S.S. Dhavan, J.
1. This is a revision under Section 25 of the Provincial Small Cause Courts Act by Sbrimati Kasturi Devi against the order of the Judge Small Cause Court. Rampur, dismissing her suit against her husband Chiranji Lal for recovery of arrears of maintenance. She alleged in her suit that she was the lawfully wedded wife of Chiranji Lal having been married to him more than 20 years ago. The marriage was intercaste the husband being a Brahman and the wife a Thakur. At the time of this marriage Kasturi Devi was a widow. They lived and cohabited for 20 years but in 1954 the defendant Chiranji Lal took another wife and then turned the plaintiff out of his house. He even refused to maintain her (khana kapra dena bhi band kar diya) and she was compelled to make an application for maintenance against him under the Cr. P. C.
On 29-4-1954, there was a gathering of the village Panchayat resulting in a settlement and a written agreement under which the husband Chiranjilal agreed to pay a maintenance allowance of Rs. 30/- per month to her. But he did not honour the agreement and did not pay her a single pie. Whenever she made a demand he gave an evasive answer and ultimately refused point-blank to pay her anything. She was thus forced to file a suit to enforce the agreement and claim arrears of maintenance due to her. The defendant Chiranjilal contested the suit and denied that the plaintiff was his wife or that he had ever married her. His case was that she was engaged by him as a maid servant but subsequently turned her out when he discovered that she was stealing his things.
He admitted that the plaintiff had made an application for maintenance against him in the criminal court but alleged that the application was baseless and had been made at the instigation of a man called Nathhoo Singh, Chiranji Lal admitted having signed the agreement, but explained that he had done it under coercion. He alleged that the Sub-Inspector in charge of Police Station Tanda tried to persuade him to provide accommodation and maintenance for Kasturi Devi. On his refusal, he was taken to the police station on the night of 28th April 1954 and detained there. He was threatened and told that if he did not agree to provide accommodation and maintenance for the plaintiff he would be implicated in a criminal case. Faced with this threat, he had no option but to sign the document. This in brief was his explanation for having signed the agreement.
2. The learned Judge after hearing the evidence of the parties, disbelieved the defendants' allegation that he had signed the agreement for maintenance under coercion, but he dismissed the suit on two grounds. First, he held that a marriage between a Brahman husband and a Thakur wife is invalid being an inter-caste marriage. He took the view that 'parties to a Hindu marriage must belong to the same caste, a marriage between persons who do not belong to the same caste, is invalid unless it is sanctioned by custom.' Secondly, he held that the marriage ceremony alleged by the plaintiff had not been properly solemnised. To quote his own words 'There is no proof that Saptapadi, that is, taking of seven steps by the bride end the bridegroom jointly took place before the pyre ............. Such a marriage cannot be called a valid marriage and the plaintiff cannot be heldto be the legally wedded wife of the defendant'. Accordingly he dismissed the plaintiffs' suit for maintenance with costs.
3. Aggrieved by that decision the plaintiff Kasturn Devi has come to this Court in revision.
4. Mr. S.B.L. Gaur on behalf of the respondent raised a preliminary objection that the suit was not maintainable in a court of Small Causes. He relied on the second schedule to the Provincial Small Cause Courts Act which contains a list of suits excepted from the cognizance of a Court of Small Causes. Entry No. 38 of this list relates to 'a suit relating to maintenance''. Mr. Gaur contended that the entire proceedings before the learned Judge were without jurisdiction and, therefore, there is no question of this Court passing a decree in revision which the trial court itself could not have passed.
This objection was advanced by Mr. Gaur on ignorance of the fact that item No. 38 of the aforesaid list was amended by the State Legislature by U. P. Act XXIV of 1954, and after this amendment, runs thus
38. 'A suit relating to maintenance but not being a suit for recovery of arrears of maintenance based upon a decree or a written agreement.'
The effect of this amendment appears to be this . If a wife files a suit to establish her claim for maintenance against the husband, the suit would not lie in a Court of Small Causes. But if there is a pre-existing agreement between the husband and the wife providing for maintenance, or if the wife obtained a decree for maintenance, she can file a suit for recovery of arrears of maintenance on the basis of such a decree or written agreement. In the present case, the plaintiff has filed a suit for the recovery of arrears of maintenance due to her under a written agreement.
In her plaint she expressly stated that there was a written agreement and that the defendant had failed to honour it, and, therefore, she was being compelled to file a suit to enforce her claim. Such a suit would life in the Small Cause Court. The objection is therefore overruled, and I hold that the learned Judge had jurisdiction to hear the suit and this revision is maintainable.
5. Mr. Gour made somewhat a half-hearted attempt to prove that the document under which 'the defendant agreed to maintain the plaintiff does not amount to an agreement under the Indian Contract Act. He endeavoured to show that the agreement is without consideration. This objection ignores the terms of the agreement itself. It contains a statement by the defendant Chiranjilal that Kasturi Devi was his first wife, that she had filed an application for maintenance against him before the Court of Collector (Presumably meaning the District Magistrate) and that the parties had compromised their dispute. The agreement contains the terms of this compromise.
The husband agreed to provide a room for the residence of the plaintiff and also to pay her a sum of Rs. 30/- per mensem in lieu of maintenance and the wife had withdrawn her application before the District Magistrate. It is therefore clear from the terms of the agreement, that in consideration of the husband's promise, the wife dropped the proceedings which were pending against him. It is a well known principle of the law of contract that an agreement compromising a dispute is binding on the parties.
If the wife agreed to drop her application for maintenance against the husband which was pending before the Magistrate in consideration of his promise to pay her a maintenance allowance o Rs. 30/- per month, this is a contract enforceable by law.
6. I shall now consider the plaintiffs' case in revision on merits. Learned counsel for the plaintiff-applicant Mr. Gayanendra Kumar, who argued this case with ability and with commendable brevity, impugned the legality of the decision of the trial court on two grounds. First, he argued that its finding that the marriage of the plaintiff with Chiranjilal was invalid, being an inter-caste marriage, is erroneous. Secondly, he urged that his finding that this marriage had not been properly solemnised and was therefore invalid, is also wrong in law.
7. In view of the unsatisfactory approach of the learned Judge, I permitted the counsel for both parties to argue their respective cases at length and perused the entire evidence which was led before the trial court. I am of opinion that the learned Judge has taken a view which is completely erroneous and this revision must be allowed.
8. The learned Judge took the view that a marriage between a Brahman husband and a Thakur wife is invalid because it is intercaste, whereas 'parties to a Hindu marriage must belong to the same caste.'
9. The learned Judge completely overlookedtwo statutes which were passed recently by the Central legislature which validated all inter-caste marriages with retrospective effect. The first was the Hindu Marriages Validity Act, 1949 which laid down that no marriage between Hindus would be deemed to be invalid or 'ever to have been invalid by reason only of the fact that the parties thereto belong to different religions, caste, sub-castes or sex.' The second is the Hindu Marriage Act No. 25 of 1955 which was passed by Parliament. Section 29(1) of this Act provides that' 'a marriage solemnized between Hindus before commencement of this Act which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties 'thereto belong to the same Cotra or Pravara or belong to different religion, castes or sub-divisions of the same caste,' Section 4 expressly provides that any text, rule or interpretation of Hindu Law or any custom or usage of Hindu Law shall cease to have effect in any matter for which provision is made in the Act. Thus Section 29 had the effect of 'repealing', if I may use that word, any principle or custom of Hindu Law under which inter-caste marriages were regarded as invalid.
10. It was conceded by Mr. S.B.L. Gaur, learned counsel for the respondent, that if Section 29 applies to the plaintiffs' marriage with Chiranji Lal, the marriage would not be invalid. He, however, argued that the word used in Section 29 is 'marriage' which impliedly excludes re-marriage and in any case excludes a remarriage of a widow, if it is out of caste. I see no warrant for putting such a restricted interpretation on the word 'marriage' in the section. The whole policy of the Hindu Marriage Act. 1955 is against this view. It provides for divorce between the parties in certain cases and enables a divorced Hindu wife to marry again. It also validates inter-caste marriages.
But if the word 'marriage' in Section 29 does not include 're-marriage', the result would be that a Hindu woman can marry out of caste but if she is widowed or divorced and wants to re-marry, she must marry within caste. The legislature could not have intended to achieve the absurd result that a Hindu can marry out of caste once only in a life time but that his or her second marriage must be within caste. This would be strange way to break the shackles of caste -- which was the purpose of Section 29. In my opinion, the word 'marriage' does not make any distinction between the first marriage or any subsequent marriage of any Hindu and includes re-marriage.
11. In view of the Hindu Marriage Act of 1955 it is not necessary for me to discuss in detail Whether the view of the learned Judge that inter-caste marriages were invalid under the Hindu Law is wrong. But it would not be out of place to point out that even before the passing of this Act, Hindu Law recognised the institution known as anuloma marriage which was sanctioned by the Smritis. According to the Smritis it is open to a high caste male to marry a lower caste female. Such a marriage was known as anuloma and a son born of it was legitimate and entitled to his share of the inheritance which, however, was less than that of a son born of a regular marriage -- that is to say, a marriage in which the parties belong to the same caste. Several High Courts in India have upheld anuloma marriage as valid.
The marriage of Vaishya male with a Sudra female was declared valid by the Bombay High Court in Bai Gulab v. Jivanlal Harilal, ILR 46 Bom 671 : (AIR 1922 Bom 32), as also a marriage between a Brahman male and a Sudra female. The Calcutta, the Madras and the Assam High Courts have taken the same view. There is, however, a decision of this Court which was not cited at the bar but has to be considered as it held that anuloma marriages are invalid in the territories which were then known as the United Provinces. In Padam Kumari v. Suraj Kumari, ILR 28 All 458, the claim of a Chhatri widow of a Brahman husband was rejected on the ground that a marriage between a Brahmin and Chhatri was not a lawful marriage.
The learned Judges who decided this case (Burkitt and Aikman, JJ.) gave no reason for their view beyond saying, 'whatever may have been the case in ancient times, as shown in the old text books, J have no hesitation in saying that at the present day marriage between a Brahman and a Chhatri is not a lawful marriage in this Province and that the issue of such a marriage is not legitimate.' (Burkitt, J.) 'Whatever may have been the case in ancient times, and whatever may be the law in other parts of India I think there can be no doubt that in these provinces there cannot in the present day be a lawful marriage between a Brahman and a member of a different caste.' (Aikman, J.).
12. With deep respect to both these English Judges, they were guided entirely by the fact that in this part of the country, at the time when that case was decided, inter-caste marriages did not take place. But the mere fact that the people in a particular part of the country have not availed of the institution of anuloma marriage would not invalidate any anuloma marriage if and when it does take place. The going into disuse of anuloma marriages in a part of India cannot have the effect of repealing an express provision in the Codes or Smritis validating such marriages.
It is one thing to say that a positive custom deviating from the ancient texts prevails over the texts; but quite another thing to hold that the absence of anuloma marriages in a particular localityis a good ground for holding that such marriages are prohibited by Hindu Law.
13. The Madras High Court in Subbaramayya v. Venkata Subbamma, ILR 1941 Mad 989: (AIR 1941 Mad 513), held that a marriage between a man of a superior caste and a woman of an inferior caste, known in Hindu Law an anuloma marriage, though recognised by the Smriti writers as being in existence in their times, was condemned by them and that this form of marriage became obsolete centuries ago and such a marriage, if performed at the present day, is invalid except where there is a custom or enactment to the contrary.' The learned Judges (Pandrang Row and Sornayya, JJ.) had to consider the validity of a marriage between a Brahman husband and a Sudra wife. But in the present case both the parties are Dwija or twice-born.
The learned Judges in the Madras case conceded that all the ancient Smriti writers had held that anuloma marriages were valid though they disapproved of them. But the commentators (Nibandha-kara) prohibited these marriages altogether as un-suited for the Kali age. Relying on the opinions or observations of these commentators, the learned Judges took the view that Hindu Law, as applicable in the modern age, prohibits anuloma marriages. With very deep respect, the learned Judges did not appreciate the distinction between a law giver and a commentator. A Code enunciated by the former has the force of law. It was the equivalent in ancient times of a statute in the modern age but the opinion of a commentator, though of great value in the elucidation of the Code, cannot be permitted to override the law itself.
If I may be permitted to use modern terminology, whereas, a law giver had the power to legislate, a commentator could only explain or elucidate the existing law, but could not arrogate to himself the status or functions of a law giver. As held by the Privy Council in Balwant Rao v. Baji Rao, AIR 1921 PC 59, '............It must always be remembered that the commentaries are only commentaries. They do not enact; they explain and are evidence of the congeries of customs which form the law'. This view was adopted by a Division Bench of this Court in Kanhiya Lal v. Ashraf Khan, AIR 1924 All 355. The learned Judges of the Madras High Court based their decision entirely on the opinions of commentators who wrote in comparatively recent times.
14. The Madras Judges relied on an observation of the Privy Council that Hindu Law has not stood still after the Smritis. This is perfectly true. But, with deep respect, the law has not stood still even after the commentators. The meaning of this Privy Council observation is that the ancient texts of Hindu Law did not prohibit the growth of positive customs in accordance with changed conditions. It does not mean that the law itself stands 'repealed' If I may use the terminology of modern legislation because a particular institution had, during a particular period or in a particular locality, gone out of fashion or rusted. A rusted institution is not the same thing as a prohibited institution.
15. Furthermore, the argument that Hindu Law has not stood still after the Smritis cuts both ways. If the commentators' opinion could modify the law as laid down in the Smritis, their opinion must, in turn, give way to the needs and conditions of the modern age. The opinions of the commentators, in so far as they differ from the clear text of the Smritis, could prevail only in the conditions of their own times. To invest the opinion of the commentators with the sanctity of eternal laws -- a privilege denied to the Smritis -- is to hold that the growth of Hindu Law comes to an end in the age of the commentators. With great respect, I am not prepared to accept such a static view of Hindu Law.
16. For these reasons I am of the opinion, with the utmost respect for the learned Judge who decided the Madras case, that the view that the opinion of the commentator may be treated as evidence of the presence or absence of a practice in a particular place at a particular time, but cannot override the Code as laid down in the Smritis. I am fortified in my opinion by a decision of the Bombay High Court in ILR 46 Bom 871: (AIR 1922 Bom 32). In that case Sir Norman Macleod, Kt. Chief Justice and Shah, J. held that the institution of anuloma marriage could not become illegal or prohibited by law simply because it had become obsolete. To quote the learned Judges, 'The prohibition must be found in the law books or in the usage having the force of law.' With respect, I entirely agree. It is one thing to argue that an institution like anuloma marriage, had rusted or become obsolete in the sense that no one took advantage of it, but quite another thing to hold that it became illegal or prohibited by law.
17. For these reasons, I hold that the view of the trial Court that the marriage of the plaintiff Smt. Kastoori Devi with the defendant Chiranji Lal, being an inter-caste marriage was invalid, is erroneous.
18. Its finding that the marriage was not properly solemnized because there was no evidence of the vital ceremony of Saptapadi is also wrong. To establish a valid marriage, there must be evidence of parties who were present at the marriage ceremony and who should state that they saw the marriage being performed. Thus onus was fully discharged by wife in the present case. She went into the witness box and stated that a marriage ceremony took place between herself and the defendant Chairanjilal. She even named the priest or Purohit who performed the ceremony. The priest himself gave evidence and stated that he had performed it. The other witnesses who were present at the marriage ceremony, also gave evidence.
19. In the face of this evidence, it was for the defendant to prove any specific omission which would Invalidate the marriage. During the hearing, I had the entire evidence read put in open Court, and the learned counsel for the respondent had to concede that not a single question was put in cross-examination either to the plaintiff or to the Purohit or to the other witnesses suggesting that the ceremony was defective or vitiated by any vital omission. It is, therefore, difficult to understand, much less appreciate the following observation of the learned Judge that 'There is no proof that Saptapadi i.e. the taking of seven steps by the bride and bridegroom jointly look place before the sacred fire.' With respect to the learned Judge he ignored the use of the word 'vivah' (marriage ceremony) by the plaintiff, the Purohit and all the other eye-witnesses to the marriage,
The word 'Vivah' would include, unless the contrary is proved, all the vital elements of the marriage ceremony. A witness of marriage is not required to prove all the details which taken together constitute vivah sanskar or marriage under the Hindu Law. If the fact of the ceremony having taken place is proved, the law will presume that the ceremony was complete and regular in every respect. It is then for the person seeking to invalidate the marriage ceremony on the ground of some vital defect or omission to prove such defect or omission. The learned Judge shifted the onus of proof in this matter and thought that the plaintiff was required to prove-each step in the marriage ceremony. This error vitiates his entire judgment.
20. Mr. Gaur lastly contended that the agreement between the plaintiff and her husband was invalid as it was obtained by coercion. The finding of the trial Court is dead against him on this point. However, in the interests of justice, I allowed learned counsel to place the entire evidence before me. I am satisfied that the story of coercion set up by the defendant has been manufactured for the purposes of defence in this case. Not a single question was put to the plaintiff or her witnesses in cross-examination nor was any evidence produced in support of the defendants' allegation that the police had taken a hand in the matter and locked him up with the object of obtaining his signatures on a document prepared beforehand. Learned counsel gave no explanation why the police should have taken an interest in the case. I do not mean any disparagement to the police when I say that they are not too keen to volunteer help in matters in which they have no concern unless pressure is put on them by some one having the prestige or the authority to do. In this case there is not a trace of the evidence that anyone-induced the police to take interest.
21. On the other hand, the plaintiffs version that, after her husband had turned her out, a Pan-chayat was held in the village in which the defendant agreed to give her a maintenance allowance is convincing. In particular, her statement that her insistence that the amount of maintenance should be specified in the agreement is corroborated by the fact that the amount of Rs. 30/- is not specified in the main text of the agreement but inserted in a foot note,
22. For these reasons I hold that the plaintiff's case that she was lawfully married to defendant Chiranji Lal, that the latter turned her out after he had married another woman, that there was a Panchayat in which defendant Chiranji Lal agreed to pay her a maintenance allowance of Rs. 30/- per mensem and that subsequently he refused to pay is fully proved. I cannot help observing that the defendant has behaved throughout in a manner which would justify this Court in calling him a cad. He put up a defence, which if successful, would have the effect of branding the plaintiff as a woman of loose character. He also made an unsuccessful attempt to wriggle out a solemn agreement made by him in the presence of the Panchayat.
23. This revision is allowed and the plaintiff's suit for maintenance is decreed. The defendant respondent shall pay the costs of the plaintiff in this Court as well as in the Court below.
24. I further direct that a decree shall be prepared1 in accordance with this judgment within three days and delivered to the plaintiff applicant, on payment of usual charges forthwith.
25. Learned counsel for the plaintiff applicant filed a certificate of fee during the hearing today.Let this be accepted.