1. Dispute over succession to property based on the validity of a second marriage via Chadar Andazi following a customary divorce from a first husband. (Para 1 )
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1967 Supreme(SC) 157
SUPREME COURT OF INDIA
K.N. WANCHOO, C.J.I.; V. BHARGAVA AND G.K. MITTER JJ.
Gurdit Singh, Appellant
Versus
Mst. Angrez Kaur and others, Respondents.
Civil Appeal No. 852 of 1964,
D/-25-4-1967.
Advocates Appeared
Mr. Bishan Narain, Senior Advocate (Mr. A. G. Ratnaparkhi, Advocate, with him), for Appellant; M/s. K. C. Nayyar and Mohan Behari Lal, Advocates, for Respondent No. 1.
Advocates:
BISHAN NARAIN, K.C.Nayar, MOHAN BEHARI LAL
BISHAN NARAIN, K.C.Nayar, MOHAN BEHARI LAL
A customary record is presumptive evidence but can be rebutted. If a custom permits a husband to divorce his wife, the marriage is dissolved, and the divorced wife is entitled to remarry during the first husband's lifetime.
Headnote:(A) Customary Law - Divorce and Remarriage - Evidentiary value of customary records - Whether a custom permitting divorce among a specific community allows the divorced wife to remarry during the lifetime of the first husband.
(B) Customary records - Value as evidence - Customary records prepared by public officers are admissible as presumptive evidence subject to rebuttal - If a record is found to be unreliable or incorrectly prepared in certain aspects, it may be held unreliable for other purposes as well. (Paras 6, 8, 9)
(C) Customary Divorce - Once a marriage is validly dissolved by a recognized custom, the divorced wife is entitled to enter into a second marriage during the lifetime of the first husband to secure her livelihood, provided such a custom is proved by evidence. (Paras 10, 11)
Facts of the case:
A woman claimed property as the widow of a deceased man, asserting she had married him through a customary marriage after being divorced by her first husband. A collateral relative contested the claim, arguing that no custom of divorce existed in the community and that a woman cannot remarry while her first husband is alive.
Findings of Court:
The court held that the customary record of the district was unreliable. Evidence, including testimony from the appellant's own witnesses, established the existence of a custom permitting a husband to divorce his wife. The court further held that such a divorce dissolves the marriage, making a subsequent marriage valid.
Issues: Whether a custom existed in the community allowing a husband to divorce his wife, thereby enabling her to enter into a valid second marriage during the lifetime of the first husband.
Ratio Decidendi: A customary record that is found to be unreliable cannot be used to disprove a custom when other evidence, including witness testimony and practices in neighboring districts, supports its existence. A valid customary divorce dissolves the marriage, and it is incongruous to suggest a divorced wife cannot remarry to secure her living.
Result: Appeal dismissed.
Legal Category Hierarchy
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family law
-
marriage
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validity
- chadar andazi
- remarriage
-
divree
- husband initiated
- custom recognition
-
validity
-
property succession
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inheritance
- will validity
- mutation
- widow rights
-
inheritance
-
marriage
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evidence and procedure
-
custom proof
- riwaj-i-am
- witness testimony
- jurisdiction
-
custom proof
-
constitutional law
- custom vs personal law
Table of Contents
2. Whether a custom exists among the community permitting a husband to divorce his wife and enabling her to enter a valid second marriage during the first husband's lifetime. (Para 2 , 3 )
3. The court found the local Riwaj-i-am unreliable and determined that evidence, including admissions by the appellant's own witnesses, proved the existence of a divorce custom. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 )
4. Where a custom permits a husband to validly divorce his wife, such dissolution of marriage enables the divorced wife to contract a valid second marriage. (Para 11 )
5. Appeal dismissed with costs. (Para 12 )
6. What is the evidentiary value of the Riwaj-i-am in proving customary law?
The Riwaj-i-am is a public record and presumptive evidence of custom. However, its value depends on its reliability; if it is found to be unreliable or not prepared with care and attention, it cannot be accepted at face value. (Para 6 , 8 )
7. Can the existence of a custom in neighboring districts be used to infer its existence in a specific district?
Yes. Since customs are primarily tribal rather than local, the existence of a custom among the same tribe in surrounding districts is a relevant consideration for inferring its prevalence in a specific district. (Para 4 , 10 )
8. Does a customary divorce by a husband permit the wife to enter a valid second marriage during the first husband's lifetime?
Yes. Once a marriage is validly dissolved through a recognized custom of divorce, the marriage is dissolved, and the divorced wife is at liberty to enter into a second marriage to secure means for proper living. (Para 11 )
Judgement
BHARGAVA, J.:- This appeal has come up as a result of a dispute relating to succession to the property of one Sunder Singh. Sunder Singh, on 4th November, 1950, executed a will in respect of his property in favour of his niece, Udham Kaur. Subsequently, on 27th October, 1951, one Tarlok Singh executed a document divorcing his wife, Mst. Angrez Kaur, respondent No.1 in this appeal, on the ground that she frequently went away from his house without his consent and whenever he made enquiries from her, she became furious with him. In the document, he recited that Mst. Angrez Kaur was no longer his wife and that she had gone to live with Sunder Singh. According to respondent No. I, on this divorce being granted to her by her first husband, Tarlok Singh, she was married to Sunder Singh by a custom, known as Chadar Andazi. On 7th June, 1952, Sunder Singh revoked his previous will and in that document, acknowledged Mst. Angrez Kaur as his wife and left the property to her. Sunder Singh died in 1953. Thereafter, the appellant, Gurdit Singh, who was a collateral of Sunder Singh in the third degree, applied for mutation. On 12th December, 1954, mutation of the property left by Sunder Singh was sanctioned in favour of Gurdit Singh by the authorities. Thereupon, Mst. Angrez Kaur filed a suit on 17th March, 1955 claiming the property as widow of Sunder Singh. The trial Court decreed the suit, holding that respondent No. 1 had married Sunder Singh by Chadar Andazi and the marriage was valid. On appeal, the Additional District Judge set aside the decree of the trial Court and held that the marriage of Mst. Angrez Kaur with Sunder Singh during the life-time of her first husband, Tarlok Singh, was invalid and was not justified by any custom and, consequently, she could not be treated as the widow of Sunder Singh. Respondent No. 1, thereupon, appealed to the High Court of Punjab and the learned Judge, who heard the appeal, felt that the question of custom had not been properly tried by the trial Court and the first appellate Court. Consequently, he framed the following issue :-
"Is there any custom amongst the tribes of the parties according to which the divorce given by Tarlok Singh to Mst. Angrez Kaur is recognized enabling her to enter into a valid marriage by Chadar Andazi with Sunder Singh?"
This issue was remitted to the trial Court for recording a finding after giving the parties an opportunity to lead further evidence. Further evidence was led in the trial Court which answered this issue in the negative and against respondent No. 1. The District Judge in his report, endorsed the view of the trial Court. The High Court, however, held that the custom was proved under which Mst. Angrez Kaur could validly marry Sunder Singh, even though her first husband, Tarlok Singh, was alive, and, consequently decreed the suit. Gurdit Singh appellant has now come up to this Court against this decree of the High Court by special leave.
2. As is clear from the facts narrated above, the only issue that arose in this case was whether respondent No. 1, Mst. Angrez Kaur, had succeeded in proving the existence of a custom in the community to which she belonged, according to which, Tarlok Singh, her first husband, could divorce her, whereupon she was at liberty to enter into a valid marriage by Chadar Andazi with Sunder Singh, whose property is now under dispute. The parties are residents of the District of Jullundur where, according to Gurdit Singh appellant, no such custom, as claimed by respondent No. 1, exists amongst the Jats, which is the caste to which the parties belong. To urge this point, learned counsel for the appellant relied before us on The Digest of Customary Law by Sir W. H. Rattigan, and on the Riwaj-i-am recorded at the time of the settlement in 1885 and 1914-15. It was argued that Rattigan s Digest of Customary Law in the Punjab had always been treated as an authoritative exposition of the custom prevailing in the Punjab and had
