The custom of polygamy and marriage by wearing bangles (Chudi system) among the Gond tribe is valid and enforceable, and the children born to a second wife in such a marriage are legitimate heirs.

R.P. Gupta, J.

1. This appeal is directed under Section 384 of Indian Succession Act, 1925 (hereinafter called 'the Act') against the order dated 31-1-1997 of Additional District Judge, Dindori, District Mandla, passed on a petition under Section 372 of the Act, directing issue of succession certificate of late Somnath in favour of respondents 1 to 3, in their capacity as his widow/daughter and son respectively to the extent of l/3rd share each. The petition claiming succession certificate moved by the appellants and respondent No. 4 was dismissed. The appellants and respondent No. 4 had claimed as widow and daughters and son of the late Shri Somnath Gond. Respondents 1 to 3 had also claimed in the same capacity. The respondents 1 to 3 succeeded. Some service benefits were payable to the heirs of the deceased Somnath. The appellants claimed that they belong to Gond tribe who follow custom of polygamy and there was also custom of marriage by wearing bangles (Chudi system) by the lady and further there was also custom of widow marriage also. These customs were continuing since time immemorial in their tribe, and were universally accepted customs and continuous. They had acquired the force of law. According to their custom, all the widows and sons and daughters would succeed equally to the deceased Gond. The case was that the deceased had two wives, namely Appellant No. 1 Smt. Shakun Bai and respondent No. 1 Smt. Siya Bai and from appellant No. 1, Smt. Shakun Bai, the children born were three daughters and one son who are appellants 2 to 4 and respondent No. 4 and from respondent No. 1, one daughter respondent No. 2 and one son respondent No. 3 were born. Somnath had died on 27-5-1991. He was employed as a teacher in Middle School, Bondar. The following amounts were payable on his death to his heirs :-

(i) Group insurance amount Rs. 50,000/- (ii) Gratuity Rs. 11,160/- (iii) G.P.F. Rs. 20,000/- Rs. 81,160/-

The petitioners had claimed that respondent No. 1 was residing with her parents for the last 10 years and now after death of Somnath, she is challenging the rights of petitioners.

2. The respondents had denied that the appellants/petitioners were heirs of Somnath. It was urged that the Hindu Marriage Act 1955 was applicable to the parties and no second wife could be taken by a Hindu and the children born to such 2nd wife would not be legitimate and will not be heirs. They urged that in fact, appellant No. 1 was wife of one Patiram. They urged that among Gonds, there is a custom of remarriage, but the first husband has to divorce his wife on acceptance of certain compensation money and then he relinquishes his wife, then only, that wife can marry other husband by wearing his bangles after breaking the earlier bangles. New bangles are put on by the new husband after smearing her palms with turmeric (Haldi) paste and social feast is given. Then only the second marriage of that wife, whose husband has relinquished her, becomes valid. In the absence of entire customary procedure, no such marriage by mere wearing bangles of the new husband is valid and the children are illegitimate. Even at the time of cremation of Somnath, the bangles of only respondent No. 1 were broken and not of appellant No. 1. Thus only respondent No. 1 was recognised by the society as widow of Somnath.

3. The trial Court held that there was no reliable evidence to show that, compensation money was paid to earlier husband of Shakun Bai, namely Patiram, nor there was evidence to show that Somnath had put bangles on the hands of Shakun Bai, nor further there was evidence to show that at the time of death of Somnath on the 10th day after death, her bangles were broken as per custom. In fact, her bangles were not broken because the society people did not accept her as valid wife of Somnath. With these findings, the trial Court held that the appellant No. I was not validly married wife of Somnath and for the same reason, and since her earlier husband Patiram was ali