Smt. Gurnam Kaur vs Gurdip Singh Uberoi

Falshaw, C.J.—This is an appeal by the wife Shrimati Gurnam Kaur against a decree passed in favour of the husband Gurdip Singh annulling their marriage u/s 11 of the Hindu Marriage Act, 1955.

The facts are not in dispute. The parties were married at Delhi on the 3rd of November 1960. They are first cousins, Gurdip Singh being a son of Shrimati Ram Piari and Shrimati Gurnam Kaur being a daughter of Mr. Sampuran Singh Butalia, the parents being the daughter and son of Kahan Singh Butalia. The petition was filed within a year of the marriage in October 1961 for annulment on the ground that it contravened Clause (v) in Section 5 of the Act. The relevant portion of Section 5 reads-

A marriage may be solmenized between any two Hindus, if the

following conditions are fulfilled, namely:

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* * * *

(v) the parties are not sapindas to each other, unless the custom or usage governing each of them permits of a marriage between the two.

The wife''s defence was that the marriage was permitted by their family custom and the usage prevailing among the members of the community to which the parties belong.

The parties are Khatris who before the partition lived in Sialkot District. Hardev Singh, the father of the husband, belongs to the sub-caste Uberoi and Sampuran Singh, the father of the wife, to the sub-caste Bhandari.

Before considering the evidence I shall refer to the definition of ''custom'' and ''usage'' contained in Section 3(a) of the Act. This reads

the expressions ''custom'' and ''usage'' signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy ; and

Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.

As the onus lay on the wife to establish the custom or usage which she relied on her evidence was led first and she produced 17 witnesses including her father Sampuran Singh who between them deposed to 21 alleged marriages between first cousins among various sub-castes of khatris belonging to the region comprised in the districts of Sialkot, Gujranwala and Sheikhupura. of these instances 6 relate to the period before 1947, and only one of these, which will require to be dealt with separately, since it relates to the marriage of the parents of the husband in the present case, is of the sub caste of either of the parties. Two of the instances turned out to be of Arora, not khatris.

5 Two of the marriages regarding which evidence has been given were contracted in the year 1947 in extraordinary circumstances, one of them being a marriage of first cousins in a refugee camp at Gujranwala while the parties were awaiting safe transportation to India and the other in a refugee camp at Purana Qila, Delhi. The remaining 13 instances are all dated between 1948 and 1958. None of these marriages relates to the sub-caste Uberoi and only one of them of the year 1950 relates to the sub-caste Bhandari.

In my opinion the learned Additional District Judge was fully justified in refusing to regard those marriages which took place in refugee camps in 1947 or in more recent years among parties uprooted from their old homes as any proof whatever of the existence of any longstanding custom or usage favouring the marriage of first cousins among the community of the parties. It can only be supposed that when the khatris of Sialkot, Gujranwala and Sheikhupura districts were forced to become displaced persons and scattered over various parts of the Punjab and Delhi and even further a field in India, they might not have found it as easy as it was before to arrange suitable marriages, and marriages among close relations might naturally be expected to increase under these conditions.

This leaves only 6 pre-partition instances including the marriage of the husband''s parents. The learned Addditional District Judge has found regarding one or two of even these instances that it has not been satisfactorily proved that the marriages took place between first cousins, but even assuming that the parties to those marriages were first cousins I am inclined to agree with the view that this is insufficient to establish any firm or long stability custom or usage among the families or tribe of the parties since, as I have said, none of these marriages concerned either Uberois or Bhandaris.

This brings me to the single instance in the families of the parties, which in fact cannot be closer to them than it is The evidence regarding this carriage including the evidence of the husband''s father Hardev Singh Uberoi A W. 17 makes it clear that this was a somewhat extraordinary marriage The father of Sampuran Singh, the wife''s father, and Shri mati Ram Piari, Kahan Singh, had died about 1920 and in these circumstances Sampuran Singh and his sister, aged then only about 10 and 8 respectively, went to live with the parents of Hardev Singh Uberoi and when Shrimati Ram piari was still only about 13 years of age she eloped with Hardev Singh Uberoi. According to his evidence they tried to get married at Amritsar, but could not find a granthi- willing to perform the ceremony but they found such a granthi at Lahore. This marriage created a scandal and was to shock to the family and the brotherhood, and it was several years before Hardev Singh Uberoi was restored to favour with his father Ganda Singh, who was apparenlty a pillar of the Hindu Maha Sabha. According to the evidence of some of the witnesses produced on behalf of the husband, Hardev Singh Uberoi and his wife were socially boycotted by the members of their brotherhood for a long time after the marriage, which took place about 1927. Apart from the evidence of Hardev Singh Uberoi many witnesses of respectable status of the khatri community formerly belonging to the region from which the parties came have deposed that no custom existed among them for the marriage of first cousins, and it seems to me that even if the disfavour with which the marriage of the husband''s parents was viewed among the community was as much, or even more so, due to the fact that in the eyes of law it was a case of kidnapping as to the fact that it was a marriage among first cousins not sanctioned by any custom prevailing among the community, it certainly cannot be regarded as a good instance of proof of any custom of any kind.

In the circumstances I am of the opinion that the matter has been correctly decided by the learned Additional District Judge, and I accordingly dismiss the appeal, but leave the parties to bear their own costs.