Mst. Angrez Kaur vs Gurdit Singh and Others

Harbans Singh, J.—Facts giving rise to this regular second appeal may briefly be stated as under: On 4th of November, 1950, Sunder Singh, who was the last-male-holder of the property in dispute, executed a will, Exhibit P. 2, in favour of Udham Kaur, his niece. On 27th of October, 1951, Tarlok Singh executed a document, Exhibit P. 1, whereby he repudiated his wife Mst. Angrez Kaur on the ground that she used to go away from the house without his consent and if he enquired from her, she became furious with him, that Mst. Angrez Kaur was no longer his wife and that she had gone to live with Sunder Singh. Thereafter it appears Mst. Angrez Kaur lived with Sunder Singh as his wife. On 7th of June, 1952, vide document, Exhibit P. 3, Sunder Singh revoked his previous will, Exhibit P. 2, and, acknowledging Mst. Angrez Kaur as his wife, left the property to her. Sunder Singh died in 1953. On 12th of December, 1954, a mutation of the property left by Sunder Singh was sanctioned in favour of Gurdit Singh, a third degree collateral. The suit, out of which the present appeal has arisen, was filed on 17th of March, 1955, by Mst. Angrez Kaur claiming the property as the widow of Sunder Singh. Holding that she had married Sunder Singh by chadar andazi, the trial Court decreed the suit on 7th of March, 1956, but, on appeal, the learned Additional District Judge set aside the order of the trial Court and held that inasmuch as Mst. Angrez Kaur married Sunder Singh during the lifetime of her first husband Tarlok Singh, such a marriage was illegal and she could not be treated as the widow of Sunder Singh.

She filed the present appeal and by my order dated 29th of September, 1961, I framed another issue as follows:-

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?

The case was sent to the trial Court for giving the parties an opportunity to lead further evidence and to send a report through the District Judge. The parties led evidence. The trial Court reported that no custom was proved and this report was endorsed by the learned District Judge.

The admitted facts in the present case are that Mst. Angrez Kaur was originally married to Tarlok Singh who repudiated her on 27th of October, 1951, and thereafter Mst. Angrez Kaur entered into a karewa and lived with Sander Singh as his wife till the death of Sunder Singh. The only question requiring adjudication is whether, according to the custom governing the parties, such a marriage was valid which would again turn on the point whether the ties of marriage can come to an end by release or repudiation by the first husband.

The parties belong to Jullundur district. According to paragraph 72 of the Rattigan''s Digest of Customary Law, power of divorce "in the absence of a special custom, is not allowed to Hindus." Going to the customary law of Jullundur district, the reply is against the recognition of any such custom. The answer to question No. 19 which is the relevant question, is to the following effect:-

Among the Mohammadan Rajputs and all Hindus-

No divorce is recognised.

* * * *

The learned counsel for the appellant, however, urged that the District riwaj-i-am of Jullundur, referred to above, has not been carefully prepared and has been found to be unreliable on a number of other matters in various reported cases; See in this connection Mt. Shanti v. Dharam Singh AIR 1935 Lah. 834, Mt. Fatima v. Sharaf Din AIR 1946 Lah 426, Mohd. Khalil v. Mohd. Bakhsh AIR 1949 E.P. 252. The last-mentioned case was decided by a Division Bench, and head-note (b) runs as follows:-

If the riwaj-i-am on which reliance is placed is a reliable and trustworthy document, has been carefully prepared, does not contain within its four corners contradictory statements of customs, and is not a record of the wishes of the persons appearing before the Settlement Officer as to what the custom should De, the riwaj-i-am would be a presumptive piece of evidence in proof of the special custom set up therein. It, 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. The riwaj-i-am of the Jullundur District could not be regarded as a reliable or trustworthy document for it has not been prepared with care and attention. It is, therefore, impossible to accept the statements appearing therein at their face value.

In Bui v. Bela Singh AIR 1947 Lah. 233 it was held that in such a case the tribal custom of the neighbouring district can well be looked into.

The learned counsel for the appellant then referred to the District riwaj-i-ams of a number of surrounding districts, and he urged that, according to the custom, as recorded in all these digests of customary law, amongst Hindu Jats divorce is recognized and a husband can repudiate his wife or turn her out and thereafter she is at liberty to enter into a valid marriage with another person. In the riwaj-i-am of Gurdaspur District at page 11 in answer to question 3(b) it is stated as follows:-

* * * *

Among the Hindus the custom of divorce does not generally exist; but the following tribes state that the wife can be repudiated by the execution of a deed of release:-

(1) * * * *

(2) Hindu Jats of the Batala and Gurdaspur Tehsils.

(3) * * * *.

Then a number of judicial decisions are recorded. In Lachu v. Dal Singh 83 P.R. 1896, which related to Hindu Jats of Gurdaspur tehsil, it was observed as follows:-

* *in such cases as the present the question of validity of a marriage, and the consequent legitimacy of children must be decided not by any standard of abstract morality, but by custom and that the question in each case being whether there, has, in fact, been such a repudiation of the wife by the husband as amounts to a divorce. The reasonable inference from the circumstances of the present case was that K.S. on leaving his village had renounced his rights as a husband and that his acts were equivalent to a divorce entitling Mst. C. to marry I.S.

Although divorce is not recognised eo nomina by Hindu Jats, it is in no way repugnant to the tribal law.

This judgment, thus laid down two matters: First, that by itself divorce by repudiation by the husband is not opposed to morally and is recognised by the tribal law though not so under strict Hindu law and, secondly, that repudiation could either be in writing or by conduct, and once there is such a repudiation, a repudiated woman can legally marry another person and such marriage would be lawful and the children of the marriage would be legitimate. Apart frorn Batala and Gurudaspur Tehsil, reference was made: to Ishar Singh v. Mst. Budhi 177 P.L.R. 1913, which related to the Jats of Shakargarh Tehsil and there also it was held that a woman, who is repudiated by her husband, can become the legal wife of another even without the performance of ceremony of chadar andasi. Thus, there can be no doubt that in Gurdaspur which adjoins Jullundur District the custom of divorce by repudiation is recognised and the repudiated woman can lawfully enter into a second marriage. Similar custom is recognised in the riwaj-i-am of Ludhiana District which is another district adjoining Jullundur. The relevant portion of answer to question 19 is as follows:-

Among Hindus, marriage, being a sacrament, is nominally indissoluble, and there is, therefore, no recognised form of divorce, but it is said by all tribes that a man can turn out his wife for immorality or apostasy, and, if he does so, she ceases to become his wife. Instances are numerous and the custom is well established. There are also many cases of abandonment or sale where the abandoned wife married again. * * * *

The Courts will refuse to recognise a custom whereby a man can sell his wife to another, but there is a good deal of evidence to show that dissolution of the marriage by the husband, for almost any cause whatever, will be recognised by the brotherhood, provided the woman has been married to another man. Dissolution for unchastity or apostasy is regarded as a divorce whether the woman remarried or not; the other cases are mere abandonment, until the rights of a second husband or his children arise.

Answer to question 20 then mentions that Hindus observe no formalities when turning a wife out of doors. Similar is the position in the other neighbouring districts. See, for example, the Amritsar riwaj-i-am compiled in 1947. In answer to question 25, it is stated as follows:-

Among Hindus and Sikhs there is no divorce but a wife is sometimes turned out and repudiated.

In the previous customary law, question 23 was to the same effect. In the customary law of Hoshiarpur answer to question 19 is more or less in the same words as in other districts and is as follows:-

There is no divorce among Hindus, but Jats and Sainis say a man may abandon his wife by executing a deed to that effect. In such cases there must have been good cause such as immorality on the part of the woman.

Under question 20, relating to the formalities required, three judicial instances have been given which relate to Hindu Jats where the husband had abandoned his wife after taking some money for the expenses of chadar andazi and cost of ornaments etc., and later preferred a suit for possession of his wife against the person whom the wife had remarried. In all the three cases, two from the Dasua Tehsil and one from Hoshiarpur Tehsil, the husband failed to get back the lady on the ground that he had repudiated her. Same is the case in Ferozepore. Answer to question 20 is as follows:-

Among the Jats and other Hindus divorce is nominally impossible, but the custom of a man turning his wife out is recognised and she is at liberty to remarry.

It is thus clear that in all the districts surrounding Jullundur the custom of divorce prevails in almost identical terms. The husband is entitled to turn out his wife and if he does so, she is entitled to remarry. In Ambala District also, though that is not an- adjoining district, custom is to the same effect. In answer to question 18 it is stated as follows: -

Hindus profess not to recognise divorce, but the difference is one more in name than reality, and the same result is attained by turning the wife out of the house.

I think this answer expresses the real situation. Under strict Hindu law also, except amongst high caste Hindus, divorce is not unknown and is recognized by custom and for this purpose Jats cannot be put into any category except the fourth, i.e. other than Brahmin, Kashatri or Vaish: See in this respect Sohan Singh v. Kabla Singh ILR 10 Lah. 372=29 P.L.R. 423. The position, therefore, boils down to this that even, according to strict Hindu law, amongst Sudras, marriage tie can be broken during the lifetime of the husband and, according to the agricultural custom governing Hindu Jats residing in all the surrounding Districts, divorce by repudiation by the husband is fully recognized, Riwaj-i-am of Juliundur District being unreliable it can reasonably be inferred that Hindu Jats of Jullundur District are also governed by the same rule of custom.

Apart from this, a number of specific instances have been brought on the record in the present case showing that divorce in the form stated above is recognised in the tribe of the parties. The learned counsel for the appellant prepared a comparative statement. Leaving out those cases in which the evidence on the two sides is contradictory, as many as eight instances were cited by the witnesses produced on behalf of Mst. Angrez Kaur, where a repudiated wife did remarry, ft. P.W. 1 Jagat Singh gave an instance of Ram Kaur''s husband Buta Singh repudiating her and her marrying Mehar Singh, brother of the witness during the lifetime of Buta Singh. R. P. W. 2 Bhanna stated that his wife Tej Kaur was originally married to one Waryam Singh who had repudiated her and after repudiation he married her. R.P.W. 6 Baldev Singh mentioned an instance of his own uncle Raghbir Singh who renounced his wife Basant Kaur who married Bachan Singh by karewa. In cross-examination two further instances were brought out. One Das Singh had renounced his wife Prito who remarried Dharam Singh, and Kehar Singh nephew of the witness repudiated his wife who remarried in village Dialpur. R.P.W. 7 Ujagar Singh had himself remarried Prito, who was previously the wife of Taru, during the latter''s lifetime after repudiation by Taru. Similarly Rattan Singh renounced his wife who remarried in village Rurka. R.P.W. 9 Dina Nath, a deed-writer, stated that Jito, wife of Gurnam Singh, after repudiation is living at village Khokewali. Besides these witnesses, who gave specific instances, Ujagar Singh Tehsildar (Retd.) came forward as R.P.W. 4 and deposed to their being a custom of allowing a woman to remarry if repudiated by her first husband. As a matter of fact, even some of the witnesses of the opposite side admitted that husband and wife can repudiate with each other''s consent. See in this respect R.D.W. 7 Bir Singh and R.D.W. 9 Bawa Singh. R.D.W. 12 Ujagar Singh and R.D.W. 13 Niranjan Singh also stated that a man can renounce his wife. Thus, according to the witnesses for both sides, a man can renounce his wife or the husband and wife can repudiate each other by consent. The only thing that the respondents'' witnesses did not admit was that the renounced wife can legitimately remarry though they made different statements on this fact. According to some, even if the wife is repudiated, she is entitled to inherit as a widow after the demise of the repudiating husband and she is not entitled to inherit the property of the person whom she remarries after repudiation. Surprisingly enough, however, they were not able to cite a single instance in which this had happened. If the custom of divorce by repudiation is recognised by the tribe, as is mentioned even by the witnesses for the respondents, then the right of the repudiated woman to remarry follows merely as a corollary. It would be really strange that a wife can be repudiated and turned out and in that way divorced but she cannot enter into a second valid marriage and must be forced to live only as a mistress. As is clear from the answers in the riwaj-i-am of the various districts reproduced above, a repudiated wife''s right to remarry is universally recognised. We have further in this case evidence about the members of the tribe recognising the marriage between Sunder Singh and Met. Angrez Kaur as valid and treating them as wife and husband. P.W. 6 Amar Singh, who is a Naib Sarpanch, clearly stated that Mst. Angrez Kaur lived as a wife of Sunder Singh and on Sunder Singh''s death she gave a feast in the village. P. W. 7 Gurbakhsh Singh similarly stated that Mst. Angrez Kaur was the wife of Sunder Singh and attended ceremonial occasions in that capacity. P.W. 9. Harbans Singh, Election Qanungo, brought the Voters'' list and stated that Mst. Angrez Kaur''s name is entered in that list as the widow of Sunder Singh. Tarlok Singh, the previous husband of Mst. Angrez Kaur, appeared as P.W. 2 and categorically stated that he had repudiated Mst. Angrez Kaur and that he had nothing to do with her after the repudiation and that Mst. Angrez Kaur had married Sunder Singh and was his wife. That Sunder Singh acknowledged her as his wife is beyond any dispute This fact is further clear from Exhibit P. 3 by which Sunder Singh revoked his first will and left everything to his wife, Angrez Kaur.

The learned counsel for the respondents, however, urged that in the present case Tarlok Singh had, in fact, sold Mst. Angrez Kaur to Sunder Singh for Rs. 400/- whereas he had purchased her for Rs. 300/- thus making a profit of Rs. 100/- and that this was opposed to public policy. In the deed, Exhibit P. 1, there is no mention about any money having been received by Tarlok Singh from Sunder Singh. No such question was put to Tarlok Singh in cross-examination either, when he appeared in the witness-box. Reliance is placed on the statement of Mst. Angrez Kaur herself. She had stated in the examination in-chief that Tarlok Singh had paid Rs. 300/- to her brother for taking her and in cross-examination she had stated that Rs. 400/- were paid by Sunder Singh to Tarlok Singh. This may or may not be true because her information is more or less hearsay. The real person, who is said to have paid and then later received the money, is Tarlok Singh and he was the proper person to whom this question should have been put. In any case, the mere fact that some consideration is received by way of expenses or otherwise is no ground for holding that the custom as such is opposed to public policy. In the judicial cases cited u/s 20 in the riwaj-i-am of Hoshiarpur District, the fact that some money was passed was not held in any way to affect the divorce.

The last argument of the learned counsel was that it was against the modern trends to allow a divorce between the parties by their consent. According to the Hindu Marriage Act, he urged, divorce can be granted only through Court and for only specified reasons and that in the present case divorce was more or less by consent of the parties. No doubt, under the Hindu Marriage Act divorce by consent is not recognized, yet it cannot be said that the idea of divorce by consent is unknown to the modern thought or that there is something fundamentally wrong and opposed to public policy in this. In this respect reference may be made to section 28 of the Special Marriage Act which provides for divorce by consent.

From the above, it is clear that not only according to the general custom recognized by Hindu Jats in all the districts surrounding Jullundur a marriage tie can be severed by the husband repudiating the wife, but this custom has also been proved to exist amongst the tribe of the parties which is clear from the number of instances cited.

In view of the above, therefore, I am of the view that Mst. Angrez Kaur was repudiated by her husband and this ended the marriage tie between her and Tarlok Singh and that she could and did marry Sunder Singh and, consequently, was his lawful widow. I would, therefore, accept this appeal, set aside the order of the lower appellate Court and restore that of the trial Court. The appellant will have her costs here as well as in the Courts below.