be a younger sister  such  marriage is         looked  on with disfavour. Widow marriage is allowed at  t he         present  day, except amongst Jangamas. Divorce is  permiss i-         ble. The chief feature of the         78         actual marriage ceremony is the tying on of the  mangalsut ra         (bride’s  luck neck-thread), is performed by the  bridegro om         under  the Jangama’s discretion. The ceremony begins by  t he         mathapad bowing to the mangalsutra, and proclaiming that it         is about to be tied to the bride’s neck. The bridegroom la ys         his right hand on the bride’s fight hand, the mathapati la ys         the  lucky thread on the boy’s hand. The teacher  gives  t he         order to tye on the lucky thread and the bridegroom ties

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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  fo l-         lowed and that divorce is permitted on proof of  misconduc t.         The  husband can exercise his right to divorce his  wife by         proving before a Panchayat the alleged misconduct. The  wi fe         can  only  claim  to divorce her husband when  he  has  be en         outcasted. Wives who have been divorced cannot remarry.  T he         above answers are given on the authority of the Ujjini mut t.         It goes on to say: "There appears to be considerable  dive r-         gence of opinion in other quarters. By some it is positive ly         asserted  that  divorce is not permitted under  any  circu m-         stances;  that  the  husband and wife may  separate  on  t he         ground  of incompatibility of temper or for misconduct;  a nd         that  in  these circumstances the husband is at  liberty to         marry again, while the wife is not. Others say that  divor ce         is permitted, and that both parties are at liberty to rema r-         ry." 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  ma r-         riage  is known as serai udiki (giving a cloth); as  disti n-         guished 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,  howe v-         er, prevailed only amongst the lower classes, especially in         the Bombay Presidency. Customs to be recognised by the Cou rt         must be valid. Though Hindu law did not contemplate divorc e,         still  in  those districts, where it was  recognised  as an         established custom, it had the force of law. In Sankarling am         v. Subban, [1894] 17 Madras 479 divorce by consent was  he ld

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       valid as a matter of custom of the Pakhali caste of  Ahmed a-         bad  observing  that there was nothing immoral  in  a  cas te         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 th em         by consent could divorce and were         79         divorced by parties approaching the headman and other  rel a-         tions,  paying  certain amount and taking away tali  or  t he         sacred thread from round the wife’s neck and giving it  ba ck         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.  B ai         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 n ot         repugnant  to  Hindu  Law. When it was  contended  that  t he         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 m-         ary  Law in British India, "divorce is not  contemplated by         the Hindu Law but it is not repugnant to its principles, a nd         if there be a well established custom in its support, it m ay         override the general provisions of that law." It was furth er         observed  that there had been many cases in our Courts  ar t-         sing out of divorce in the lower castes. 1n all those  cas es         even where it was held that the divorce had not been prope r-         ly granted, it had been taken for granted that the custom of         divorce  can validly exist in a particular community,  esp e-         cially if it is a sudra community, but that divorce  grant ed         cannot be forced by the caste against an Unwilling person.             In Shivalingiah v. Chowdamma, A.I.R. 1956 Mys 17 it  h as

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       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  presum p-         tion  of legitimacy, as vice and immorality are not  usual ly         attributed to such association between a man and a woman. In         Rahi  v.  Govinda Valad Teja, [1876] 77 I.L.R 1 Bom  97  t he         legitimacy of ’Pat’ or ’Pata’ or ’Natra’ marriages among t he         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 thou gh         forbidden in the present age (Kaliyug) to twiceborn  caste s,         it  was  not forbidden to sudras and that Manu  appeared to         have limited the prohibition to the twiceborn classes.  Th is         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:         "Nashte 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 lo st         his caste, in these five calamities a woman may take anoth er         husband.             In Kautilya’s Arthasastra (See R Shamasastry, 2nd Ed. p.         189)  which has been claimed to have been a work during  t he         period  32  1-296  B.C., anterior, therefore,  to  Manu  a nd         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  husba nd         cannot dissolve her marriage with him against his will.  N or

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       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  t he         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.         Ancient Hindu Law also said:         Tasmindesha ya acarah paramparyakramagatah; Varnanam santa i-         ralanam sa sadachara uchyate.         Practice  that obtains from generation to  generation  amo ng         the pure and mixed classes is called sadachara.             The  next question is whether the custom of  Udiki  ma r-         riage  would be a valid custom under law. In Edward v.  Je n-         kins,  [1896]  1 Ch.D. 308 the characteristics  of  a  val id         custom  are stated. They are, that it must be of  immemori al         existence, it must be reasonable, it must, be certain and it         must  be continuous. Every custom must have to be in  exis t-         ence  preceding memory of man and if the proof  was  carri ed         back as far as living memory would go, it should be presum ed         that the right claimed had existed from time of legal  mem o-         ry.  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  usag es         modifying  the  ordinary law, (in that case  of  successio n)         that  they should be ancient and invariable; it  is  furth er         essential that they should be established to be so, by cle ar         and  unambiguous  evidence and that it is only by  means of         such findings that the Courts can be assured of their exis t-         ence  and that they possess the conditions of antiquity  a

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nd         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.             The  Privy  Council  in Raja Rajendra  Narain  v.  Kum ar         Gangananda  &  Ors., AIR 1925 PC 213, held  that  after  t he         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  reas on         that such an evidence is allowable as an explanation to  t he         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 destr oy         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  pro c-         ess.  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 prio ri         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 Eviden ce         Act. However, nothing need be proved of which the Courts c an         take  judicial  notice. When a custom  has  been  judicial ly         recognised  by the Court then it passes into the law of  t he         land as proof of it becomes unnecessary under Section  57( 1)         of  the  Evidence  Act. "In regard to  marriage",  says  S ir         Gooroodas  Banerjee, "the ordinary Hindu Law does  not,  a

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nd         cannot, form the common rule for all sects alike."             Examining  the written statements and the  evidence  a d-         duced 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  pri or         husband’s  name was one Gurulingappa. When I was aged  abo ut         16 or 17 years, my marriage with Gurulingappa was dissolve d.         The 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, t he         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  dissol u-         tion  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  Gurulingap pa         that he did not require me as his wife. That declaration w as         followed by our mutual expression of liberty to marry anot h-         er spouse. That was approved by the elders present then." In         cross-examination  on  behalf  of the  plaintiff  she  sai d:         "Since 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  t he         marriage.  There  was no other reason for  the  dissolutio n.         About  13  years after my marriage  with  Gurulingappa,  t he         marriage was dissolved." "I was not residing in my husband ’s         house  ever  since my marriage with Gurulingappa but  I  w

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as         residing in my parent’s house." She also deposed that to h er         knowledge  her’s was the only case where there was  dissol u-         tion  in their family from the time of their ancestors.  H er         mother was married in usual form and not in Udiki form.  N or         her  brothers  or sisters got a dissolution  of  their  ma r-         riages.  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  four th         defendant  testified  about her  re-marriage  with  Gurapp a.         According to him there was a custom in the Lingayat commun i-         ty  for  dissolution of the marriage and he could  give  o ut         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  eid er         sister  was also married in Udiki form. He did not give  t he         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 defen d-         ant took place in his Railway Quarters at Hubli.  Outsider s,         namely,  Shri S.R. Hiremath, N.M. Patil were present.  Amo ng         his  relations, his eider sister, his cousin,  Gurulingapp a,         his  sister  and the fourth defendant were present.  He  h ad         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 a nd         the  fourth defendant and in view of the fact that  she  h ad

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       expressed her intention for dissolution, he had no objecti on         for  dissolution. Thereafter, Hiremath, Patil and his  rel a-         tions  also consented for the dissolution of  the  marriag e.         Parappa’s  mother  removed  the Tali from the  neck  of  t he         fourth  defendant and handed over the same to  Gurulingapp a.         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,  the re         was  nothing more to be done for the dissolution. This  wi t-         ness further deposed that in 1943, the Udiki marriage of t he         fourth  defendant  took place at Miraj. At the time  of  r e-         marriage she was aged about 19 or 20 years. Parappa contac t-         ed  Gurappa for the re-marriage. Gurappa brought his  fath er         with  him  and the re-marriage was fixed. He got  his  eid er         sister  and  his  brother-in-law from  Bijapur.  His  moth er         Rachappa  and his wife were present at the time  of  re-ma r-         riage  in addition to those who came from  Bijapur.  Gurap pa         and Jamakhandi were already there. A priest was  officiati ng         the  re-marriage. The lady who had already  undergone  Udi ki         marriage was requested to present the clothes to the  brid e-         groom  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  t he         priest  who enchanted some Mantrum and, thereafter,  it  w as         given  to Gurappa who in turn tied it round the neck of  t he         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  t he         ends of the clothes of bride and bridegroom who  thereafte r,         prostrated before the elders to receive their blessings. It         appears that this witness was thoroughly cross-examined  b ut         could not be dislodged.

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           DW-9  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  t he         marriage. He gives vivid description of the ceremony inclu d-         ing  the  persons who were present. He  testified  that  t he         priest  enchanted  mantrum and thereafter  handed  over  t he         Guladali  to Gurappa and, as directed by the priest  to  t ie         Guladali  around  the  neck of his wife,  Gurappa  tied  t he         Guladali.  Mr. Datar says Guladali meant Tali. The  clothi ng         was presented by each         84         party  to the other. As per the direction of the priest  t he         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.             DW-10  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  th at         his  marriage with the fourth defendant was dissolved,  th us         fully corroborating the other witnesses. He clearly  depos ed         that the fourth defendant’s mother removed the Tali from h er         neck and gave it to him and he took it, went home and subs e-         quently married again.             Mr. 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  n ot         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 plai nt         she  was  described as having had illegal  connections  wi th         Gurappa.             The learned counsel for the respondents submits that a ll         the  witnesses  were near relations and hence could  not be

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       believed. We do not agree. All elders were not relatives a nd         their  corroborated  testimony could not be  discarded.  T he         second  and  third defendants in  their  written  statemen ts         asserted  that Neelava was legally married wife of  Gurapp a.         The High Court ignored these vital pieces of evidence  whi ch         the learned Civil Judge rightly considered.             From  the above evidence on record, appreciated  in  t he         light  of the case law on the subject and the  authoritati ve         texts as discussed above relating to the custom of  dissol u-         tion and Udiki form of marriage prevalent among the  Linga y-         ats 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  alrea dy         judicially  noticed by the Courts, and that the marriage of         the  fourth defendant with Gurulingappa was proved  to  ha ve         been  customarily  dissolved and that she  was  subsequent ly         legally married with Gurappa in the valid customary form of         Udiki  marriage, whereafter, 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  t he         marriage illegal posthumously.             The result is that this appeal is allowed, the  judgme nt         of  the High Court is set aside and the judgment and  decr ee         of  the  Civil Judge are restored, without any order  as to         costs.         Y.L.                                                  Appe al         allowed.         86