1. This Letters Patent Appeal is directed against the judgment and decree of our learned Brother, Chinnappa Reddy, J. Given in A. S. No. 11 of 1967, whereby the learned Judge dismissed the defendants appeal with costs.
2. The material facts leading to this Letters Patent Appeal may briefly be stated. One Avati Bhoomaiah and the respondent in this Letters Patent Appeal, respectively claiming to be the adopted son and the widow of one Avati Abbu, filed O. S. No. 77 of 1962 in the Court of the Subordinate Judge Nizambad, for a declaration of their title to and for a permanent injunction restraining the defendants from interfering with their possession and enjoyment of the properties left by Avati Abbu. The defendants mainly resisted the suit on the ground that neither Bhoomaiah was the adopted son nor the respondent herein the widow of Avati Abbu. They further stated that they were in possession and enjoyment of the suit properties as the nearest heirs of the deceased. Avati Abbu.
3. The trial Court framed six issues and, after considering the evidence adduced by the parties in support of their respective versions, found that Avati Bhoomaiah was not the adopted son but the respondent herein was the widow of Avati Abbu and accordingly, dismissed the suit filed by Bhoomaiah but decreed the suit so far as it related to the respondent herein. Bhoomaiah whose claim of being the adopted son of Avati Abbu was negatived and his suit dismissed by the trial Court did not choose to prefer an appeal. The defendants however, preferred a first appeal, A. S. No, 11 of 1967, against the trial Court's judgment and decree in favour of the respondent herein., The first appeal came up for hearing before our learned Brother, Chinnappa Reddy. J.
4. Before our learned brother two contentions were raised by the appellants. The first was that the essential requisites of a valid custom were not established, and the second was that the marriage of the respondent herein with Avati Abbu was not proved by any satisfactory evidence.
5. It was also contended that the trial Court did not consider the evidence on record and, therefore, its judgment was very unsatisfactory. Our learned brother accepted the above contention but, instead of sending back the file to the trial Court for a consideration of the entire evidence on record himself went through the evidence with the assistance of the advocates appearing for the parties and then agreed with the finding of the trial Court that the respondent herein had satisfactorily established that she was legally and validly married to Abbu. In view of his finding the learned judge dismissed the defendant's appeal with costs. Hence this Letters Patent Appeal by the defendants.
6. The learned judge rightly addressed himself to the question as to whether the 2nd plaintiff in the suit (respondent in this Letters Patent Appeal) succeeded in establishing the existence of 'Udiki' form of marriage.
7. In his book on 'Castes and Tribes of the H. E. H. The Nizam's Dominion', the reputed Research Scholar Nawab Sirajul Hussain, regarding the custom of widow marriage amongst 'Munnor Kapu' stated that:-
'A widow may marry again but not her late husband's brother. The ritual in use at the marriage of a widow is simple and consists in presenting the widow with a new saree grass bangles and two rings and tying the Thali round her neck ............divorced women are allowed to marry again and the ceremony is the same as that of a widow's marriage.'
8. The Nawab Saheb, however, did not mention in his book the name of the form of marriage a widow or a divorcee in the Munnoor Kapu community may have.
9. In the plain the 2nd plaintiff did not mention that she was married to Avati Abbu in 'Udiki' form. She merely stated that she was the legally wedded wife of Abbu. Defendants in their written statement merely denied that the 2nd plaintiff was the legally wedded wife of Abbu. Since the 2nd plaintiff herself did not state in her plaint that she was married to Abbu in 'Udiki' form of marriage, naturally the defendants had no occasion to say either about the existence or non-existence of Udiki for of marriage amongst their community, or whether the 2nd plaintiff had performed all the necessary ceremonies of a valid 'Udiki' marriage. Even without a pleading or an issue in that behalf, the plaintiff's witness spoke to the fact that the 2nd plaintiff was married to Abbu in the Udiki form which consisted of presentation of new clothes to the bride by the Bridegroom, feeding of the guests and taking of the bride by the bridegroom. After referring to the above passage in 'Castes and Tribes in the H. E. H. The Nizam's Dominion' by Nawab Sirajul Hussain, the learned Judge stated that he had himself come across the expression 'Udiki' form of the marriage in several cases from the western districts of Telangana region and the Rayalaseema districts, where parties belonging to castes other than Brahmin. Vysya and Khatriya, claimed to have been married in Udiki form, whenever the bride happened to be a widow or a divorcee. Some times, it is also described as 'Cheerakattu' Marriage.
10. The contention of the learned Counsel. Miss. V. Lakshmi Devi for the appellant was that the finding of the learned Judge as to the existence of the custom of Udiki marriage amongst Munnoor Kapu was based on the personal knowledge of the judge and that, evidence on that question was only appreciated by him on the assumption that such a form of marriage existed in their community. If the learned judge had not been influenced by his personal knowledge the existence of such a form of marriage for the remarriage of a widow or a divorcee belonging to the Munnoor Kapu caste, his finding would have been different.
11. It appears to us that there is good deal of force in this argument. After considering the evidence of P. Ws.1. 3 and 6 and D. Ws. 1, 7 and 8, and Thurston's volumes on the 'Castes and Tribes of South India' our learned brother observed that:
'....................The ceremonies to be performed in connection with the marriages of the non-regenerate. Telugu Castes, more particularly of the Telangana Region, are not those prescribed by HINDU Law texts but rather those prescribed by custom. Its is well known that custom can override any text of Smriti Law and such custom which is in derogation of ordinary law must be proved to be ancient, certain and reasonable before it can receive Judicial recognition.'
After having said all that the learned Judge proceeded to say that:
'the rigour of the rule that a custom which modified ordinary law must be strictly proved is lost if we remember, what I was at great pains to point out earlier, that in the Telangana area and amongst the people of the regenerate Telugu castes, performance of rites by local customs and not the performance of the rites sanctioned by the Smrithi appeared to be the ordinary law.'
The learned Judge further observed that:
'We are not here concerned with any custom as such but with the adjuncts of a custom. I will make myself clear. We are not concerned with the custom of marriage itself because marriage as an institution was recognised ages ago, we are not concerned with the custom of marriage of widows because such custom undoubtedly and undisputedly exists and at any rate from 1859 onwards statute, permitted such marriages; we are merely concerned with the ceremonies attended on the marriage of a widow. What we have to enquire is not whether the custom of marriage of a widow is established, but what are the ceremonies to be performed at the time of such a marriage. Since marriages of maids and widows amongst the non-regenerate classes are made not by performing ceremonies prescribed by Smiriti texts but by performing ceremonies prescribed by custom, the enquiry should be what are the ceremonies to be performed and not whether these ceremonies have been proved to be ancient continuous, etc. Evidence of caste people that marriages are celebrated in such and such fashion may well suffice. Proof of few instances may quite satisfy. As already pointed out by me, the evidence of P. Ws. 3 and 6 and D. Ws. 7 and 8 establishes that the widows of the Munnoor Kapu caste are married in the Udiki form by the performance of a few simple ceremonies viz., the giving of new clothes to the bride, the feeding of guests and the taking of the bride by the bridegroom.'
12. Before we comment on the observations of the learned Judge, we would like to refer to a few decided cases.
13. In Deivanai Achi v. Chidambaram Chettiar : AIR1954Mad657 .
Satyanarayana Rao J. Speaking for the Court, in an exhaustive and elaborate judgment, held that:
'........................The assumption that the Hindu Law texts apply only to a virgin Kanya 'virgo intacta' is not correct. The rule that nuptial texts should be confined to virgins was not an imperative rule of law but only a moral precept. For remarriage of widows and marriage of those who were not virgins at the time of marriage, such as those who had already a son or who were pregnant at the time of marriage, was expressly permitted, though disapproved, and no other form of marriage is provided for non virgins.
Section 6 of the Hindu widows' remarriage Act, 1856 which is enacted to obviate any doubt in this respect is permissive in that it recognises the validity of applying the ceremonies and engagements applicable to unmarried woman under Hindu Law also to the remarriage of widows. What is more, words, that is Mantras, may also be repeated and it is not open to anybody to question the appropriateness of the applicability of the forms and procedure and the Mantras in the case of remarriage of widows. The fact that a particular rite or marriage was not prescribed by the statute is of no consequence. If the parties are governed by Hindu Law, in order to bring about a valid marriage even in the case of a widow, they must either observe the formalities and the ceremonies requisite for a valid marriage under Hindu Law, or at any rate such a form as caste, sub caste or family govern their marriages in order to bring about and establish a valid marriage. If they do not choose, however, to conform to any of the forms recognised or permitted by Hindu Law, it is open to them to have recourse to the statute, for example. Special Marriage Act, 1872 and get the marriage registered.....................'
Regarding the custom, the learned Judge observed that;-
'The form of marriage prescribed by the 'Sutras' is subject to modification by custom or usage. If the community to which of the parties belong has modified by long established usage the ceremonies prescribed by the Shastras and has adopted new forms and new conventions, they must be recognised by the Courts. But the essential requisite for recognition of such custom is that it must be sufficiently ancient and definite, and the members of the caste or sub caste or family must recognise it as obligatory. It should not be left to the will of the caste or sub caste to alter it at their will and pleasure, for the essence of custom or usage is that it is an ancient one recognised and adopted by the caste and has certainly about it.'
Regarding the transcendency of the custom modifying the Hindu Law, the learned Judge observed that:
'As custom is 'Transcendent Law' according to the sages, it is open to establish a custom modifying the ordinary Hindu Law. I. E. A custom having the force of law. The essentials of a valid custom, whether it is a caste custom or a sub caste custom or custom of a particular locality or of a family, are that it must be ancient, certain and reasonable and it cannot be enlarged beyond the usage by parity of reason since it is the usage that makes the law and not the reason of the thing (AIR 1853 SC 201 relied upon).'
14. In Chinna Gowd v. Sayamma, (1970) 1 AP LJ (Short notes) P. 22 to the judgment of which both of us were parties, we have held that:
'.................A custom, in order to acquire the force of law, should be ancient certain and reasonable such a custom must be provided by clear and unambiguous evidence and the Courts must be satisfied that such a custom has been in existence from antiquity and has been continuously followed from ancient times. It would not be satisfactory proof of custom if only a few instances of a comparatively recent date are proved by the party.'
15. In Kochan Kani Kunjuraman Kani v. Matheven Kani Sankaran Kani. : AIR1971SC1398 His Lordship Hegde. J. Speaking for the Supreme Court laid down that:
'It is well established that in the matter of custom a party has to plead in specific terms as to what is the custom that he is relying on and he must prove the custom pleaded by him. He cannot be permitted to prove a custom not pleaded by him. The Judicial Committee observed in Abdul Hussain Khan v. Bibi Sona Dero, (45 1nd App 10) = (AIR 1917 PC 181). 'It is therefore incumbent upon the plaintiff to allege and prove the custom on which he relies.' That was also the view taken in Thakur Gokallchand v. Parvin Kumari. (1952) SCR 825 = (AIR 1952 SC 231). The reason for this rule is obvious. Anybody who puts forward a custom must prove by satisfactory evidence the existence of the custom pleaded, its continuity and the consistency with which it was observed; A party against whom a custom is pleaded must have notice as to what case he has to meet...........
16. From the aforesaid decided cases, it follows that the ceremonies and engagements applicable to the marriage of a maiden or a virgo intacta under the Shastraic Hindu Law are applicable to the remarriage of a widow or a divorcee. Therefore, the remarriage of a widow can be performed according to strict Shastraic Hindu Law ceremonies which are necessary for a valid marriage according to Shastric Hindu Law are: the giving of the bride in the midst of festivities to the bridegroom (Kanyadhana, Sampradhana): the dextrarum junctio (Panigrahana)the Vedic Mantras accompanying these ceremonies (Paningrahana ) the Vedic Mantras accompanying these ceremonies ( Paningrahanaikamantra ) the sacrifice into fire and three courses round the nuptial fire, the seven steps together of the young couple ( saptapadi ) and then taking the bride home ( vivaha ), after which the ceremony is named.
The form of marriage prescribed by ' Grihyasutras ' is subject to notification by custom or usage. If the community to which the parties belong, has modified, by long established usage, the ceremonies prescribed by Shastras for a marriage and has adopted new forms and new conventions, they must be recognised by the courts. But the essential requisite for a custom or a usage is that it must be ancient, definite and reasonable, and such a custom or usage must be proved in accordance with law, i.e., it must be pleaded and then proved by evidence. If a custom is proved according to law, then it is ' transcendent law ' and overrides the ordinary Hindu Law.
18. Thus it is obvious that the marriage of a widow or of a divorcee cannot only to take place in accordance with the strict Shastraic ceremonies that are necessary for a valid marriage of a Hindu Maiden, but also according to the modified form of those ceremonies which are recognised by the community as ancient and definite usages. However, one thing is clear that, whether it is the marriage of a maiden or of a widow, or of a divorcee, all the formalities and ceremonies requisite for a valid marriage under the strict Hindu Law, or under their modified form must be observed.
19. When the second plaintiff stated in the plaint that she was the legally wedded wife of Abbu, she did not say in the plaint in which form of marriage she was married to Abbu. Whether according to the strict Shastric Hindu Law, or in accordance with any of its modified form. If her marriage was performed in accordance with any modified form, it must be pleaded and proved as a custom. All the ceremonies, either according to the original shastras or in accordance with their modified form, which have gained the status of a valid and binding custom, must be proved to have been performed. Neither any authority not Mr. Thurston in his book on ' Castes and Tribes of South India ' spoke of Udiki form of marriage.
20. Even Nawab Sirajul Hassan in his book, on ' Castes and Tribes of H. E. H.the Nizam's Dominion' has stated about the prevalence of a custom of remarriage of widow of divorcees in the Munnoor Kapu Community but the ceremonies that are attendant upon such a marriage, according to him, are (i )presentation of a new saree to the bride and (ii) presentation of glass bangles and the toe rings and the tying of a Thali round her neck.
21. Any marriage under Hindu Law will consist of two aspects. One is religious and the other is secular. The presentation of a new saree may be secular, but the presentation of glass bangles and the toe rings and the tying of Thali round the neck of a wiudow or a divorcee, may be called religious aspect because those three ceremonies are the essantial adjuncts of the status of wifehood as against widowhood or unmarried ( whether before marriage or after divorce ) status. None of the witness who spoke in proof of the marriage of the 2nd plaintiff, did speak of the religious aspects of the ceremonies attended on the marriage of the 2nd plaintiff. I.e., presentation of glass bangles and toe rings and tying of the Thali.
22. All this bad happened because neither the custom of Udiki was pleaded in the plaint by the 2nd plaintiff, nor about the valid requisites and essential ceremonies of such an Udiki form of marriage. If the 2nd plaintiff in the plaint had mentioned about the existence of a custom of Udiki marriage for widows amongst Munnoor Kapu community and its essential requisite ceremonies, then certainly, the defendants would have known what case they had to meet and what evidence they had to lead against the existence of a custom of Udiki marriage, or regarding the essential ceremonies of such Udiki marriage. It is now well established that, in the absence of a pleading no amount of evidence can be looked into.
23. The true scope of the rule that no amount of evidence can be looked into upon a plea which has never been put forward, which was pronounced by the Privy Council in Siddik Mahomed Shah v. Mt. Saran, AIR 1930 PC 57 (1) was explained by Venkatarama Ayyar, J. In Nagubai Ammal v. B. Shama Rao, : 1SCR451 . This is what His Lordship, Venkatarama Ayyar, J. had said in that case :
'The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no applications to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto.'
24. In the instant case, the 2nd plaintiff had not pleaded that she had been married to Abbu in the Udiki form of marriage and that all the requisite ceremonies essential for the performance of marriage in the Udiki form, had been performed. In the absence of such pleading, we are unable to agree with the learned Counsel for the respondent that the defendants went to trial, on the question of legality of the marriage, with full knowledge of the case they had to meet. Therefore, this is not a case where the parties, with full knowledge of the respective cases they had to meet, had gone to trial on the issue of the existence or otherwise of the custom of Udiki marriage and as to the requisite ceremonies of that Udiki marriage. A careful reading of the judgment of our learned brother indicates that he had presumed the existence of an Udiki form of marriage amongst Munnoor Kapu community for the widows. No authority has been cited for presuming such a custom and for absolving the plaintiff from proving the necessary requisites of a valid custom so as to make it binding on the parties.
25. There is also no justification, in our opinion, for making the observation that ' the rigour of the rule that a custom which modified ordinary law must be strictly proved, is lost if we remember what I was at great pains to point out earlier, that in the Telangana area and amongst the people of the regenerate Telugu castes, performance of rites by local customs and not the performance of the rites sanctioned by the Smiriti appeared to be the ordinary law. There is no basis, in our opinion, for this observation. When a custom has to be established by clear and unambiguous evidence that it was in existence from antiquity and that it has been continuously followed from ancient times.
26. As there was no pleading either with regard to the custom of Udiki, or in regard to the essential requirements of an Udiki marriage, or their admission or denial by the defendants in their written statement, the trial Court did not frame any issue. We are, therefore, satisfied in this case that the parties did not go to trial with full knowledge of the custom of Udiki or in regard to the valid requisites of such a custom.
27. It is also now well established that evidence let in on issues on which the parties actually went on trial, should not be made the foundation for decision of another and different issue which was not present in the minds of the parties and on which they had no opportunity of adducing evidence. ( See : 1SCR451 ).
28. Since no authority has been cited by our learned brother for relaxing the rigour of the rule that a Custom which modified ordinary law must be strictly proved we are the opinion that the above said observation has been made on the basis of his personal knowledge of the existence of that particular form of marriage amongst Munnoor Kapu community.
29. We accordingly, set aside the judgment of the trial Court and also of the first appellate Court and remit the case to the trial Court with a direction that it should take the case on its file once again, allow the 2nd plaintiff ( respondent herein ) to amend the plaint so as to base her case on the custom of Udiki marriage and also plead to its requisite formalities or ceremonies. The trial Court shall also afford reasonable opportunity for the defendants to amend their written statement suitably. The trial Court shall then frame appropriate issue or issues in that behalf and allow a reasonable opportunity to both the parties to adduce additional evidence in support of their respective amended versions of the pleadings, and consider the same and dispose of the case afresh according to law.
30. Before finally disposing of the case, the trial Court shall also consider whether the doctrine of factum valet will be applicable to a case of this type, if its finding is that certain formalities which are necessary for an Udiki marriage have not been performed by the 2nd plaintiff, in this connection we wish to invite the attention of the trial Court to the observations of the Madras High Court in : AIR1954Mad657 that :-
'The doctrine of factum valet enables to cure the violation of a directory provision or a mere matter of form but does not cure the violation of the fundamental principles or the essence of the transaction. If there are certain essential ceremonies, which are necessary for a marriage, the non observance of those ceremonies or religious rights cannot be overlooked by applying the doctrine of factum valet. The doctrine applies only where there is no initial want of authority or where there is no positive interdiction. If, according to Manu's text, certain essential rites are necessary for a valid marriage, unless it is shown by custom that those ceremonies have been modified, it is imperative upon the parties concerned to observe the formalities laid down by law. Non observance of those rites cannot be cured by applying the doctrine of factum valet. There are very many ceremonies connected with the marriage, which are more or less non obligatory or directory. If these ceremonies are not performed at the marriage, the omission may be cured by the doctrine of factum valet. '
31. In Shivalingaiah v. Chowdamma, AIR 1956 Mys 17 a Division Bench of the Mysore High Court observed that :
'The essence of the requirement for the validity of the second marriage or Kudike as it is called is not so much the existence of the document as the fact of the former husband renouncing the conjugal rights over the woman and the observance of the social or religious acts to create the fresh alliance of the woman with another man as wife and husband. Marriages are not nullified and considered invalid because of failure to conform to all the formalities in vogue or of the qualifications prescribed. The doctrine of factum valet has been applied to overcome defects of an unessential nature. '
32. We accordingly, set aside the judgments of both the first appellate Court and the trial Court and remand the case back to the trial Court with the above directions. Costs shall abide the ultimate result of the suit. Since the matter is remanded the court-fee paid on this appeal shall be refunded to the appellant.
33. Ordered accordingly.