Nimai Chand Keyal vs Hurry Churn Dass and Others

Prinsep, J.—We think that this appeal should be decreed.

The question in this case is whether a marriage in the Sagai form is valid among the class to which the parties to this suit belong. The Munsiff says: "It is in vogue among them." The Subordinate Judge comes to the same conclusion. It appears therefore that the existence of the custom is proved. The only question then for decision is whether a marriage in pursuance of it is legal. The Subordinate Judge has found that "such a marriage is invalid on the ground that certain fines are paid to the zamindar, and no ceremonies of marriage are performed at Shunga, no priest officiates at it, and no rites take place as are necessary in marriage." In page 79 of Mr. Mayne''s Treatise on Hindu Law it is laid down that a marriage according to the custom of a particular caste or of a particular place is sufficient.

Here the Subordinate Judge is of opinion that no such marriage, would be valid unless priests officiate, and the usual marriage rites were performed. In the case of Bissuram Koiree v. The Empress 3 CLR 410 this very form of marriage was recognized as existing among the lower castes of Hindus residing in Behar. In Rally Chum Shaw v. Dukhee Bibee ILR 5 Cal. 692 this form of marriage was considered to be valid among the Hulwais.

It seems to us that the reasons given by the Subordinate Judge are not valid reasons for considering that the custom contended for is not legal.

The very same objections that are taken by him were taken before Wilson, J., in the case of Rally Churn Shaw, to which we have referred and were overruled.

In this view of the case we decree the appeal with all costs.