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Malakayya and anr. Vs. Avait Bhommayya and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No.11 of 1967
Judge
Reported inAIR1971AP270
ActsHindu Law
AppellantMalakayya and anr.
RespondentAvait Bhommayya and anr.
Appellant AdvocateV. Lakshmi Devi, Adv. for ;K. Mahipathi Rao, Adv.
Respondent AdvocateK. Pratapreddy, Adv.
Excerpt:
.....customs followed - ceremony of 'satpadi' and invocation not performed - well established custom can override ant text in 'smriti' law - customs which are contrary to general law must be proved by to be ancient, certain and reasonable before it can receive judicial recognition - in communities to which plaintiff no. 2 belonged local custom was ordinary law and not 'smriti' law - evidence adduced established existence of such custom - held, performance of marriage as per 'udiki' custom valid. - - it is of course well known that custom can override any text is smriti law and such custom, which is in derogation of the ordinary law, must be proved to be ancient, certain and reasonable before it can receive judicial recognition. it is well know that the strictness of the rules of..........village state that 'udiki' marriage were premissible in the munnoor kapu case.p .w. 3 stated that abbu married butchamma according to the 'udiki' custom. he described the custom as follows;- 'in 'udiki' new saree and clothes are given and caste men are fed, then the married woman is taken by her husband', p.w. 6 the 2nd plaintiff, stated that she was married to abbu in the 'udiki' form. she described the 'udiki' form of marriage as follows:- 'to perform 'udiki' in our caste. new clothes are given to the bride and then guests are fed and then husband takes the bride.' in cross-examination she also stated that the 2nd defendant himself stated that the 2nd defendant himself had a 'udiki' wife and that there were many in her caste who had married 'udiki'' wives. d.w. 1 who claimed that he.....
Judgment:

1. The defendants in O.S. No.77 of 1967 on the file of the court of the Subordinate Judge , Nizamabad are the appellants in this appeal. The respondents, two in number filed the suit out of the which the appeal arises for declaration of their title to the suit property and for an injunction. The 1st respondent claimed that he was the adopted son and the 2nd respondent claimed that she was the widow of late Abbu, Abbu died on 19-11-1962 possessed of the suit property. According to the allegations in the plaint the 2 nd respondent claimed that she was the widow of late abbu. Abbu died on 19-11-1962 possessed of the suit property. According to the allegations in the palint the 2nd plaintiff was the wife of Abbu and the 1st plaintiff had been adopted about six months prior to the date of the adoption deed which was execuited by Abbu and the plaintiffs. therefore were forced to institute the suit. The defendants claimed to be the sons of Abbu's father's brother. They denied that the 2nd plaintiff was the wife of Abbu though they stated that she used to visit the deceased now and then. They also denied the adoption of the 1st plaintiff by Abbu.

The parties went to trial on two issues, whether the 1st plaintiff was the adopted son of late Abbu and whether the 2nd plaintiff was the legally wedded wife of late Abbu. On the second question, the plaint did not mention the form of marriage which the 2nd plaintiff and Abbu had gone through. It was merely stated in the plaint that the 2nd plaintiff was legally wedded wife of Abbu., When the defendants denied that the 2nd plaintiff was the legally weeded wife of Abbu it became necessary for her to prove that she was legally married to Abbu. She adduced evidence and according to her case as spoken to by herself and her witnesses at the trial she was originally married to one Papanna and had three children by him. After the death of Papanna she was given in marriage to Abbu. The marriage was performed, according to the caste custo, in the 'Udiki' form. According to her and her witness the 'Udiki' form of marriage consisted to presented of new clothers to the bride, feedings of the guests and taking of the bride by the bridegroom.

The defendants adduced evidence denying that there was any such customary marriage know as 'Udiki' from of marriage. They also denied that the 2nd plaintiff was married to the late Abbu. They further adduced evidence to established that after the death of her first husband the 2nd plaintiff was married to one Poshetti who was alive the therefore the 2nd plaintiff could not legally marry Abbu. The defendants also adduced evidence to the effect that the 2nd plaintiff was kept as the mistress of Narayanareddy, the Police patel of the village.

2. The learned Subordinate Judge while holding that the deed of adoption was executed by the late Abbu, nevertheless found that it was not established that Abbu had adopted the 1st plaintiff. This finding is most unsatisfactory but the 1st plaintiff has not preferred any appeal though the suit filed by him was dismissed. The learned Subordinate Judge, however found that the of marriage of the 2nd plaintiff with Abbu was established. He therefore decreed to suit in her favour. In this appeal Miss Lakshmidevi, learned counsel for the appellants argued firstly that the essential requisities of a custom had not been established and secondly that the marriage of the 2nd plaintiff with Abbu had not been proved by satisfactory evidence. She urged that the learned Subordinate Judge did not discuss the relevant evidence and that the judgment was most unsatisfactory. I agree with Mis Laxmidevi that the judgment of the learned Subordinate Judge has not discussed the evidence at all. There a hardly any reference to the large volue of evidence adduced by the defendants. I have therefore gone through the entire evidence with the assistance of Miss Lakshmidevi. learned counsel for the appellants and Sri Pratareddy, learned counsel for the respondent.

3. The first question for consideration is whether the 2nd plaintiff has succeeded is establishing the existence of the 'Udiki' from of marriage. The parties are Munnoor Kapus. Nawab Sirajul Hussian in his 'Castes and Tribes of H.E. H, The Nizam's Dominous; refers to the customs widow marriage amongst Munnoor Kapus and states; '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, glass bengles and toe-rings and tying the 'Thali' round her neck.: He also states later Divorced women are money is the same as that of a widow's marriage. The Nawab does not mention to name of the from of marriage of a widow or a divorcs but the witnesses in the present case call it the 'Udiki' from of marriage.

I may here that I have myself come across the expression 'Udiki' form of marriage in several cases coming form the western districts of the Telangana region and the Raylaseema district, where parties belonging to castes other than Brahmi,, Vysya and Kshatriya claimed to have been married in the 'Udiki form whenever the birdsd happened to be a siwdow or a divorcee Sometimess it was also described as the 'Cheerakattu marriage. In the present case, P.W. 1 the brother of the 2nd plaintiff stated that he performed the with Abbu. He denied the suggestion that there was not practice of 'Udiki' marriage. He stated that the 2nd plaintiff was presented with new clothes on the occasion of the 'Udiki' marriage and next day show was taken away by her husband to his house. P.W. 2 the Asaldar police patel of Kurnappali village state that 'Udiki' marriage were premissible in the Munnoor Kapu case.

P .W. 3 stated that Abbu married Butchamma according to the 'Udiki' custom. He described the custom as follows;- 'In 'Udiki' new saree and clothes are given and caste men are fed, then the married woman is taken by her husband', P.W. 6 the 2nd plaintiff, stated that she was married to Abbu in the 'Udiki' form. She described the 'Udiki' form of marriage as follows:- 'To perform 'Udiki' in our caste. new clothes are given to the bride and then guests are fed and then husband takes the bride.' In cross-examination she also stated that the 2nd defendant himself stated that the 2nd defendant himself had a 'Udiki' wife and that there were many in her caste who had married 'Udiki'' wives. D.W. 1 who claimed that he was the second husband of the 2nd plaintiff stated even In chief-examination that amongst Munnoor Kapus 'Udiki' from the marriage was performed. He claimed that he himself was married to the 2nd plaintiff in the 'Udiki' form of marriage.

In cross-examination he admitted that he had another 'Udiki' wife in Penta village. D.W.2 caste man of the parties was examined by the defendants to prove that Abbu never married the 2nd plaintiff. He did not, however speak of the non-existence of the 'Udiki' from of marriage. It was suggested to form of marriage . It was suggested to him in crosss-examination that the wives of the 2nd defendant were 'Udiki' wives and not 'Legnam' wives but he denied and not 'Lagnam. wives, but he denied the suggestion D. W. 4 another caste man of the parties stetted that there was no custom of 'Udiki' marriage in his caste. D.W. 6 a brother of the defendant stated that there was no custom of 'Udiki' marriage in his caste. D.W.7 first stated that there was no custom of 'Udiki' marriage in his caste, but later added that Poshetti married Butchamma according to 'Udiki' manner. He stated; . 'The second marriage of widower or widow is called 'Udiki' otherwise or marriage will be called 'Lagna,'' He also stated that in 'Udiki' marriage new clothes should be given to the bride and the guests would be fed. He further added 'children born from the 'Udiki' wife will have a share in the property.'

D.W. 8 similarly stated in the beginning that he was not aware of the custom of 'Udiki' marriage, but later stated that Poshetti married Butchamma according to 'Udiki' custom. In cross-examination he stated 'Udiki' marriage is possible if one of the two parties solves his wife or her husband. New clothers are given to the bride. Bride and bridegroom both are presented with new clothes. Then feat is arranged for the guestes who are invited.'

4. It is clear from the evidence, particularly of P.Ws. 3 and 6 and D.Ws. 1, 7 and 8 that widows and divorced women of the Munnur Kapucaste are married by the perfromance of a few simple ceremonies, even as mentioned in Nawab Sirajul Hussian's traties. It maybe mentioned that ceremonies performed when a maid of the Mannur Kapu caste is married are different and very elaborate. They are very much the same as the ceremonies performed when maids of other Telugu caste (Non-regenerate) of the Telangana area are married even as the simple ceremonies connected with marriages of widows and divorced women are particualrly the same amongst all the nonregenerate caste. The ceremonies are fully described in the Nawab's treaties under each caste, 'Chakala' 'Golla; 'Goundla' Kapu' 'Kummara' 'Managala' 'Munur Kapu' 'Muthrasi' 'Padma sale' 'Sale' 'Telega' 'Uppara' 'Velama' etc.

What is striking about the ceremonies is that whether the bride is a maid or widow, the one ceremony considered essential by Texts o Hindu Law 'Saptapadi' is not performed at all. So too the ceremony of invocation before the sacred fire. A reference to Thurstor's volumes on the Castes and Tribes of South India, also reveals the same striking feature. The position therefore appears to be that the ceremonies to be performed in connection with marriage of the non-regenerate Telugu caste, more particularly of the Telengana Region, are particularly of the Telegana Region, are not those prescribed by Hindu Law Texts but rather those prescribed by custom. It is of course well known that custom can override any text is Smriti law and such custom, which is in derogation of the ordinary law, must be proved to be ancient, certain and reasonable before it can receive judicial recognition. The rigour of the rule that a custom which modifies ordinary law must be strictly proved is lost if we remember, what I was at great pains to point out earlier. that it the Telugu area and amongst the people of the non-regenerate telugu castes performance of rites sanctioned by local custom and not the performance of the rites sanctioned by the Smritis appears to be the ordinary law.

It is well know that the strictness of the rules of Hindu Smritis is related by writers who recognised the validity of local or family customs (Vide Mayne's Hindu Law, 11th Edition Paragraph 118), It is also well know that the rules among Sudras of Southern Indian are not as strict as among Brahmins. Further 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 widow 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 attendant 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 perfroming ceremonies prescribed by Smriti 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, continuos etc. Evidence of caste people that marriages are celebrated in such and such a fashion may well suffice. Proof of a few instances may quite satisfy. As already pointed out my me the evidence of P.Ws. 3 and 6 and D.Ws. 7 and 8 establishes that widows of the Munnur 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 feedings of guests and the taking of the bride by the bridegroom.

5-6. The next question is whether it has been proved that Butchamma, the 2nd plaintiff was married to Abbu. (His Lordship discussed the evidence in Paras 5 and 6 and observed): On a review of the entire evidence I hold that the 2nd plaintiff has succeeded in establishing that she was legally married to late Abbu. The appeal is therefore dismissed with costs.

7. Appeal dismissed.


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