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Bombay High Court
Mahantava Irappa vs Gangava Mallappa on 15 July, 1909
Equivalent citations: IIIInd Cas 962 a
Bench: B Scott, Batchelor


JUDGMENT

1. The question which has been argued before us on behalf of the appellant is whether a marriage between a man of the Panchal caste and a woman of the Kurbar caste is valid. The Panchal and the Kurbars are Sub-divisions of the Shudra tribe.

2. It has been held by the Judicial Committee in Inderun Valugypooly Taver v. Ramasawmy Sandia Taver 13 M.I.A. 141 : 3 B.L.R. (P.C.) 1 : 12 W.R. (P.C.) 41 that when the factum of a marriage is proved the presumption is that it is valid in law and in that case there was nothing illegal in the intermarriage of members of different sub-divisions of a Shudra tribe. The onus would, therefore, appear to lie upon the party alleging an illegality by reason of immemorial custom to prove such prohibting custom. That was the view taken by this Court in the case of Fakirgauda v. Gangi 22 B. 727.

3. The learned District Judge in the case now before us has correctly applied the law as to onus. He says the evidence in this -case certainly does not establish any prohibition of immemorial custom.” We must, therefore, hold that the marriage of Savakka with Basappa was a valid marriage and the appellant’s case for that reason must fail.

4. We dismiss the appeal with costs.


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