1. This is a defendant's appeal arising out of a suit for recovery of possession. The plaintiff had a brother Paltu, who died some six years ago. He married a woman named Mt. Mano and executed a deed, dated 29th January 1904, under which he stated that he had installed her in his house (apne ghar men baitha lia hai) and made a Will that after his death she would inherit the whole estate and that his brothers would have no right. There was a further provision that if he were not to keep her he would pay her Rs. 10 a month regularly. In his lifetime, however, he executed a deed of gift, dated the 29th of April 1917, under which he transferred the property in dispute to Mt. Mano. The validity of this deed is accepted by the plaintiff and he admits that the property thereafter became the stridhan property of Mt. Mano. Paltu died in 1919, and it was a part of the plaintiff's case that after his death there was an agreement between him and Mt. Mano as well as some other relations that she would remain in possession of the property for her life and after her death the plaintiff and his brother would get it. Apart from this agreement the plaintiff claimed to be the heir of Mt. Mano, who died on the 16th of April 1921 leaving no issue. The defendant is the mother of Anand Prakash who was the son of Nathu Singh, a brother of Mt. Mano. The defendant denied that the plaintiff was Mt. Mano's heir, and pleaded that she having been married in karao form her heirs were her relations in the paternal line. It was further pleaded that before her death she had executed a Will dated the 14th of April 1921 under which she had bequeathed the property in favour of Anand Prakash.
2. The Court of first instance found that the alleged agreement was not established. It found that the marriage of Mt. Mano had been a widow re-marriage in the karao form. It came to the conclusion that her marriage could not be said to have been in the Brahma form and that, therefore, the plaintiff was not her heir. It, therefore, dismissed the suit considering it unnecessary to go into the question of the alleged Will. On appeal the learned District Judge has affirmed the finding that the agreement has not been established and has also affirmed the finding that Mt. Mano's marriage had been in the karao form. He, however, came to the conclusion that it must be presumed that her marriage was in the Brahma form and that, therefore, the plaintiff was the legal heir. He has accordingly remanded the case in order that the other issues may be disposed of.
3. The argument of Dr. Katju on behalf of the appellant may be summarized as follows: It is an essential feature of the Brahma form of marriage that there should be a gift by the father or other legal guardian of the girl and that as on the first marriage she passes into a new gotra her paternal relations have no longer any right left to give her away a second time. His contention, therefore, is that a widow re-marriage can never be a Brahma form of marriage. He argues that unless the plaintiff establishes that the marriage was in one of the four approved forms he cannot succeed. He contends that a karao form of marriage does not come within the definition of any of the first four forms and that in fact about the time when the Mitakshara was written re-marriages were obsolete and, therefore, not in contemplation.
4. On the other hand the argument of Mr. Peary Lal Banerji on behalf of the respondent is that no ceremonies are absolutely essential for the validity of a marriage and that if a re-marriage is allowed by custom the wife has the same rights and status as a maiden who has been married. In order to show that in every case, no matter to which caste the parties belong, there is a strong presumption that the marriage was in the Brahma form, he relies on the cases of Jaganath Prasad Gupta v. Runjit Singh (1898) 25 Cal 354, Authikesavulu Chetty v. Ramanujam Chetty (1909) 32 Mad 512 and Gabrielnathaswami v. Valliammai Ammal AIR 1920 Mad 884. He has gone further and urged that nowadays only two forms exist namely, Brahma and Asura, and that if it is not shown that the marriage was in the Asura form, the irresistible conclusion is that it was in the Brahma form. He has pointed out that the findings of the Courts below being that no price was paid the marriage could not have been in the Asura form.
5. The rule of succession to stridhan property left by a woman married in karao form ought in the first instance to be determined with reference to the particular custom of the caste. Where the incidents of this custom can be traced they will have to be given the force of law. The difficulty arises in a case where no particular custom as to inheritance to stridhan is established.
6. The rule of succession to stridhan is stated by Vijnaneswara in the Mitakshara as follows:
Of a woman dying without issue, as before stated, and who had become a wife by any of the four modes of marriage denominated Brahma, Daiva, Arsha and Prajapatya, the property, as before described, belonged in the first place to her husband. On failure of him it goes to his nearest sapindas. But in the other forms of marriage called Asura, Ganddharba, Rakshasa and Paisacha, the property of a childless woman goes to her parents, that is, to her father and mother. The succession devolves first (and the reason has been before explained) on the mother, who is virtually exhibited (first) in the elliptical phrase pitrigami, implying 'goes' (gachchhati) to both parents (pitarau), that is, to the mother and to the father. On failure of them, their next of kin take the succession.
7. This passage is a commentary on the text of Yajnavalkya which is as follows:
The property of a childless woman married in one of the four forms denominated Brahma, etc., goes to her husband; but if she leave progeny, it will go to her (daughter's) daughters; and in other forms of marriage (as the asura, etc.,) it goes to her father (and mother on failure of her own issue).
8. Now if it were possible to say that the karao form of marriage is identical with any of the eight forms mentioned above there would be no difficulty in deciding which rule of succession should prevail. The difficulty arises when the customary form of marriage is not identical with any of those forms.
9. Now, if we examine the definitions of the various forms of marriage, we will find that the classification into eight forms was not logically exhaustive. It is possible to conceive of a form of marriage which is a mixture and is not strictly identical with any of these eight forms. The Hindu law recognizes custom as a matter of paramount importance, and custom if it is established can override the written law. It is therefore manifest that we may have customary forms of marriage which are perfectly valid and which do not strictly come within the definitions of any of these eight forms. In a vast country like India with so many castes living in so many different places, multifarious forms of marriage allowed by custom can and have come into existence. It would therefore be inappropriate to put them in any of these eight categories.
10. Similarly there may be statutory forms, e.g., marriage under the Widows Re-marriage Act which also may be difficult to class under any of the above forms.
11. I am therefore not prepared to accept the contention of the learned advocate for the appellant that a widow re-marriage can never be deemed to be in the Brahma form. Nor I am prepared to accept the argument of the learned advocate for the respondent that only two forms, Brahma and Asura, are now in existence and the rest are obsolete. When customary forms of marriage are allowed, they may be (provided such is the custom) in any one of the eight forms or an approach to any of one of them. I do not think it is correct to say that unless it be shown that the customary marriage was in the Asura form, it must always be conclusively presumed that it was in the Brahma form. In my opinion when the particulars of a customary form of marriage are known then the question of the presumption that it was in the Brahma form becomes of very little importance. That presumption substantially arises only when all that is known is that a marriage did take place. In such cases the presumption is that the marriage was in the Brahma form no matter what the caste of the parties be. But when the incidents and the circumstances attending the customary form of marriage are known the presumption can no longer be applied and the Court must find of what form it is. When facts are proved the question of what form the marriage is becomes a question of law.
12. It is true-that the basic principle underlying the first four forms of marriage as well as the fifth form is the gift of the girl by her father or other lawful guardian. The Asura form is distinguished from the first four forms because of the pecuniary consideration. On the other hand the last three forms of marriage do not contemplate any formal gift by the guardian though in the case of Gandharba marriage the choice by the girl may be followed by the ordinary ceremonies.
13. When re-marriage is allowed by the custom of a caste such a marriage may not have any disapprobation attaching to it. On the other hand, even among castes which allow the validity of remarriages, such marriages may be regarded as not a praiseworthy and superior form but a blameworthy and inferior form of marriage. In my opinion the rule of succession ought to vary according as the marriage is not or is blameworthy. For instance if a virgin widow has not passed out of her parent's family and is still under its control and her parents or other legal guardians in pursuance of the caste custom which allows such marriage give her away in marriage a second time as if she were a maiden the marriage, though a widow marriage, would undoubtedly be in the Brahma form if there is no social censure attaching to it. On the other hand if a widow, who is not a virgin, herself enters into a matrimonial alliance in a form considered blameworthy by the caste, though recognized by custom as valid, and there is no gift of her by legal guardians, it may be difficult to see any analogy between such marriage and the Brahma form of marriage even though there be no consideration paid to her guardians. It may rather be an approach to the gandharba form where the marriage takes place with the mutual desire of the parties. In this latter case it would be of an inferior form, particularly when such a marriage is looked down upon by the caste prople; but if such a marriage is not considered the least blameworthy, it would be deemed to be of the Brahma form.
14. The learned advocate for the respondent has referred us to the case of Bhaoni v. Maharaja Singh (1880) 3 All 738, where it was remarked that the gandharba form which was nothing more or less than concubinage, had become obsolete as a form of marriage giving the status of wife and making the offspring legitimate. What the learned Judges meant was that in the absence of any custom to that effect such a marriage was not valid in law. They could not have meant to lay down that Gandharba marriages were wholly non-existent, and cannot be recognized even if they are allowed by custom.
15. That the quality of marriage is also a consideration is apparent from a curious case which came up before the Bombay High Court, namely, that of Moosa Haji Joonas v. Haji Abdul Rahim (1906) 30 Bom 192. In that case the parties to the marriage were Cutchi Memons who performed their marriages in accordance with the Mahomedan law, but who under a special custom are governed by the Hindu Law of inheritance and succession. The marriage obviously was not in any of the Hindu forms of marriage, and yet the learned Judges of the Bombay High Court held that, inasmuch as the particular marriage was in the highest form of union known to Cutchi Memons, and was free from all that was reprehensible and that could call for censure, it corresponded with the four approved kinds of marriage under the Hindu system and was distinguishable from the four disapproved. They accordingly held that the rule of devolution was the one applied to marriages of the approved form.
16. Even in the case of Hira v. Hansji Pema (1913) 37 Bom 295, where a re-marriage of a divorced Koli woman was held to be of the Brahma form, the learned Judges remarked: 'Admittedly re-marriage 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 juris prudence where established custom plays such an important part as it does in Hindu Law.'
17. Similarly, in the case reported as Authikesavalu Chetty v. Ramanujam Chetty (1909) 32 Mad 512, though it was held that, 'In the absence of any proof to the contrary the marriage must be presumed to be in one of the approved forms,' the learned Judges remarked that the presumption of Hindu Law must be applied only with some caution to marriage among the (kararais) caste.... The case, therefore, has to be decided upon the evidence given by the parties without the aid of any presumption in favour of 'either side.' The question unfortunately arises before us in the abstract form whether the widow re-marriage in the karao form is a Brahma form of Marriage or not. The plaintiff led evidence to prove that Mt. Mano was a virgin maiden and that she was married in the Brahma form and the ceremony of going round the seven steps was also performed. On the other hand the defendant led evidence to show that she was a widow and that there was no phera ceremony and no worship at all and in fact some price was paid for the marriage. Though the Courts below have rejected the plaintiff's evidence that she was a virgin maiden, and have accepted the defendant's evidence that she had been a widow, they have not thought it necessary to find in detail the actual ceremonies, if any, which took place, nor have they found whether a karao form of marriage is considered an inferior form of marriage and regarded with disapprobation or not. They have however found that no price was, in fact, paid.
18. It seems to me that one of the important questions which can enable us to determine whether the marriage is in an approved or disapproved form has been left unanswered. I have therefore thought it essential to examine for myself the evidence of both parties.
19. I find that out of the ten witnesses produced by the plaintiff, only four speak of Mt. Mano's marriage. They however go so far as to deny that it was in the karao form. In cross-examination they were not questioned as to whether karao marriages are regarded with disapprobation by the caste. Out of the fourteen witnesses examined by the defendant five speak of her marriage. They say that she was a widow and was married in the karao form without any phera ceremony. They do not go on to state that a karao marriage, though recognized by custom as legal, is considered by the Ahir caste an inferior form of marriage and is not looked upon with approbation.
20. When a particular form of marriage is recognized by custom it is to be presumed that the caste approves of it and no social censure attaches to it unless the contrary is established. The burden lies on the person who asserts the contrary. In the present, case when there is no evidence of any kind that a karao marriage is regarded by the Ahir caste with disapprobation and generally censured, I must hold that the defendant has failed to discharge the burden that lay on her. It must therefore be assumed that the marriage was in one of the approved forms, and the plaintiff is the heir to her stridhan. I would on this ground uphold the order of the District Judge.
21. The property in dispute in this case was the stridhan property of Mt. Mano now dead. Mt. Mano was a widow and was married by karao marriage to Paltu Ram. The parties are Ahirs and it is common ground that in this caste the marriage of widows in the karao form is recognized and constitutes a valid marriage. It is therefore unnecessary to go into the question what formalities are necessary or were observed in this form of marriage. Paltu Ram made a gift of the property in suit to Mt. Mano in 1917. Paltu Ram died in 1919. Mt. Mano died in 1921. The plaintiff Sheo Paltan is Paltu Ram's brother, and his claim so far as it is now in controversy rests on the ground that except where the marriage is in a disapproved form the stridhan is inherited in the absence of issue by the husband and his sapindas. The original defendant was Anand Prakash, a nephew (brother's son) of Mt. Mano. He died during the suit and was succeeded by his mother Mt. Kishan Dei. Her defence so far as it is now material is twofold. She alleges that Mt. Mano executed a will in favour of her son, and she asserts the marriage was not in an approved form and that in consequence even on an intestacy the stridhan goes to the wife's relations and not to those of her husband. The question of the will remains to be tried. The Subordinate Judge held that the plaintiff had failed to prove that the marriage was in the Brahma form, the only approved form now surviving; he was therefore not a possible heir even in the absence of a will and had no cause of action for the suit. The suit was accordingly dismissed. The learned District Judge holds that there is a presumption that every valid marriage is in an approved form and that the defendant had failed to rebut that presumption. It was not suggested before the District Judge that the marriage could be included in either of the four recognized disapproved forms, viz., Asura, Gandharva, Rakshasa and Paisacha. The learned District Judge therefore held the marriage to be in an approved form and the plaintiff to be entitled to succeed in the absence of a will. He therefore remanded the case for decision on the merits. Against that order the present appeal has been filed.
22. In this Court the defendant-appellant relies on the description of a Brahma marriage given by Manu as being 'the gift of a daughter, clad only in a single robe, to a man learned in the Veda, whom her father voluntarily invites and respectfully receives.' He argues that a giving by the father is essential part of this definition, and that it is entirely inapplicable to the marriage of a widow where there is no giving by the father and she herself is a principal in the transaction. As the girl passed into another gotra by her marriage, only a virgin could be married in this form. The plaintiff-respondent relies on the line of reasoning adopted by the District Judge, and argues further that a Brahma marriage cannot be limited by the narrow terms of Manu's definition, which has long become obsolete. The requirement that the husband shall be learned in the Veda shows how archaic the description is. As the other forms became obsolete the conception of a Brahma marriage widened so as to include all valid marriages with the exception of the Asura, the only disapproved form which still survives, and any valid marriage which is not in the Asura form will necessarily be treated as a Brahma marriage.
23. Now it is obvious that we are dealing here with a state of things not contemplated by Manu or Vijnaneshvara. In no respect has Hindu society changed and progressed more since the laws of Manu than in its conception of marriage. Six of the eight forms mentioned by him have wholly disappeared. It is probable that in very early times widow remarriage was allowable, but at the era of the Mitakshara, and even at the earlier period when the manava dharmashastra received its final form, it had long ceased to be recognized. They do not therefore provide for it, and though they do emphatically assert the binding force of custom, they say nothing as to the class in which marriages recognised as valid by caste custom shall fall.
24. Nevertheless some progress has been made in adapting the law to the modern social conditions, and we ought in dealing with this case to apply the same principles which have already obtained recognition from the Courts. The leading principle is that a marriage is presumed to be in an approved form unless it is shown to be in a disapproved form. This is a reasonable principle and is not contradicted by anything in the Hindu texts. If a marriage is valid at all, the natural presumption is that it is valid in all respects and carries the full privileges and obligations of an approved marriage, and the burden of proving that its results fall short of this is on the person who asserts it.
25. The presumption in favour of a marriage being in an approved form is supported by numerous authorities, commencing with Thakoor Deybee v. Rai Baluk Ram  11 M.I.A. 139 and including Jagannath Prasad Gupta v. Runjit Singh (1898) 25 Cal 354, Authiksavulu Chetty v. Ramaswamy Chetty (1909) 32 Mad 512, Muthan Chetty v. Ramawamy Chetty : (1906)16MLJ550 and several Bombay cases. In Hira v. Hansji Pema (1913) 37 Bom 295, the marriage of a divorced woman of the Koli caste was treated as being authority in an approved form. This is a strong authority against the view that only the marriage of a virgin can be treated as approved. The same principle has been applied in Moosa Haji Joonas v. Haji Abdul Rahim (1906) 30 Bom 192 to a marriage which, being between persons who were only partly governed by Hindu law, was admittedly not strictly in any form contemplated by Manu, and there seems no reason why it should not equally apply to marriages which derive their validity from custom. The binding force of custom among Hindus has been clearly laid down in the Shastras, and it would be superfluous to cite texts or other authorities in support of it
26. A suggestion was made in the course of argument in this Court that a karao marriage, being contracted by the consent of the parties, should be identified with the gandharba form of marriage mentioned by Manu. No such suggestion was made in the Court below, and it cannot be too strongly repudiated. As Mayne points out in his Hindu Law, Ch. 4, the different forms of marriage enumerated by Manu relate to different stages of social progress and their antiquity is in inverse ratio to the order in which they are mentioned. Gandharba is one of the three most primitive, and is really nothing more than the unregulated indulgence of lust. As was pointed out in Bhaoni v. Maharaja Singh (1880) 3 All 738 no ceremonies were necessary (I am aware that the Madras High Court has differed, but the Allahabad view is historically the more correct), and as such was allowable to soldiers, to whom much was allowed which would not be tolerated in ordinary citizens. To identify modern forms of marriage such as those proposed toy the Hindu Widows Re-marriage Act with this primitive and absolute form would be historically unsound and socially reactionary. To quote Mayne again,
This form belongs to a time when the notion of marriage involved no notion of permanence or exclusiveness. Its definition implies nothing more than fornication. It is difficult to see how such a connexion could be treated at present as constituting a marriage, with the incidents and results of such a union:' (p. 100, Edn. 8).
27. The view taken by the learned Judge is therefore in my opinion, correct, and I would dismiss this appeal with costs including fees on the higher scale.
28. This appeal is dismissed with costs including fees on the higher scale.