The validity of customs, including divorce customs, should be evaluated based on public policy and moral considerations, rather than solely on the presence of mutual consent.

1. This second appeal arises out of a suit for restitution of congregal rights filed by the wife against her husband which was allowed by the trial court but dismissed by the court below.

2. The parties are Thiyyas hailing from Eranad Taluk in Malabar. They were married in April-May 1949 and have two children. They admittedly separated in May 1953 about three months after the birth of the second child and have been continuously living away from each other thereafter. According to the plaintiff the defendant brought about a separation by taking her from the marital home to her parent's house and abandoning her without paying anything towards the maintenance of herself or the children. She averred in the plaint that the defendant was wrongfully contemplating a second marriage and launched the suit on 3-7-1954. The defendant contended that the plaintiff refused to nurse his ailing mother who was living with them and persisted in going to her father's house rather than remain with him. And finding that she could not be persuaded to come back, he took steps with the father's consent to effect a divorce in the customary form on 23-4-1954 and that second wife had also been taken by him subsequently, in June of that year. Oral and documentary evidence was let in on both sides in support of the respective pleas. Two questions thus arose for consideration - firstly the existence or otherwise in the community of the customary form of divorce as pleaded by the defendant and secondly the termination in fact, of the marriage in such form. The trail court, on analysis of the evidence, found in favour of the plaintiff on both the questions and so allowed the suit. In appeal by the defendant, the lower appellate court found to the contrary and so dismissed the suit. Hence this second appeal by the plaintiff as above said.

3. Learned counsel for the appellant did not seriously canvass before me the finding of the learned District Judge on the first question as to the existence of the custom in regard to divorce. Indeed there can be no doubt on the matter in view to the admissions of the plaintiff's father as Pw. 2. According to Pw. 2, the husband had always the right to divorce the wife under the customary law and such divorce was brought about by the husband breaking a thread taken out from his cloth and blowing it off saying that the marriage tie between himself and his wife was severed. Only this ceremony should take place in the house of the thandan or priest who officiated at the marriage of the couple and before an assemblage consisting of him and his relations the father or the brother of the wife as representing her and of the village elders. The plaintiff examined as Pw.1 also admitted that divorce in this form was in vogue in the community. The evidence on the defence side spoke substantially to the same effect. The difference consisted if at all in the supply by it of more details, e. g. the settlement of accounts between the husband and wife as preliminary to the sundering of their relationship. In the nature of the function, it is likely this was also there. The learned Munsiff had in fact misled himself when he overlooked the admission on the plaintiff's side. I therefore hold that the custom as to divorce did exist in the form pleaded.

4. But what learned counsel seriously contended was that the custom here suffered from lack of reasonableness and that on that account it was inadmissible. The defect according to him consisted in the single circumstance that the wife's consent had no place at all in the scheme. This aspect was not touched in the pleadings nor addressed in the court below and in my judgment, is only of academic importance in this case. Even otherwise there is no authority which has gone to the extent of holding that a custom as to divorce is on this sole account rendered "barbarous or of repugnant to equity" so as to make it unreasonable. For it is one thing to say that the social well-being of the communi