{"id":33806,"date":"1989-03-28T00:00:00","date_gmt":"1989-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shakuntalabai-anr-vs-l-v-kulkarni-anr-on-28-march-1989"},"modified":"2018-05-24T06:52:14","modified_gmt":"2018-05-24T01:22:14","slug":"shakuntalabai-anr-vs-l-v-kulkarni-anr-on-28-march-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shakuntalabai-anr-vs-l-v-kulkarni-anr-on-28-march-1989","title":{"rendered":"Shakuntalabai & Anr vs L.V. Kulkarni & Anr on 28 March, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shakuntalabai & Anr vs L.V. Kulkarni & Anr on 28 March, 1989<\/div>\n
Equivalent citations: 1989 AIR 1359, \t\t 1989 SCR (2)\t 70<\/div>\n
Author: K Saikia<\/div>\n
Bench: Saikia, K.N. (J)<\/div>\n
           PETITIONER:\nSHAKUNTALABAI & ANR.\n\n\tVs.\n\nRESPONDENT:\nL.V. KULKARNI & ANR.\n\nDATE OF JUDGMENT28\/03\/1989\n\nBENCH:\nSAIKIA, K.N. (J)\nBENCH:\nSAIKIA, K.N. (J)\nOZA, G.L. (J)\n\nCITATION:\n 1989 AIR 1359\t\t  1989 SCR  (2)\t 70\n 1989 SCC  (2) 526\t  JT 1989 (1)\t607\n 1989 SCALE  (1)737\n\n\nACT:\n\t    Hindu  Law--Udiki form of marriage prevalent among\tLi\nn-\n\tgayats--Ancient\t and unbroken custom of dissolution of\tma\nr-\n\triage-Whether\t      prevalent--Proof\t       of----Secti\non\n\t57--Customs--Judicially\t recognised  by\t Court--Passes\tin\nto\n\tlaw--Proof  unnecessary. Serai Udiki marriage among  Panch\na-\n\tmasal Lingayats--Custom--Proof of.\n\n\n\nHEADNOTE:\n\tThis is defendants' appeal arising out of a suit for  part\ni-\n\ttion.\n\t    One Mallappa Kulkarni had two sons: Veerappa and  Gura\np-\n\tpa.  Verrappa is survived by his son Lingappa. Gurappa,\t w\nho\n\twas  in\t the service of Railways  married  Channavva  (fir\nst\n\twife) on 16.2.28 but since she remained issueless, he rema\nr-\n\tried in 1955 Chinnavva (second wife). From this marriage t\nwo\n\tdaughters  were\t born viz. Shakuntlabai\t arid  Annapoornav\na.\n\tConsequent upon the death of his second wife Gurappa is sa\nid\n\tto  have married Nilavva accroding to customary\t Udiki\tma\nr-\n\triage.\n\t    After  retirement Gurappa settled permanently  at  Hub\nli\n\twhere he had house, property etc. After the death of  Gura\np-\n\tpa,  his  first wife Channavva claimed l\/3rd  share  in\t t\nhe\n\tproperty. Having failed to get the same, she sold her  1\/3\nrd\n\tshare to Lingappa. Lingappa also could not procure the 1\/3\nrd\n\tshare  from defendants by mutual negotiation.  Thereupon\nhe\n\tfiled  a suit for partition claiming his 1\/3rd share in\t t\nhe\n\timmovable  properties  left by Gurappa. In the suit  he\t i\nm-\n\tpleaded\t Channavva (first wife) as Defendant No. 1  and\t t\nhe\n\tchildren  from 2nd wife as Defendant Nos. 2 & 3 and  Nilla\nva\n\twas  impleaded\tas  Defendant No. 4, who  was  described\nas\n\thaving illegal connections with the deceased Gurappa.\n\t    The Additional Munsiff, Hubli who tried the suit  pass\ned\n\ta preliminary decree for partition of l\/3rd share of  Gura\np-\n\tpa's  properties  in the hands of the defendants 2 to  4\nby\n\tmetes and bounds. Defendants 2 to 4 contested that Defenda\nnt\n\tNo. 4 was lawfully married wife of Gurappa.\n\t    Defendants\t2 to 4 appealed to the Civil Judge at  Hub\nli\n\timpleading the plaintiff and Defendant No. 1 as\t respodent\ns.\n\tThe Civil Judge\n\t71\n\tmodified the decree and granted I\/6th share holding the\t 4\nth\n\tdefendant  to  be  legally married wife\t of  Gurappa.  Bei\nng\n\tdissatisfied  by the said order, the plaintiff as  also\t D\ne-\n\tfendants  2  & 3 filed appeals in the High Court.  The\tHi\ngh\n\tCourt  by  the\timpugned judgment  allowed  the\t plaintiff\n's\n\tappeal and restored the decree of the trial Court for  l\/3\nrd\n\tshare  and dismissed the defendant's appeal. The High  Cou\nrt\n\theld that the 4th defendant was not legally married wife\nof\n\tdeceased  Gurappa. Hence this appeal by Defendants 2 & 3\nby\n\tspecial leave.\n\t    The\t question that was agitated before this\t Court\twa\ns:\n\tWhether proof of custom of Udiki marriage was adduced by t\nhe\n\tfourth defendant; and whether Udiki marriage itself  impli\ned\n\tthe  dissolution  of earlier marriage and  if  not,  wheth\ner\n\tseparate  custom of dissolution of the earlier marriage\t w\nas\n\tpleaded and proved.\n\tAllowing the appeal, this Court,\n\t    HELD:  Custom must be proved and the burden of proof\nis\n\ton the person who asserts it. A custom cannot be extended\nby\n\tlogical\t process. Customs cannot be extended by analogy\t a\nnd\n\tit cannot be established by a priori method. [8lB. E]\n\t    Nothing  need  be proved of which the  Courts  can\tta\nke\n\tjudicial  notice. When a custom has been  judicially  reco\ng-\n\tnised  by the Court then it passes into the law of the\tla\nnd\n\tas  proof of it becomes unnecessary under section  57(1)\nof\n\tthe Evidence Act. [81 F]\n\t    From the evidence on record, appreciated in the light\nof\n\tthe  case  law on the subject and  the\tauthoritative  tex\nts\n\trelating  to  the custom of dissolution and  Udiki  form\nof\n\tmarriage  prevalent among the Lingayats who are a  religio\nus\n\tsect following teachings of Basava, the Court entertains\nno\n\tdoubt  that there has been ancient and unbroken\t customs\nof\n\tdissolution  of marriage and of Serai Udiki  marriage  amo\nng\n\tthe  Panchamasal Lingayats which was judicially\t noticed\nby\n\tthe  Courts, and that the marriage in the instant  case,\nof\n\tthe  fourth defendant with Gurulingappa was proved  to\tha\nve\n\tbeen  customarily  dissolved and that she  was\tsubsequent\nly\n\tlegally married with Gurappa in the valid customary form\nof\n\tUdiki  marriage, whereafter, she lived with Gurappa as\thu\ns-\n\tband and wife until Gurappa died, and that, thereafter,\t s\nhe\n\tenjoyed the family pension by dint of her being nominated\nas\n\twife  of Gurappa to the knowledge of all concerned. She\t w\nas\n\taccepted by the community as wife of Gurappa even after\t h\nis\n\tdeath.\tThere  is,  therefore, no scope\t for  declaring\t t\nhe\n\tmarriage illegal posthumously. [84F-H; 85A]\n\t72\n\t    Virasangappa  v. Rudrappa & Anr., [1885] I.L.R 8  Madr\nas\n\t440; Pakhali Jina Magan v. Bai Jethi, I.L.R. 1941 Bom.\t53\n5;\n\tSankarlingam  v. Subban, [1894] 17 Madras 479;\tShivalingi\nah\n\tv.  Chowdamma,\tA.I.R. 1956 Mys. 17; Rahi v.  Govinda  Val\nad\n\tTeja, [1876-77] I.L.R. 1 Bom. 97; Edward v. Jenkins,  [189\n6]\n\t1  Ch.D.  308; Mohammed Ibrahim v. Shaik Ibrahim,  AIR\t19\n22\n\tP.C. 59; Ramalakshmi Ammal v. Sivanantha Perumal Sethuraya\nr,\n\t14  M.I.A. 570; Raja Rajendra Narain v. Kumar  Gangananda\n\n\n\nJUDGMENT:\n<\/pre>\n
\tOrs., AIR 1925 PC 213; D.C. Bara Banki v. Receiver of\t t
\nhe
\n\tEstate\tof Choudhry & Ors., AIR 1928 PC 202; Effuah  Amiss
\nah
\n\tv.  Effuah Krabah, AIR 1936 P.C. 147; Saraswati v.  Jagada
\nm-\n<\/p>\n
\tbal, AIR 1953 SC 201 and Uzagar Singh v. Mst. Jeo, AIR<\/a>\t19
\n59<\/span>
\n\tSC 1041, referred to.\n<\/p>\n
&
\n\t    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3373
\nof
\n\t1979.\n<\/p>\n
\t    From  the  Judgment and Decree dated 24.1. 1979  of\t t
\nhe
\n\tKarnataka  High Court in Regular Second Appeal Nos. 522\t a
\nnd
\n\t591 of 1973.\n<\/p>\n
\tR.B. Datar for the Appellants.
\n\tS.S. Javali and Ranjit Kumar for the Respondents.
\n\tThe Judgment of the Court was delivered by
\n\t    K.N. SAIKIA, J. This defendants’ appeal by special lea
\nve
\n\tis  from the judgment of the High Court of  Karnataka  dat
\ned
\n\t24.1.  1979  in regular Second Appeal Nos  522\/1973  and
\n59<\/span>
\n\t1\/1973 which arose out of the following facts.
\n\t    Mallappa  Kulkarni\thad two sons Veerappa  and  Gurapp
\na.\n<\/p>\n
\tVeerappa is survived by his son Lingappa. Gurappa, a railw
\nay
\n\temployee,  married Channavva (first wife) on 16.2. 1928\t b
\nut
\n\tfinding\t her issueless and sending her to her parent’s\tvi
\nl-\n<\/p>\n
\tlage, he married in 1935 his second wife Chinnavva who\tbo
\nre
\n\thim two daughters Shakuntalabai and Annapoornavva. Channav
\nva
\n\t(first wife) however used to pay occasional visits to Gura
\np-\n<\/p>\n
\tpa. Chinnavva (second wife) died in 1943 whereafter  Gurap
\npa
\n\tis said to have married Nilavva. Gurappa retired in 1961 a
\nnd
\n\tsettled permanently at Hubli constructing the suit house a
\nnd
\n\thimself occupied a part and let out the other part on  ren
\nt.\n<\/p>\n
\tAfter the death of Gurappa on 29.11.1976 his issueless fir
\nst
\n\twife  Channavva demanded 1\/3 share in his moveable  and\t i
\nm-\n<\/p>\n
\tmoveable properties, but finding it difficult to acquire h
\ner
\n\tshare sold her right to 1\/3 share to
\n\t73<\/span>
\n\tLingappa  son of late Veerappa on 29.3. 1967  for  Rs.5,00\n<\/p>\n
0.
\n\tThe  other  heirs  having rejected  Lingappa’s\trequest\t f
\nor
\n\tpartition  he instituted O.S. No. 387\/1968 in the  Court
\nof
\n\tAdditional  Munsif, Hubli impleading Channavva,\t Shakuntal
\na-\n<\/p>\n
\tbai,  Annapoornavva  and Nilavva (describing her  as  havi
\nng
\n\tillegal connection with deceased Gurappa) as first,  secon
\nd,
\n\tthird and fourth defendants, respectively, for partition
\nof
\n\t1\/3 share in the suit house and the moveable properties, a
\nnd
\n\tfor  possession thereof. The first defendant  supported\t t
\nhe
\n\tcase  of the plaintiff; the other defendants  contested\t t
\nhe
\n\tsuit  and  averred that the fourth  defendant  was  lawful
\nly
\n\tmarried\t wife  of Gurappa. On the  pleadings  the  followi
\nng
\n\tissues, inter alia, were settled:
\n\t“1.  Whether the plaintiff proves the execution of the\tsa
\nle
\n\tdeed by defendant No. 1?\n<\/p>\n
\t2. Whether the 1st defendant proves that she had valid tit
\nle
\n\tto the suit property and the alienation by her in favour
\nof
\n\tthe plaintiff is valid and legal?\n<\/p>\n
\t3.  Whether  the plaintiff has derived any  valid  title
\nby
\n\tvirtue of the sale deed in his favour?\n<\/p>\n
\t4.  Whether the defendant No. 4 proves that she\t is  legal
\nly
\n\twedded wife of the deceased Gurappa?”\n<\/p>\n
\t    On 13.1.1971 the trial Court passed a preliminary decr
\nee
\n\tfor  partition of 1\/3 share of Gurappa’s properties  in\t t
\nhe
\n\thands of defendants 2 to 4 by metes and bounds. The  secon
\nd,
\n\tthird  and fourth defendants appealed to the Civil Judge
\nat
\n\tHubli  impleading the plaintiff and the first  defendant
\nas
\n\trespondents  in regular Appeal No. 31\/1971 and\tthe  learn
\ned
\n\tCivil  Judge by his judgment dated 21.2. 1973 confirmed\t t
\nhe
\n\tdecree only modifying it to the extent of 1\/6 share  inste
\nad
\n\tof  1\/3\t share holding the fourth defendant  to\t be  legal
\nly
\n\tmarried\t wife of Gurappa. The second, third and\t fourth\t d
\ne-\n<\/p>\n
\tfendants  appealed  therefrom  in R.S.A.  591\/1973  and\t t
\nhe
\n\tplaintiff appealed in R.S.A. 522\/1973. The High Court by t
\nhe
\n\timpugned  judgment dated 24.1. 1979 allowed the\t plaintiff
\n‘s
\n\tappeal\tR.S.A.\tNo. 522 restoring the decree  of  the  tri
\nal
\n\tCourt  for 1\/3 share and dismissed R.S.A.  591\/1973  holdi
\nng
\n\tthat  the fourth defendant was not legally married  wife
\nof
\n\tGurappa. Hence this appeal by defendants two and three.
\n\t    Mr. R.B. Datar, the learned counsel for the\t appellant
\ns,
\n\tstating that the case hinges on the question of validity
\nof
\n\tfourth defendant’s
\n\t74<\/span>
\n\tmarriage, submits that the High Court while holding that t
\nhe
\n\tfourth\tdefendant  was not legally married wife\t of  Gurap
\npa
\n\toverlooked vital evidence on record in proof of her  custo
\nm-\n<\/p>\n
\tary Udiki marriage with Gurappa who himself declared her
\nas
\n\this  wife  wherefore  she earned family\t pension  after\t h
\ner
\n\thusband’s  (Gurappa’s)\tdeath. Mr. S.S. Javali\tthe  learn
\ned
\n\tcounsel for the respondents submits that there was no suff
\ni-\n<\/p>\n
\tcient evidence to establish the custom of Udiki marriage a
\nnd
\n\tat any rate no custom to support the dissolution of marria
\nge
\n\tof  the fourth defendant with her previous husband  Guruli
\nn-\n<\/p>\n
\tgappa  was  pleaded or proved. Mr. Datar  replied  that\t t
\nhe
\n\tcustom\tof Udiki marriage itself implied the dissolution
\nof
\n\tthe earlier ‘marriage of the woman and there was  sufficie
\nnt
\n\tevidence  in  support of the custom of\tdissolution  of\t t
\nhe
\n\tprevious  marriage and thereafter the Udiki marriage of\t t
\nhe
\n\tfourth defendant with Gurappa.
\n\t    The\t questions, therefore, are whether sufficient  pro
\nof
\n\tof  custom of Udiki marriage was adduced by the\t fourth\t d
\ne-\n<\/p>\n
\tfendant;  and  whether\tUdiki marriage\titself\timplied\t t
\nhe
\n\tdissolution  of\t the earlier marriage, and if  not,  wheth
\ner
\n\tseparate  custom of dissolution of her earlier marriage\t w
\nas
\n\tpleaded and proved. These were the questions in issue No.\n<\/p>\n
4.
\n\t    From  the records we find that the custom of Udiki\tma
\nr-\n<\/p>\n
\triage  was pleaded by the fourth defendant, in\ther  writt
\nen
\n\tstatement, stating that after the death of Chinnavva (seco
\nnd
\n\twife)  in the year 1943 Gurappa married her (fourth  defen
\nd-\n<\/p>\n
\tant)  after she divorced her first husband  Gurulingappa
\nby
\n\tmutual\tconsent and the marriage was in Udiki form at  Mir
\naj
\n\tin  accordance with their caste custom and  that  thereaft
\ner
\n\tshe  continued\tto live with Gurappa as his  wife  till\t h
\nis
\n\tdeath in the year 1966. She further stated that there was
\n a
\n\tcustom of Udiki form of marriage in Panchamsale sub-sect
\nof
\n\tLingayat community to which she belonged and that there\t w
\nas
\n\ta  custom for dissolution of marriage in her  sub-sect.\t S
\nhe
\n\talso  described\t the formalities of Udiki form\tof  marria
\nge
\n\tthat  a saree and a blouse were handed to her by the  brid
\ne-\n<\/p>\n
\tgroom Gurappa and the Mangalsutra was given by Gurappa aft
\ner
\n\tuttering Mantrums. The saree was worn by her and the Manga
\nl-\n<\/p>\n
\tsutra was tied round her neck. Considering the above in\t t
\nhe
\n\tcontext of issue No. 4 we entertain no doubt that the cust
\nom
\n\tof  Udiki  marriage was pleaded. It also  appears  that\t t
\nhe
\n\tcustom\tof  dissolution of marriage  prevalent\tamongst\t t
\nhe
\n\tcaste  was-also compositely pleaded to the above extent.
\nWe
\n\thave to see whether the above custom or customs were  prov
\ned
\n\tby evidence.\n<\/p>\n
\tIt would be logical first to take the question of custom
\nof
\n\tdissolu-\n<\/p>\n
\t75<\/span><\/p>\n
\ttion. In the written statement filed by the second defenda
\nnt
\n\tit  was stated that after Chinnavva’s death in 1943  Gurap
\npa
\n\tmarried the fourth defendant who divorced her first  husba
\nnd
\n\tGurulingappa  by mutual consent. We have, therefore, to\t s
\nee
\n\twhether\t the  custom of Udiki marriage itself  implied\tsu
\nch
\n\tprior  dissolution. The relevant texts and instances  reli
\ned
\n\ton may be referred to for this purpose.
\n\t    In\tVirasangappa  v. Rudrappa & Anr.,  [1885]  I.L.R.\n<\/p>\n
 8<\/span><\/p>\n
\tMadras\t440 the questions were whether Kusava,\tdaughter
\nof
\n\tRudrava,  who married Rudrappa was legitimate being born
\nin
\n\tlawful\twedlock\t according to the custom  of  Lingayats\t a
\nnd
\n\twhether\t the  said marriage was legalised by the  custom
\nto
\n\twhich the parties belonged, it was found that Rudrava was
\n18<\/span>
\n\tyears  earlier married to another person when she was 12
\nor
\n\t13 years old and out of Rudrava’s next marriage with Rudra
\np-\n<\/p>\n
\tpa  in Udiki form Kusava was born. The\tdefendant  contend
\ned
\n\tthat  the  second marriage of a wife forsaken by  the  fir
\nst
\n\thusband\t was  allowed  amongst the Lingayats;  that  such
\n a
\n\tmarriage  was  known as ‘Serai Udiki’ (giving  a  cloth)
\nas
\n\tdistinct  from ‘Lagna’ or ‘Dhara’, the first  marriage;\t a
\nnd
\n\tthat  Rudrappa married Rudrava in the Serai Udiki form;\t a
\nnd
\n\tthat the plaintiff and all the members of the family and t
\nhe
\n\tcaste  recognised that marriage and Kusava  was,  therefor
\ne,
\n\tlegitimate  and entitled to inherit. In that  case  eviden
\nce
\n\twas  produced to show that several marriages took  place
\nin
\n\tSerail Udiki form which was accepted by the society and\t t
\nhe
\n\tchildren  were considered legitimate. It was held  that\t t
\nhe
\n\tparties\t were  Sudras, and the Lingayat owed its  origin
\nto
\n\tVasava\twho  held that caste distinctions were\tunworthy
\nof
\n\tacceptance  and who repudiated Brahamanical observances.
\nIt
\n\twas  observed that the sect was particularly represented
\nin
\n\tMysore, to a certain extent in Wynad, also in ceded distri
\nct
\n\tin Coimbatore and the South Canara in Bombay Presidency\t a
\nnd
\n\tthat instances had been before the Court in which the rema
\nr-\n<\/p>\n
\triage of widows amongst that sect had been supported. It w
\nas
\n\tfound that Rudrava was deserted by her husband who had nev
\ner
\n\tconsummated  his  martage  and expressed  himself  ready
\nto
\n\treturn\tand  live with Rudrava only on\tthe  condition\tth
\nat
\n\tcertain\t property  was\tsecured to him by  deed.  When\tth
\nis
\n\trequest\t was not acceded to, he took no further interest
\nin
\n\tRudrava\t and left her without information about him and\t d
\nid
\n\tnot  prevent her from forming a new connection. It was\tal
\nso
\n\tin  evidence that Rudrava was treated as a  lawfully  wedd
\ned
\n\twife  both by the appellant and by the other members of\t t
\nhe
\n\tfamily\tand  there was proof to show that children  of\tma
\nr-\n<\/p>\n
\triages\tcontracted by wives deserted by their husbands\twe
\nre
\n\tnot  regarded as inferior in any respect to the\t parties
\nto
\n\tthe  suit  and were received in the Maths of  the  sect\t a
\nnd
\n\tinitiated as the children born of a first
\n\t76<\/span>
\n\tmarriage.  The court also observed that in matters  of\tth
\nis
\n\tkind  heresay  evidence like tradition may be  received\t a
\nnd
\n\tdirect\tevidence of such marriages was not  always  possib
\nle
\n\tand  one of the ways in which they might be proved was\tfr
\nom
\n\tthe  manner of their living and from the way in\t which\tth
\ney
\n\twere treated by the neighbouts. Kusava was accordingly\the
\nld
\n\tlegitimate.\n<\/p>\n
\t    In Mayne’s Treatise on Hindu Law and Usage 11th Edn.
\nat
\n\tpage 175 it is said:\n<\/p>\n
\t“When  we examine the usages of the aboriginal races, or
\nof
\n\tthose  who  have not come under Brahamanical  influence,
\nwe
\n\tfind  a\t system prevailing exactly like\t that  described
\nby
\n\tNarada.\t Among the Jat population of the Punjab, not only
\n a
\n\twidow,\tbut a wife who has been deserted or put away by\t h
\ner
\n\thusband, may marry again, and will have all the fights of
\n a
\n\tlawful\twife.  The same rule exists among the  Lingayats
\nof
\n\tSouth Kanara. In Western India, the second marnage of a wi
\nfe
\n\tor  widow (called Pat by the Maharattas, and Natra in  Guj
\na-\n<\/p>\n
\trat)  is  allowed among all the lower castes. The  cases
\nin
\n\twhich a wife may remarry are stated by Mr. Steele as  bein
\ng,
\n\tif  the husband prove impotent, or the\tparties\t continual
\nly
\n\tquarrel;  if the marriage was irregularly concluded;  if
\nby
\n\tmutual consent the husband breaks his wife’s neck  ornamen
\nt,
\n\tand gives her a chorchittee (writing of divorcement), or
\nif
\n\the  has been absent and unheard of for twelve years.  Shou
\nld
\n\the afterwards return, she may live with either party at\t h
\ner
\n\town  option, the person deserted being reimbursed  his\tma
\nr-\n<\/p>\n
\triage expenses. A widow’s pat is considered more  honourab
\nle
\n\tthan a wife’ but children by pat are equally legitimate wi
\nth
\n\tthose  by a first marnage. The right of divorce\t and  seco
\nnd
\n\tmarriage has been repeatedly affirmed by the Bombay Courts
\n.”\n<\/p>\n
\t    In Encyclopaedia of Religion and Ethics edited by  Jam
\nes
\n\tHastings  Vol.\t8 Page 69 we find that the Lingayats  are
\n a
\n\treligious  community in India, numbering nearly\t three\tmi
\nl-\n<\/p>\n
\tlions  at the. census of 19 11, of whom more than  half\t a
\nre
\n\tfound in the southern districts of the Bombay Presidency.
\nIn
\n\tthe Bombay districts of Belgaum and Bijapur one-third of t
\nhe
\n\tpopulation  is\tLingayat, and in the  adjacent\tdistrict
\nof
\n\tDharwar\t they  constitute nearly 50 per cent of\t the  tota
\nl.\n<\/p>\n
\tBeyond\tthe limits of the Bombay Presidency,  Lingayats\t a
\nre
\n\tnumerous in the Mysore and Hyderabad States. They also\tfo
\nrm
\n\tan important element
\n\t77<\/span>
\n\tin  the\t population of the north-west corner of\t the  Madr
\nas
\n\tPresidency.\n<\/p>\n
\t    According  to that Encyclopaedia the Lingayats are\tDr
\na-\n<\/p>\n
\tvidian,\t that  is to say, they belong to a  stock  that\t w
\nas
\n\testablished  in India before the arrival of the\t Aryans.
\nOf
\n\tthe Brahamanic triad–Brahma, Vishnu and Siva–they acknow
\nl-\n<\/p>\n
\tedge  only the god Siva, whose emblem, the linga, they\tbe
\nar
\n\ton  their persons. All wearers of the linga were  proclaim
\ned
\n\tequal  in the eyes of God. The traditional Lingayat  teach
\ner
\n\tis  Basava.  The denial of the supremacy  of  the  Brahman
\ns,
\n\tcoupled with the assertion of the essential equality of\t a
\nll
\n\tmen,  constituted  a vital departure from the  doctrines
\nof
\n\torthodox  Hinduism.  Other important innovations  were:\t t
\nhe
\n\tprohibition  of child-marriage; the removal of all  restri
\nc-\n<\/p>\n
\ttion  on widows remarrying. The Lingayats according  to\t t
\nhe
\n\tEncyclopaedia  appear  to  consist of three  groups  of\t s
\nub
\n\tdivisions  (1)\tPanchamsalis with full astavarna  rites\t (\n<\/p>\n
2)
\n\tNonPanchamsalis\t with astavarna rites  (3)  Non-Panchamsal
\nis
\n\twithout astavarana rites. The astavarna or eightfold  sacr
\na-\n<\/p>\n
\tment is a principal Lingayat ceremony. While describing\t t
\nhe
\n\tLingayats marriage ceremony it goes on to say that the tyi
\nng
\n\tof  the tali is the binding portion of the ceremony.  Befo
\nre
\n\tthe tali is given to the bridegroom, it is passed round\t t
\nhe
\n\tassembly  to be touched by all and blessed. As soon  as\t t
\nhe
\n\tbridegroom  ties  it on the bride, all those  present  thr
\now
\n\tover  the pair a shower of rice. The bridegroom places\tso
\nme
\n\tcuremill seed and jagri, or unrefined sugar, on the  bride
\n‘s
\n\thead, and the bride does the same to the bridegroom.
\n\t    The remarriage of widows was one of the points on  whi
\nch
\n\tBasava\tinsisted, and was probably one of the biggest  bon
\nes
\n\tof contention with the Brahmans. Widow remarriage is allow
\ned
\n\tat the present day, but the authorities at Ujjini see fit
\nto
\n\tdisregard  it. They say that among jangams it is  prohibit
\ned
\n\tand  that  among the other classes of Lingayats\t it  is\t t
\nhe
\n\tgrowth\tof  custom.  It also says:  “Among  Lingayats  wid
\now
\n\tremarriage is common, and divorce is permissible. The  ord
\ni-\n<\/p>\n
\tnary   law   of\t Hindus\t is  followed  in  regard   to\t t
\nhe
\n\tinheritance.”\n<\/p>\n
\t    The\t Gazetteer of Bombay State, Dharwar  District,\t19
\n59<\/span>
\n\tcontains  a description of Lingayats marriage and  the\tma
\nr-\n<\/p>\n
\triage  rules.  At page 138 it says: “The  Lingayats  do\t n
\not
\n\tallow  the children of brothers to intermarry, nor may\tsi
\ns-\n<\/p>\n
\tter’s  children. Marriage with a mother’s sister’s  daught
\ner
\n\tis  also prohibited. A man may marry his sister’s  daughte
\nr,
\n\tbut  if\t the  sister be a younger sister  such\tmarriage
\nis
\n\tlooked\ton with disfavour. Widow marriage is allowed at\t t
\nhe
\n\tpresent\t day, except amongst Jangamas. Divorce is  permiss
\ni-\n<\/p>\n
\tble. The chief feature of the
\n\t78<\/span>
\n\tactual marriage ceremony is the tying on of the\t mangalsut
\nra
\n\t(bride’s  luck neck-thread), is performed by the  bridegro
\nom
\n\tunder  the Jangama’s discretion. The ceremony begins by\t t
\nhe
\n\tmathapad bowing to the mangalsutra, and proclaiming that
\nit
\n\tis about to be tied to the bride’s neck. The bridegroom la
\nys
\n\this right hand on the bride’s fight hand, the mathapati la
\nys
\n\tthe  lucky thread on the boy’s hand. The teacher  gives\t t
\nhe
\n\torder to tye on the lucky thread and the bridegroom ties
\nit
\n\ton the girl’s neck.”\n<\/p>\n
\t    In\tthe  Castes and Tribes of Southern  India  by  Edg
\nar
\n\tThurston,  first published in 1909 reprinted in 1975, it
\nis
\n\tsaid  that the marriage of widows was one of the  points
\non
\n\twhich  Basava insisted and that the practice is widely\tfo
\nl-\n<\/p>\n
\tlowed and that divorce is permitted on proof of\t misconduc
\nt.\n<\/p>\n
\tThe  husband can exercise his right to divorce his  wife
\nby
\n\tproving before a Panchayat the alleged misconduct. The\twi
\nfe
\n\tcan  only  claim  to divorce her husband when  he  has\tbe
\nen
\n\toutcasted. Wives who have been divorced cannot remarry.\t T
\nhe
\n\tabove answers are given on the authority of the Ujjini mut
\nt.\n<\/p>\n
\tIt goes on to say: “There appears to be considerable  dive
\nr-\n<\/p>\n
\tgence of opinion in other quarters. By some it is positive
\nly
\n\tasserted  that\tdivorce is not permitted under\tany  circu
\nm-\n<\/p>\n
\tstances;  that\tthe  husband and wife may  separate  on\t t
\nhe
\n\tground\tof incompatibility of temper or for misconduct;\t a
\nnd
\n\tthat  in  these circumstances the husband is at\t liberty
\nto
\n\tmarry again, while the wife is not. Others say that  divor
\nce
\n\tis permitted, and that both parties are at liberty to rema
\nr-\n<\/p>\n
\try.” In connection with the Lingayats of South Canara, it
\nis
\n\trecorded, in the Indian Law Reports that “second marriage
\nof
\n\ta  wife forsaken by the first husband is allowed. Such\tma
\nr-\n<\/p>\n
\triage  is known as serai udiki (giving a cloth); as  disti
\nn-\n<\/p>\n
\tguished from lagna or dhara, the first marriage.”\n<\/p>\n
\t    In Hindu Law by S.V. Gupte 3rd Edn. Vol. II, page 619
\nwe
\n\tread  that divorce was not allowed by general Hindu law,
\nit
\n\twas in some cases permitted by customs. Such custom,  howe
\nv-\n<\/p>\n
\ter, prevailed only amongst the lower classes, especially
\nin
\n\tthe Bombay Presidency. Customs to be recognised by the Cou
\nrt
\n\tmust be valid. Though Hindu law did not contemplate divorc
\ne,
\n\tstill  in  those districts, where it was  recognised  as
\nan
\n\testablished custom, it had the force of law. In Sankarling
\nam
\n\tv. Subban, [1894] 17 Madras 479 divorce by consent was\the
\nld
\n\tvalid as a matter of custom of the Pakhali caste of  Ahmed
\na-\n<\/p>\n
\tbad  observing\tthat there was nothing immoral\tin  a  cas
\nte
\n\tcustom\tby  which divorce and remarriage were  permitted
\nby
\n\tmutual\tagreement.  There was no invalidity in a  custom
\nby
\n\twhich married couple on account of disagreement between th
\nem
\n\tby consent could divorce and were
\n\t79<\/span>
\n\tdivorced by parties approaching the headman and other  rel
\na-\n<\/p>\n
\ttions,\tpaying\tcertain amount and taking away tali  or\t t
\nhe
\n\tsacred thread from round the wife’s neck and giving it\tba
\nck
\n\tto  the husband. It was only when the divorce  was  enforc
\ned
\n\tagainst\t the  wishes of his wife that the  custom  permitt
\ned
\n\tdivorce\t would\tbe  illegal. 1n Pakhali Jina  Magan  v.\t B
\nai
\n\tJethi,\tI.L.R.\t1941 Bom 535 it was held that  a  custom
\nof
\n\tdivorce\t with mutual consent of husband and wife  stated
\nto
\n\texist among the Hindus of Pakhali caste of Ahmedabad was n
\not
\n\trepugnant  to  Hindu  Law. When it was\tcontended  that\t t
\nhe
\n\tinstitution of divorce was itself opposed to the concept
\nof
\n\tHindu  law  and that there was no decision of any  Court
\nin
\n\tIndia  which  held a custom of divorce as valid\t as  it\t w
\nas
\n\tobserved  that\twould be going too far and that it  was\t o
\nb-\n<\/p>\n
\tserved in Tagore Law Lectures, 1908, on Customs and  Custo
\nm-\n<\/p>\n
\tary  Law in British India, “divorce is not  contemplated
\nby
\n\tthe Hindu Law but it is not repugnant to its principles, a
\nnd
\n\tif there be a well established custom in its support, it m
\nay
\n\toverride the general provisions of that law.” It was furth
\ner
\n\tobserved  that there had been many cases in our Courts\tar
\nt-\n<\/p>\n
\tsing out of divorce in the lower castes. 1n all those  cas
\nes
\n\teven where it was held that the divorce had not been prope
\nr-\n<\/p>\n
\tly granted, it had been taken for granted that the custom
\nof
\n\tdivorce\t can validly exist in a particular community,  esp
\ne-\n<\/p>\n
\tcially if it is a sudra community, but that divorce  grant
\ned
\n\tcannot be forced by the caste against an Unwilling person.
\n\t    In Shivalingiah v. Chowdamma, A.I.R. 1956 Mys 17 it\t h
\nas
\n\tbeen  held that when a woman lives for a number of years
\nin
\n\tclose  association  with a man and bears  children  who\t a
\nre
\n\tacknowledged  by the man as born to him, relations and\tpe
\nr-\n<\/p>\n
\tsons of the village treat them as such, there is a  presum
\np-\n<\/p>\n
\ttion  of legitimacy, as vice and immorality are not  usual
\nly
\n\tattributed to such association between a man and a woman.
\nIn
\n\tRahi  v.  Govinda Valad Teja, [1876] 77 I.L.R 1 Bom  97\t t
\nhe
\n\tlegitimacy of ‘Pat’ or ‘Pata’ or ‘Natra’ marriages among t
\nhe
\n\tMarathas of Bombay Presidency was accepted. Relying on Hin
\ndu
\n\tlaw  of Strange and the statement of Mr. Steele who  in\t h
\nis
\n\tLaw and Custom of Hindoo castes, which has been accepted
\nas
\n\tauthority by the Courts, said that in that Presidency thou
\ngh
\n\tforbidden in the present age (Kaliyug) to twiceborn  caste
\ns,
\n\tit  was\t not forbidden to sudras and that Manu\tappeared
\nto
\n\thave limited the prohibition to the twiceborn classes.\tTh
\nis
\n\thas  been  referred  to by Sir Gooroodas  Bannerjee  in\t h
\nis
\n\tTagore Law Lectures on Hindu Law of Marriage and  Stridhan
\na,
\n\tlecture\t VI. Devala expressly permitted re-marriage  of\t a
\nll
\n\tclasses. Narada also said:
\n\t“Nashte mrite prabrajite klaibe cha patite patau; Pan-\n<\/p>\n
\t80<\/span><\/p>\n
\tchaswapatsu narinang patih anyo bidhiate.”\n<\/p>\n
\t    In\tcases  of  first husband having\t perished,  or\tdi
\ned
\n\tnaturally or gone abroad, or if he is impotent, or have lo
\nst
\n\this caste, in these five calamities a woman may take anoth
\ner
\n\thusband.\n<\/p>\n
\t    In Kautilya’s Arthasastra (See R Shamasastry, 2nd Ed.
\np.\n<\/p>\n
\t189)  which has been claimed to have been a work during\t t
\nhe
\n\tperiod\t32  1-296  B.C., anterior, therefore,  to  Manu\t a
\nnd
\n\tYajnavalkya, said: “If a husband either is of bad characte
\nr,
\n\tor is long gone abroad or has become a traitor to his  kin
\ng,
\n\tor is likely to endanger the life of his wife, or has fall
\nen
\n\tfrom his caste, or has lost virility, he may be abandoned
\nby
\n\this  wife.” He further writes: “A woman hating\ther  husba
\nnd
\n\tcannot dissolve her marriage with him against his will.\t N
\nor
\n\tcan  a man dissolve his marriage with his wife\tagainst\t h
\ner
\n\twill.  But  from  mutual enmity,  divorce  may\tbe  obtain
\ned
\n\t(parasparam  dveshanmokshah). If a man, apprehending  dang
\ner
\n\tfrom  his wife, desires divorce (mokshamichchhet), he  sha
\nll
\n\treturn to her whatever she was given (on the occasion of h
\ner
\n\tmarriage). If a woman, under the apprehension of danger fr
\nom
\n\ther husband, desires divorce, she shall forfeit her claim
\nto
\n\ther  property; marriages contracted in accordance  with\t t
\nhe
\n\tcustoms\t of  the  first four kinds of  marriages  cannot
\nbe
\n\tdissolved.” There is no doubt that the principle that once
\n a
\n\tmarriage always a marriage was a subsequent development.
\n\tAncient Hindu Law also said:
\n\tTasmindesha ya acarah paramparyakramagatah; Varnanam santa
\ni-\n<\/p>\n
\tralanam sa sadachara uchyate.
\n\tPractice  that obtains from generation to  generation  amo
\nng
\n\tthe pure and mixed classes is called sadachara.
\n\t    The\t next question is whether the custom of\t Udiki\tma
\nr-\n<\/p>\n
\triage  would be a valid custom under law. In Edward v.\tJe
\nn-\n<\/p>\n
\tkins,  [1896]  1 Ch.D. 308 the characteristics\tof  a  val
\nid
\n\tcustom\tare stated. They are, that it must be of  immemori
\nal
\n\texistence, it must be reasonable, it must, be certain and
\nit
\n\tmust  be continuous. Every custom must have to be in  exis
\nt-\n<\/p>\n
\tence  preceding memory of man and if the proof\twas  carri
\ned
\n\tback as far as living memory would go, it should be presum
\ned
\n\tthat the right claimed had existed from time of legal  mem
\no-\n<\/p>\n
\try.  This was reiterated in Mohammed Ibrahim v. Shaik  Ibr
\na-\n<\/p>\n
\thim,  AIR 1922 P.C. 59. In Ramalakshmi Ammal  v.  Sivanant
\nha
\n\tPerumal Sethurayar, 14 M.I.A.\n<\/p>\n
\t81<\/span><\/p>\n
\t570,  it was held that it was the essence of special  usag
\nes
\n\tmodifying  the\tordinary law, (in that case  of\t successio\n<\/p>\n
n)
\n\tthat  they should be ancient and invariable; it\t is  furth
\ner
\n\tessential that they should be established to be so, by cle
\nar
\n\tand  unambiguous  evidence and that it is only by  means
\nof
\n\tsuch findings that the Courts can be assured of their exis
\nt-\n<\/p>\n
\tence  and that they possess the conditions of antiquity\t a
\nnd
\n\tcontinuity and certainty on which alone their legal title
\nto
\n\trecognition depends. Custom must be proved and the burden
\nof
\n\tproof is on the person who asserts it.
\n\t    The\t Privy\tCouncil\t in Raja Rajendra  Narain  v.  Kum
\nar
\n\tGangananda  &  Ors., AIR 1925 PC 213, held  that  after\t t
\nhe
\n\texistence  of  a custom for some years has  been  proved
\nby
\n\tdirect\tevidence,  it can only, as a rule, be  shown  to
\nbe
\n\timmemorial  by\thearsay evidence and it is for\tthis  reas
\non
\n\tthat such an evidence is allowable as an explanation to\t t
\nhe
\n\tgeneral\t rule. In D.C. Bara Banki v. Receiver of the  Esta
\nte
\n\tof  Choudhry & Ors., AIR 1928 PC 202, it has been held\tth
\nat
\n\tbreach of a custom in a particular instance need not destr
\noy
\n\tit  for all times. In Effuah Amissah v. Effuah\tKrabah,\t A
\nIR
\n\t1936  P.C.  147, it was held that material customs  must
\nbe
\n\tproved in the first instance by calling witnesses acquaint
\ned
\n\twith them until a particular custom has by frequent proof
\nin
\n\tthe Court becomes so notorious that the Courts take judici
\nal
\n\tnotice\tof it. A custom cannot be extended by logical  pro
\nc-\n<\/p>\n
\tess.  In  Saraswati v. Jagadambal, AIR 1953 SC 201,  it\t h
\nas
\n\tbeen  held that oral evidence as to instances which  can
\nbe
\n\tproved by documentary evidence cannot be fairly relied\tup
\non
\n\tto  establish  custom when no satisfactory  explanation\t f
\nor
\n\twithholding  the  best evidence is given. Custom  cannot
\nbe
\n\textended by analogy and it cannot be established by a prio
\nri
\n\tmethod.\t Uzagar\t Singh v. Mst. Jeo, AIR<\/a> 1959 SC\t 1041,\tla
\nid
\n\tdown  that  the ordinary rule is that a custom,\t general
\nor
\n\totherwise, has to be proved under Section 57 of the Eviden
\nce
\n\tAct. However, nothing need be proved of which the Courts c
\nan
\n\ttake  judicial\tnotice. When a custom  has  been  judicial
\nly
\n\trecognised  by the Court then it passes into the law of\t t
\nhe
\n\tland as proof of it becomes unnecessary under Section  57(\n<\/p>\n
1)
\n\tof  the\t Evidence  Act. “In regard to  marriage”,  says\t S
\nir
\n\tGooroodas  Banerjee, “the ordinary Hindu Law does  not,\t a
\nnd
\n\tcannot, form the common rule for all sects alike.”\n<\/p>\n
\t    Examining  the written statements and the  evidence\t a
\nd-\n<\/p>\n
\tduced in this case we find that the fourth defendant Neela
\nva
\n\tas DW-7 deposed: “Prior to my marriage with late Gurappa,
\nit
\n\twas  said that during my childhood I had married. The  pri
\nor
\n\thusband’s  name was one Gurulingappa. When I was aged  abo
\nut
\n\t16 or 17 years, my marriage with Gurulingappa was dissolve
\nd.\n<\/p>\n
\tThe dissolution of the marriage took
\n\t82<\/span>
\n\tplace  in the house of my elder brother Parappa Sallapur
\nat
\n\tHubli. In the presence of one N.M. Patil, S.R. Hiremath, t
\nhe
\n\tthen  Chief Officer, my eider sister and her husband and
\nmy
\n\tmother’s brother’s son one Rachappa, my prior husband  Gur
\nu-\n<\/p>\n
\tlingappa, the dissolution took place. When I was aged  abo
\nut
\n\t23 or 24 years, my marriage with the late Gurappa took pla
\nce
\n\tat  Miraj.”  The marriage which took place at Miraj  was
\nin
\n\tUdiki form. There was a custom of Udiki form of marriage
\nin
\n\tPanchamasale  subject  of Lingayat community.  I  belong
\nto
\n\tPanchamamasale subject. There is also a custom for  dissol
\nu-\n<\/p>\n
\ttion  of  marriage  in our section. The\t dissolution  of
\nmy
\n\tmarriage with Gurulingappa was effected by my declaration
\nin
\n\tthe presence of elders, that I did not require\tGurulingap
\npa
\n\tas  my\thusband and by similar declaration  by\tGurulingap
\npa
\n\tthat he did not require me as his wife. That declaration w
\nas
\n\tfollowed by our mutual expression of liberty to marry anot
\nh-\n<\/p>\n
\ter spouse. That was approved by the elders present then.”
\nIn
\n\tcross-examination  on  behalf  of the  plaintiff  she  sai
\nd:\n<\/p>\n
\t“Since my marriage with Gurulingappa had been performed wh
\nen
\n\tI  was too young and since I did not desire to\tcontinue
\nas
\n\this  wife,  a  situation arose for the\tdissolution  of\t t
\nhe
\n\tmarriage.  There  was no other reason for  the\tdissolutio
\nn.\n<\/p>\n
\tAbout  13  years after my marriage  with  Gurulingappa,\t t
\nhe
\n\tmarriage was dissolved.” “I was not residing in my husband
\n‘s
\n\thouse  ever  since my marriage with Gurulingappa but  I\t w
\nas
\n\tresiding in my parent’s house.” She also deposed that to h
\ner
\n\tknowledge  her’s was the only case where there was  dissol
\nu-\n<\/p>\n
\ttion  in their family from the time of their ancestors.\t H
\ner
\n\tmother was married in usual form and not in Udiki form.\t N
\nor
\n\ther  brothers  or sisters got a dissolution  of\t their\tma
\nr-\n<\/p>\n
\triages.\t She  also did not know if there were  instances
\nof
\n\tdissolution of marriages among the relations of\t Gurulinga
\np-\n<\/p>\n
\tpa. She denied the suggestion that there was no\t dissoluti
\non
\n\tof  the\t marriage and that she continued to be the  wife
\nof
\n\tGurulingappa.  DW-8  Parappa, eider brother  of\t the  four
\nth
\n\tdefendant  testified  about her\t re-marriage  with  Gurapp
\na.\n<\/p>\n
\tAccording to him there was a custom in the Lingayat commun
\ni-\n<\/p>\n
\tty  for\t dissolution of the marriage and he could  give\t o
\nut
\n\tcertain instances of Udiki form of marriage in their famil
\ny,
\n\trelations and friends. In his own family his eider  sister
\n‘s
\n\tmarriage  was gone through in Udiki form. His  wife’s  eid
\ner
\n\tsister\twas also married in Udiki form. He did not give\t t
\nhe
\n\tnames  of  the\tpersons having entered into  Udiki  form
\nof
\n\tmarriage at that time but said that there were thousands
\nof
\n\tinstances. The dissolution of the marriage of fourth defen
\nd-\n<\/p>\n
\tant took place in his Railway Quarters at Hubli.  Outsider
\ns,
\n\tnamely,\t Shri S.R. Hiremath, N.M. Patil were present.  Amo
\nng
\n\this  relations, his eider sister, his cousin,  Gurulingapp
\na,
\n\this  sister  and the fourth defendant were present.  He\t h
\nad
\n\twritten a letter to S.R. Hiremath requesting him
\n\t83<\/span>
\n\tto  come over there. He requested the other persons also
\nto
\n\tcome there. It was about 7.30 or 8.00 P.M. when the dissol
\nu-\n<\/p>\n
\ttion took place. The fourth defendant expressed that she h
\nad
\n\tbeen  married during her childhood and she was not going
\nto
\n\tcontinue with Shri Gurulingappa. Gurulingappa also express
\ned
\n\tthat in view of the big disparity in age between himself a
\nnd
\n\tthe  fourth defendant and in view of the fact that  she\t h
\nad
\n\texpressed her intention for dissolution, he had no objecti
\non
\n\tfor  dissolution. Thereafter, Hiremath, Patil and his  rel
\na-\n<\/p>\n
\ttions  also consented for the dissolution of  the  marriag
\ne.\n<\/p>\n
\tParappa’s  mother  removed  the Tali from the  neck  of\t t
\nhe
\n\tfourth\tdefendant and handed over the same to  Gurulingapp
\na.\n<\/p>\n
\tGurulingappa,  thereafter, went away telling that he was
\nat
\n\tliberty\t to marry again; and he later had married again.
\nHe
\n\tclearly\t stated that as per the custom of the  caste,  the
\nre
\n\twas  nothing more to be done for the dissolution. This\twi
\nt-\n<\/p>\n
\tness further deposed that in 1943, the Udiki marriage of t
\nhe
\n\tfourth\tdefendant  took place at Miraj. At the time  of\t r
\ne-\n<\/p>\n
\tmarriage she was aged about 19 or 20 years. Parappa contac
\nt-\n<\/p>\n
\ted  Gurappa for the re-marriage. Gurappa brought his  fath
\ner
\n\twith  him  and the re-marriage was fixed. He got  his  eid
\ner
\n\tsister\tand  his  brother-in-law from  Bijapur.\t His  moth
\ner
\n\tRachappa  and his wife were present at the time\t of  re-ma
\nr-\n<\/p>\n
\triage  in addition to those who came from  Bijapur.  Gurap
\npa
\n\tand Jamakhandi were already there. A priest was\t officiati
\nng
\n\tthe  re-marriage. The lady who had already  undergone  Udi
\nki
\n\tmarriage was requested to present the clothes to the  brid
\ne-\n<\/p>\n
\tgroom  and gold was brought by Gurappa and that\t was  hand
\ned
\n\tover to the priest who in turn gave it to the bride. Prese
\nn-\n<\/p>\n
\ttation\tof saris and blouses was made by Udiki form of\tma
\nr-\n<\/p>\n
\triage. Mangalsutra had been brought and it was given to\t t
\nhe
\n\tpriest\twho enchanted some Mantrum and, thereafter,  it\t w
\nas
\n\tgiven  to Gurappa who in turn tied it round the neck of\t t
\nhe
\n\tfourth defendant. The above said function of tying Mangals
\nu-\n<\/p>\n
\ttra  took place in God’s room. Then the married\t couple\t o
\nf-\n<\/p>\n
\tfered their pranams to God. Thereafter, the priest tied\t t
\nhe
\n\tends of the clothes of bride and bridegroom who\t thereafte
\nr,
\n\tprostrated before the elders to receive their blessings.
\nIt
\n\tappears that this witness was thoroughly cross-examined\t b
\nut
\n\tcould not be dislodged.
\n\t    DW-9  Gangadhara  deposed  that he knew  as\t to  Gurap
\npa
\n\thaving\tbeen married in Udiki form and that the\t fourth\t d
\ne-\n<\/p>\n
\tfendant\t Neelava was his Udiki wife. He was present  at\t t
\nhe
\n\tmarriage. He gives vivid description of the ceremony inclu
\nd-\n<\/p>\n
\ting  the  persons who were present. He\ttestified  that\t t
\nhe
\n\tpriest\tenchanted  mantrum and thereafter  handed  over\t t
\nhe
\n\tGuladali  to Gurappa and, as directed by the priest  to\t t
\nie
\n\tGuladali  around  the  neck of his wife,  Gurappa  tied\t t
\nhe
\n\tGuladali.  Mr. Datar says Guladali meant Tali. The  clothi
\nng
\n\twas presented by each
\n\t84<\/span>
\n\tparty  to the other. As per the direction of the priest\t t
\nhe
\n\tbride made pranams to the elders present there. This witne
\nss
\n\ttoo  was thoroughly cross-examined but could not  be  shak
\nen
\n\tfrom his testimony.\n<\/p>\n
\t    DW-10  Neelakantappa Patil corroborated DWs.8 and  9
\nin
\n\tmaterial particulars. DW-11 Rachappa testified to the diss
\no-\n<\/p>\n
\tlution\tof the fourth defendants marriage with\tGurulingap
\npa
\n\tin vivid details. DW-12 Gurulingappa himself testified\tth
\nat
\n\this  marriage with the fourth defendant was dissolved,\tth
\nus
\n\tfully corroborating the other witnesses. He clearly  depos
\ned
\n\tthat the fourth defendant’s mother removed the Tali from h
\ner
\n\tneck and gave it to him and he took it, went home and subs
\ne-\n<\/p>\n
\tquently married again.
\n\t    Mr. Datar states on behalf of the second & third defen
\nd-\n<\/p>\n
\tants  that Neelava is dead and that while she was alive\t s
\nhe
\n\twas  addressed as younger mother by the children. It is\t n
\not
\n\tdenied that till her death she enjoyed the family pension
\nas
\n\twidow of Gurappa to the knowledge of the plaintiff. There
\nis
\n\tno  evidence  to show that she was not accepted as  wife
\nof
\n\tGurappa by the members of the community though in the plai
\nnt
\n\tshe  was  described as having had illegal  connections\twi
\nth
\n\tGurappa.\n<\/p>\n
\t    The learned counsel for the respondents submits that a
\nll
\n\tthe  witnesses\twere near relations and hence could  not
\nbe
\n\tbelieved. We do not agree. All elders were not relatives a
\nnd
\n\ttheir  corroborated  testimony could not be  discarded.\t T
\nhe
\n\tsecond\tand  third defendants in  their\t written  statemen
\nts
\n\tasserted  that Neelava was legally married wife of  Gurapp
\na.\n<\/p>\n
\tThe High Court ignored these vital pieces of evidence  whi
\nch
\n\tthe learned Civil Judge rightly considered.
\n\t    From  the above evidence on record, appreciated  in\t t
\nhe
\n\tlight  of the case law on the subject and the  authoritati
\nve
\n\ttexts as discussed above relating to the custom of  dissol
\nu-\n<\/p>\n
\ttion and Udiki form of marriage prevalent among the  Linga
\ny-\n<\/p>\n
\tats who are a religious sect following teachings of  Basav
\na,
\n\twe entertain no doubt that there has been ancient and unbr
\no-\n<\/p>\n
\tken  customs of dissolution of marriage and of\tserai  Udi
\nki
\n\tmarriage among the Pnachamasale Lingayats which was  alrea
\ndy
\n\tjudicially  noticed by the Courts, and that the marriage
\nof
\n\tthe  fourth defendant with Gurulingappa was proved  to\tha
\nve
\n\tbeen  customarily  dissolved and that she  was\tsubsequent
\nly
\n\tlegally married with Gurappa in the valid customary form
\nof
\n\tUdiki  marriage, whereafter, she lived with Gurappa as\thu
\ns-\n<\/p>\n
\tband  and wife until Gurappa died, and that  thereafter\t s
\nhe
\n\tenjoyed the family pension by dint of her being nominated
\nas
\n\t85<\/span>
\n\twife  by Gurappa to the knowledge of all concerned. She\t w
\nas
\n\taccepted by the community as wife of Gurappa even after\t h
\nis
\n\tdeath.\tThere  is,  therefore, no scope\t for  declaring\t t
\nhe
\n\tmarriage illegal posthumously.
\n\t    The result is that this appeal is allowed, the  judgme
\nnt
\n\tof  the High Court is set aside and the judgment and  decr
\nee
\n\tof  the\t Civil Judge are restored, without any order  as
\nto
\n\tcosts.\n<\/p>\n
\tY.L.\t\t\t\t\t\t      Appe\nal\n\tallowed.\n\t86<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shakuntalabai & Anr vs L.V. Kulkarni & Anr on 28 March, 1989 Equivalent citations: 1989 AIR 1359, 1989 SCR (2) 70 Author: K Saikia Bench: Saikia, K.N. (J) PETITIONER: SHAKUNTALABAI & ANR. Vs. RESPONDENT: L.V. KULKARNI & ANR. DATE OF JUDGMENT28\/03\/1989 BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) OZA, G.L. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-33806","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShakuntalabai & Anr vs L.V. 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