1. The appellant before us was the original plaintiff who sued for a declaration of her right as the heir of her step-sister Ratan. The parties are Kolis by caste. Ratan was the daughter of one Hiria by Hiria's wife Ramli. The plaintiff is the daughter of Hiria by another wife. It appears that Ratan had been three times married before suit, and had been divorced from her former husbands. The second defendant was her fourth husband to whom she was married in 1907. Shortly after that Hiria died and about a week later Ramli died. Their property went in part to Ratan and in part to the present plaintiff. On the 33rd October 1908, Bai Ratan died. The first defendant took possession of her property claiming as heir and also under a will. The second defendant also claimed as heir and under another will.
2. In the trial Court the decision went in favour of the plaintiff, who was held to be the preferential heir to Ratan's stridhan property, the Court holding that Ratan's marriage with the second defendant was in the asura, that is, an unapproved form. It followed that the preferential heir was the step-sister and not the husband or the cousin.
3. The husband alone appealed to the District Court, and there he has succeeded, because in the District Court's opinion his marriage with Ratan was not in the asura form and was not in any unapproved form.
4. The only question involved in the appeal is whether in the circumstances of the case the marriage of the second defendant with Ratan is to be considered as a marriage in an approved or in an unapproved form. The parties, as we have said, are Kolis. Now it seems to us that we start with this proposition that so far as regards the present case at least there are admittedly but two valid forms of marriage now subsisting, whereof the one is the brahma or the approved, and the other is the asura or the unapproved form. It is admitted by Mr. Desai that nothing can be urged against the validity of the second defendant's marriage with Ratan. That being, so, it appears to us to follow that if the marriage is to be held to be unapproved, it can only be so held if it is regarded as a marriage in the asura form. On the evidence, however, we are satisfied that it cannot be so regarded.
5. The essence of the asura form, as we understand it, is that a bride-price should be paid to the father or other relative who gives away the bride in consideration for the marriage. That is disapproved because it runs counter to the text of Manu where it is said: ' Let no father, who knows the law, receive a gratuity, however small, for giving his daughter in marriage since the man who, through avarice, takes a gratuity for that purpose is a seller of his offspring.' The meaning of this text has been further expounded by Sir Narayan Chandavarkar in Chunilal v. Surajram ILR (1909) 33 Bom. 433, where the learned Judge says : ' What distinguishes the one form from the other is that, in a brahma marriage it is a gift of the girl pure and simple ; in the asura, it is the sale of the bride for pecuniary consideration.' Further authority it is not necessary for us to invoke, but reference may be made to the decision of the Madras High Court in S. Authike-savulu Chetty v. S. Ratnanujam Chetty ILR (1909) Mad. 512 : 11 Bom. L.R. 708, where the learned Chief Justice and Mr. Justice Sankaran Nair took the same view upon this topic. It is there said that the distinctive mark of the asura form is the payment of money for the bride, and the absence of such payment of a bride-price is a distinctive mark of the approved form.
6. If then that is the meaning of the amra form of marriage, it is plain upon the findings which have been recorded, that the remarriage of the second defendant with Ratan is outside this form, for the learned Judge of the lower appellate Court finds that the father by whom the bride was given away received no pecuniary benefit from the marriage. In these circumstances and upon this finding of fact, we are of opinion, that the re-marriage falls outside that definition of the asura form which is to be collected from the judgment of Sir Narayan Chandavarkar and the other authorities referred to.
7. But then it was said by Mr. Desai that even although he might not be successful in bringing this re-marriage within the strict definition of the asura form, yet it ought to be held to be unapproved in a general way, because the sense and spirit of the Hindu law regarded such a re-marriage of a female with disapproval. The first answer to this argument seems to us to be supplied by the admission that, so far at least as this case is concerned, the asura form is the only surviving unapproved form of a valid marriage; and, that being so, if the remarriage is not in the asura form, it is not unapproved. Moreover the learned pleader was fail to admit that he was unable to call our attention to any express text quotable as authority for his proposition that the remarriage should be considered vaguely or generally unapproved. He urged, however, that the nuptial texts were in terms restricted to the marriage of a kanya or virgin, and that, therefore, the marriage of this woman Ratan was outside those texts. That no doubt is so, but it does not appear to us to follow that because such a marriage falls outside the particular texts dealing with the particular subject of the marriage of a kanya, therefore the marriage must be held whatever may be the facts of the case, to have been performed in an unapproved form. It is, we think, important to observe that the division between the approved and the unapproved forms of marriage contains in it nothing that is technical or fanciful or arbitrary. It is a division which is based on the reason and justice of the thing ; and the forms that incurred the ritual disapproval were disapproved-for valid reasons, which rightly fixed a stigma upon such imperfect unions. If that is so, then it is our duty to-day to see whether any-such stigma should now be placed upon such a marriage as the -one now before us, regard being had to the ordinary presumption in favour of the approved form in the case of a 'valid marriage celebrated with the due ceremonies. As we have said, there is o direct authority for the appellant's contention -; nor is there any text which formally decides that such a marriage must be held to be in the unapproved form. Admittedly, remarriage between parties of the Koli caste is valid, and there is nothing before us to suggest that the people of that caste regard it with any social censure or disapproval. This seems to us to be a capital consideration when we are administering a system of jurisprudence where established custom plays such an important part as it does in Hindu law.
8. Mr. Desai's argument, as we understand it, practically amounts to an invitation to us today to add one more instance of the unapproved form to the categories which already exist. In the absence of any authority for so doing, we cannot accede -to this argument, but must pronounce that the marriage, of the validity of which there is no dispute, which is shown not to fall within the definition of asura, and which was celebrated with all the forms and rites peculiar to the brahma type, was celebrated in an approved form.
9. We must, therefore, confirm the decree of the Court below and dismiss this appeal with costs.