A custom or usage permitting marriage between children of a brother and a sister or two sisters among Aroras of Jhang district, West Pakistan, was valid and not repealed by the Hindu Marriage Act, 1955.

1. The parties were married at Smalkha on June 18, 1973. After about five years, on April 22, 1978, the husband filed a petition under Ss.11 and 12 of the Hindu Marriage Act, 1955 , for the annulment of his marriage on the grounds that his consent had been procured by fraud and that the parties being the children of the real brother and sister were related within the prohibited degree and, therefore no valid marriage could be performed between them. The petition was opposed by the wife who denied all the material allegations and in the alternative pleaded that even if the alleged relationship between them was proved, there existed a custom amongst Aroras which permitted such a marriage. On the pleadings of the parties, the following issues were framed :-

1. Whether the parties are related to each other within prohibited degree as alleged in para No.4 of the petition?

2. If issue No.1 is proved then is there any custom in existence which validates such a marriage?

3. Whether the consent of the petitioner to this marriage was obtained by fraud and by concealment of facts as alleged in para No.5 of the petition. If so to what effect? After trial, issues Nos.1 and 2 were answered in favour of the husband and issue No.3 against him with the result that a decree annulling the marriage between them was passed by the learned Additional District Judge, Karnal, vide judgement dated April 3, 1980. Aggrieved thereby, the wife has come up in this appeal.

2. The findings of the trial Court on issues Nos.1 and 3 were not challenged by the parties and are accordingly confirmed. So, the sole dispute between them is as to whether there exists a custom in the community of the parties which permits marriage between the children of a brother and a sister or the two sisters.

3. The appellant, to prove the alleged custom, gave her own statement and examined RW 2 Baldev Raj, RW 3 Tharu Ram, RW 4 Sant Lal Pruthi, RW 5 Sulakhan Singh, RW 6 Kishan and RW 8 Jodha Ram, her father. All the witnesses produced by the appellant are Arora by caste and have migrated from district Jhang in West Pakistan. They have with one voice deposed that there existed a custom amongst Aroras in the West Pakistan which allowed marriage between the children of a brother and a sister or two sisters and that after migration to India in the year 1947, this custom still continues to prevail amongst them. All of them have supported their statements by citing a couple of instances of such marriages. RW 2 Baldev Raj is a retired Judicial Officer and was practising Advocate at Bhiwani when he appeared in the witness box. He cited five examples of such marriages including his own. Most of these marriages had taken place in West Pakistan. Although he did not belong to district Jhang from which place the parties hail but that would be no ground to reject his evidence because the custom alleged was not confined to any territory in West Pakistan and was said to be prevailing generally amongst Aroras. All the remaining witnesses belonged to district Jhang and cited instances of the marriages between the persons related within the prohibited degrees of their own families and the near relations. In all, more than seventeen instances of the alleged custom found mention in their statements.

4. The respondent, to rebut this evidence, appeared as his own witness and examined AW 3 Bhagwan Dass. Both of them denied the existence of the alleged custom without citing any instance where such marriage was objected to or challenged. In the cross-examination when they were asked about the instances later on proved by the witnesses to the appellant, simply showed their ignorance or gave evasive replies. The respondent, thus led hardly any evidence to rebut the voluminous evidence produced by the appellant. The trial Court ignored all that evidence simply on the ground that in the instances cited by the witnesses did not relate to the persons belonging to Jhang district. This was obviously an erron