1. This appeal is directed against the judgment and decree dt. 31-7-1985 of the learned Additional District Judge (3), Kurukshetra, whereby he allowed an application under S. 9 of the Hindu Marriage Act, 1955 (hereinafter called 'the Act') filed by Smt. Parmeshwari respondent and passed a decree for restitution of conjugal rights against Parkash Chander appellant.
2. A petition under S. 9 of the Act was filed by the respondent on 29-1-1982 alleging therein that marriage between her and Ishwar Singh, brother of the appellant, was solemnised at village Barsana, district Kurukshetra, according to Hindu rites and customs in the year 1959. Ishwar Singh was employed in the Indian Army at the time of marriage. He became lunatic during his service and consequently was discharged from the Army in the year 1961. Thereafter, he remained unheard of for more than 7/8 years and was still unheard of at the time of filing of the petition and was presumed to be civilly dead. No child was born from her womb from the loins of Ishwar Singh. A suggestion/ proposal was put to her parents by the appellant's parents and his near relations that she should enter into a karewa marriage with him--he being the real brother of Ishwar Singh. This proposal was accepted by her as a usual custom in the. community and consequently Karewa marriage was performed between her and the appellant in November, 1969 at village Kaul, district Kurukshetra. Due ceremonies were performed as required for completing the marriage as a legal one and it was accepted by the appellant. After solemnisation of the marriage, it was alleged that the parties started living together as husband and wife at village Kaul and cohabited as such. Out of their wedlock a son named Surinder Singh was born on 24-2-1971 at village Barsana. In 1971 the appellant was employed as Agricultural Inspector at Gurgaon. He started taunting the respondent that she was an illiterate lady and he could get himself re-married with some educated and cultured girl. He also started misbehaving with her and she wrote letters to this effect to her parents. On receipt of these letters, her parents approached the appellant's parents in their house at village Kaul accompanied by some respectables of the locality, brotherhood and relations on 5-11-1972 and requested the appellant not to misbehave with her in future and maintain her as his legally wedded wife but he did not accede to these requests and turned her out of his house in three clothes without reasonable cause or excuse along with the above said Panchayat retaining all the jewellery etc. and the child with him. It was alleged that the child was still with the appellant. A deed to this effect was reduced into writing by the Panchayat. Thereafter, the respondent's parents approached the appellant and his parents many a time but without any tangible result. She addressed letters to the higher authorities of the department of the appellant. Out of fear of any action by the higher authorities against him, the appellant's father approached the respondent's brother in June, 1976 to settle the matter. The brother of the respondent visited village Kaul and also entered into correspondence with Shri Ishwar Singh Ex. M.L.A. on 25-10-1979. She also addressed a letter to the Agriculture Minister, Haryana, and other concerned authorities but without any fruitful result. She thus prayed for a decree for restitution of conjugal rights requiring the appellant to rehabilitate her.
3. The appellant contested the petition. Besides raising preliminary objections to the effect that there was no relationship of husband and wife between him and the respondent; that she was the wife of Ishwar Singh--his elder brother, who was still alive and there had been no divorce of the lawful marriage between her and Ishwar Singh and thus their marriage was still subsisting; that the petition was highly belated and the delay itself spoke volumes about falsehood and manipulations which had culminated into the petition, on merits, the averments made by the respondent in her petition were controverted. It was denied that the whereabouts of Ishwar Singh were not known and he was presumed to be civilly dead. It was further denied that Ishwar Singh became lunatic during the period of his service. It was, however, admitted that he was discharged from service in the Army on his request. It was further stated that subsequent to his discharge from the Army, Ishwar Singh got admission in B.Ed. classes at Chandigarh in 1962. Later in 1963 he got admission in M.A. English course in the Kurukshetra University. He remained employed as a teacher at the Janta High School, Kaul, during the period 1965-66 and he was living at his residence at village Kaul along with the respondent which fact is well known to her. It was vehemently denied that Ishwar Singh was unheard of for 7/8 years since 1961 or that he was still unheard of at the time of filing of the petition. The appellant denied as incorrect the allegation made by the respondent that she entered into Karewa marriage with him. He asserted that no such lawful marriage could take place during the lifetime of Ishwar Singh. The custom of Karewa marriage of a woman in the community during the lifetime of her first husband was denied. It was further asserted that there was a difference in age of the appellant and the respondent of nearly 20 years. The alleged ceremony of the Karewa marriage was also denied. It was further asserted that the respondent was living at village Kaul after marriage with Ishwar Singh till November, 1972. It was denied that Surinder Singh was born out of the wedlock between the parties. It was instead asserted that Surinder Singh was born to the respondent from the loins of Ishwar Singh on 1-9-1969 at village Barsana--the parental place of the respondent. It was further stated that as Ishwar Singh developed into a mental case in the year 1971, he was examined by Dr. Vidya Sagar and later on was got admitted in the Punjab Mental Hospital at Amritsar under the orders of the Sub Divisional Magistrate, Kaithal, dt. 1-7-1971. The parents of the respondent taking undue advantage got false birth entry of Surinder Singh recorded in their village showing him to be the son of the appellant. It was further stated that the appellant was a student and he had good prospects in life. The respondent and her parents tried to pressurise and entrap the appellant to accept her as his wife because Ishwar Singh had been admitted in the Mental Hospital at Amritsar and he remained there as such up to the year 1976. It was further mentioned that Ishwar Singh was the elder brother of the appellant. Younger to him was Dalip Singh who was married to the younger sister of the respondent named Smt. Bohti. When the appellant did not agree to accept the respondent as his wife, her parents took her away from village Kaul, i.e. the appellant's village, to village Barsana. They also took along Smt. Bohti who remained at her parental place for three years from 1972 to 1975. Dalip Singh thereafter filed a petition for restitution of conjugal rights as a result of which Bohti was sent back to her matrimonial home. It was further mentioned by the appellant that he was a student of B.Sc. Agriculture. After graduation, he got employment for the first time in the year 1972. All the complaints and representations made by the respondent and her brother to the higher authorities, Ishwar Singh Ex-M.L.A. and others were termed to be entirely false and were described as pressure tactics to make the appellant bow to her wishes. He, however, did not succumb to the same.
4. So as to establish his defence, the appellant filed a number of documents on 20-3-1982, i.e. the date on which he filed his written statement. These documents included a certificate from the Principal, Janta High School, Kaul, regarding the employment of Ishwar Singh in the said school during 1965-66; a school certificate showing Surinder Singh as the son of Ishwar Singh and his date of birth as 1-9-1969 and a certificate regarding admission of Surinder Singh in the school; a reply from the Union Public Service Commission dt. 22-11-1965 in response to correspondence entered into by Ishwar Singh, letters from the Superintendent, Mental Hospital, Amritsar, dt. 27-3-1973, 21-2-1974, 30-12-1974 and 22-12-1975 regarding parole granted to Ishwar Singh from the Mental Hospital and his re-admission in the said hospital, voters' list of village Kaul for the year 1980-1981 showing Ishwar Singh as one of the voters voters letters dt. 24-12-1973, 3-10-1974 and 14-6-1975 from Ishwar Singh during the period of his admission in the Mental Hospital, Amritsar, addressed to his father Mukhtiar Singh.
5. On the basis of the pleadings of the parties, the learned Additional District Judge framed the following issues:--
1. Whether the petitioner is the wife of the respondent and is entitled to the decree for restitution of conjugal rights? OPP.
2. Whether the petitioner is not the wife of the respondent as alleged and there is no relationship of husband and wife between the parties ?.OPR.
3. Whether the present petition is not maintainable as alleged in para 2 of the preliminary objection? OPR.
4. Whether the present petition is belated one and if so its effect? OPR.
5. Whether the present petition is mala fide and if so its effect? OPR.
6. Thereafter the case was set on trial and some evidence was also recorded. However, on 20-8-1983 the respondent moved an application for amendment of her petition so as to incorporate para 5-A therein to the following effect:--
'That according to the customs prevalent in the Ror community of the parties to which they belong, a marriage can be dissolved under the customs on the ground of either party becoming mentally insane, or having unheard of or the whereabouts of the either party are not known for a period of 2-3 years, or husband has become impotent, or has become incapable of performing duties of a husband, by entering into a Karewa marriage, and the said Karewa marriage is legal, valid and permissible and well recognised by the community at large under the aforementioned customs and the previous marriage stands dissolved automatically according to the customs.'
7. This application was allowed by the learned trial Judge and the amended petition incorporating the above averment was filed by the respondent on 10-11-1983. On its basis, an additional issue No. 5-A was framed by the learned trial Judge on 18-11-1983, which is to the following effect:--
'5-A: Whether according to the custom prevalent in the Ror community, a marriage can be dissolved on the ground of either party becoming mentally insane or having unheard of or whose whereabouts are not known for a period of 2-3 years or the husband has become impotent or has become incapable of performing the duties of the husband by entering into a Karewa marriage, is legal, valid and permissible under the law or the custom? OPP.'
8. The learned Additional District Judge after a long drawn trial, during which the parties led a mass of evidence, mostly oral, on the record, besides certain documents decided issues Nos. 1 and 5-A in favour of the respondent and issue Nos. 2 and 4 against the appellant. Issues Nos. 3 and 5 were also decided against the appellant as having not been pressed. As a result a decree for restitution of conjugal rights was passed in favour of the respondent and against the appellant with costs of the petition, as indicated earlier.
9. I have heard the learned counsel for the parties at sufficient length. The learned trial Court decided issues Nos. l, 2 and 5-A together. However, for the sake of clarity, I shall take up issues Nos. 1 and 2 together and shall deal with issue No. 5-A later.
10. The categoric case of the respondent in her petition is that after the year 1961 when Ishwar Singh, her husband, was discharged from service in the Army, he was not heard of for a period of 7/8 years and was still unheard of at the time of filing of the petition on 29-1-1982 and was thus presumed to be civilly dead. She thus proceeded to allege that in November, 1969, i.e. nearly 8 years after Ishwar Singh was discharged from service in the Army, she entered into a Karewa marriage with the appellant. So, the most crucial question that first requires determination is whether Ishwar Singh remained unheard of after discharge from the Army service in 1961 which, according to the respondent, created circumstances for a Karewa marriage between her and the appellant. There is abundant documentary evidence on the record which belies this claim of the respondent. M. L. Sharma, Superintendent, Examination Branch, Punjab University, Chandigarh, R. W. 3 has deposed that Ishwar Singh son of Mukhtiar Singh was registered as a candidate for B.Ed. examination in April, 1962 but was expelled from the College for two years for gross misbehavior vide University letter dt. 13-6-1962 and his result under Roll No. 44 was cancelled. Ram Kanwal Bhagwania R.W. 6, Clerk, Registration Branch, Kurukshetra University, deposed that according to the University Record Ishwar Singh son of Mukhtiar Singh was enrolled in the said University on 1-8-1962 in M.A. Par I, Political Science. A certificate Ex. R. 10 to this effect issued under the signatures of the Assistant Registrar of the University was proved by this witness. Inder Sain R.W. 10, Cashier, Punjab Mental Hospital, Amritsar, has deposed that according to the history sheet maintained in the hospital Ishwar Singh remained admitted in the hospital from 25-2-1964 and was discharged on 10-8-1965. Risala Ram Saini R. W. 4, a Clerk of the Janta Higher Secondary School, Kaul, deposed that Ishwar Singh remained employed as a teacher in the said School from 16-8-1965 to 31-3-1966. He was a Social Studies Master in English. He drew his salary for the period in question. A certificate to this effect issued by the Principal of the School was proved on the record as Ex. R. 9. It may be further mentioned here that Inder Sain R. W. 10 has deposed that under the orders of the Sub Divisional Magistrate, Kaithal, dt. 1-7-1971 Ishawar Singh was admitted in the Mental Hospital for the second time and remained there from 4-8-1971 to 3-4-1972, 9-6-1972 to 2-4-1973, 3-91973 to 21-I0-1974 and from 2-4-1975 to 2-10-1975 and during the intervening period he went on parole on 3-4-1972, 2-4-1973, 21-10-1974 and finally on 3-10-1975. Ishwar Singh Rathi R.W. 5, Inspector Food and Supplies Department, Kaul, deposed that a ration card was issued in the name of Mukhtiar Singh, father of the appellant, on 25-12-1975 and that apart from others Ishwar Singh and Surinder Singh have been shown as members of the family of Mukhtiar Singh. Dalel Singh R. W. 17, a neighbour of Mukhtiar Singh father of the appellant, the appellant himself as R.W. I8 and his father Mukhtiar Singh as R.W. I9 have stated that Ishwar Singh after discharge from the Army first got admission in the B.Ed. Classes in the Punjab University, Chandigarh, where he studied for one year and thereafter he joined M.A. English Classes of the Kurukshetra University and completed first year of the Course. He, however, remained admitted in the Mental Hospital from Feb. 1964 to Aug. 10, 1965. He then worked as a teacher in the Janta Higher Secondary School in their village Kaul till March, 1966. Thereafter he was doing the vocation of agriculture on the family land in the village till August, 1971, when because of recurrence of his mental ailment, under the orders dt. 1-7-I971, Ex.R. 6 of the Sub Divisional Magistrate, Kaithal, he was once again admitted in the said Mental Hospital. However, for different intervals as mentioned above he was released on parole and that period he spent in his village Kaul. This evidence remains virtually unrebutted on the record. It is, in my view, more than sufficient to hold that right from the year 1961 when Ishwar Singh was discharged from the Army service till at least 3-10-1975 he either remained in the village or he was pursuing studies and for the period from 25-2-1964 to 10-8-1965 and from 4-8-1971 to 2-10-1975 he remained admitted in the Punjab Mental Hospital Amritsar. In between, at different intervals he was released on parole when according to the evidence he remained at his parental village Kaul. He also addressed letters Exs. R. 28, R. 29, R. 30 and marked X-1 to his father Mukhtiar Singh from the Mental Hospital. Letter Ex.R. 28 dt. 24-12-1973 particularly makes mention of the respondent and Ishwar Singh expressed his desire to keep her with him the moment he was released from the Mental Hospital and he got some employment. The contents of these letters also show his eagerness to leave the hospital and lead a normal life. This evidence belies the respondent's case that since Ishwar Singh was unheard of and his whereabouts were not known for a period of 7/8 years since 1961, she entered into Karewa marriage with the appellant.
11. The learned counsel. for the respondent no doubt tried his best to make out a case for the respondent which according to him justified the performance of her Karewa marriage with the appellant. He pointed out that there is no documentary evidence on the record that from April, 1966 till after November, 1969 the whereabouts of Ishwar Singh were known. According to him, the statements of Mukhtiar Singh R.W. 19 and the appellant as R. W. 18 that he was carrying on the vocation of agriculture cannot be believed for the reason that the Commission Agent to whom the agricultural produce was being sold by Ishwar Singh, according to the deposition of Mukhtiar Singh R.W. 19, during this period has not been produced. I do not consider this circumstance of any consequence for the simple reason that on 1-7-1971 the Sub Divisional Magistrate vide certificate Ex.R. 6 directed that because of mental disease Ishwar Singh, resident of village Kaul be admitted in the Punjab Mental Hospital at Amritsar and the hospital record clearly shows his continued internment there till March, 1975. There is no evidence worth the name on the record from the side of the respondent that from April, 1966 till June, 1971 the whereabouts of Ishwar Singh were not known. Presumption, therefore, can safely be drawn about the existence of things between this period as they were prior or subsequent thereto. This would necessarily lead to a presumption that Ishwar Singh was living in the village during this period. Furthermore, there is no reason why R. Ws. Nos. 17, 18 and 19 should not be believed on this aspect of the matter. Reliance by the learned counsel on the statements of Pirthi Singh P.W. 1 and Ram Dia Mahesha P.W. 2 so as to counter the statements of the aforesaid R. Ws. on this aspect is of no avail as the deposition of these P. Ws. is that Ishwar Singh was unheard of and his whereabouts were not known since 1961 when he was discharged from the Army service. These statements stand belied by the record.
12. The next question of definite importance which arises in this case is whether during the lifetime of Ishwar Singh who was very much present in the village, any Karewa marriage could be legally entered into between the respondent and the appellant, or had it in fact been so taken place. There is no doubt whatsoever in my mind that in the presence of Ishwar Singh, who was very much alive in the village, no valid marriage could take place between the parties. Such a marriage would be void in the face of the provisions of S. 5(i) of the Act wherein it is laid down that a marriage may be solemnised between any two Hindus if neither party has a spouse living at the time of the marriage. It has been held by the Supreme Court in Mohd. Ikram Hussain v. State of Uttar Pradesh, AIR 1964 SC 1625, that in view of provisions of Ss. 5 and 11 of the Act such a marriage would be null and void. In para 74 of the Digest of Customary Law by Sir W. H. Rattigan (l3th Edition), it has been laid down that until the former marriage is validly set aside, a woman cannot marry a second husband in the lifetime of her first husband. So, it is clear that no legal marriage could be performed between the parties when Ishwar Singh, husband of the respondent, was alive and living in village Kaul. As to the evidence that such a Karewa marriage actually took place, less said the better. The learned counsel for the respondent has placed reliance on the statement of Pirthi Singh P.W. 1 who is no doubt the real brother of Mukhtiar Singh, father of Ishwar Singh and the appellant. However, his cross-examination as also the documents Exs. R.I. and R. 2 on the record amply show that the relations between Pirthi Singh and Mukhtiar Singh were far from cordial and in fact were inimical. He indulged in untruthful deposition when he stated that he did not know the whereabouts of Ishwar Singh since 1961 or that he never lived in the village. The fact that there was a dispute between Pirthi Singh and the father of the appellant and there was no love lost between them is clear from the documents Exs. R. 1 and R. 2. No doubt Pirthi Singh P.W. 1 stated that he attended the marriages of the two youngest sons of Mukhtiar Singh but when he was questioned about the Neonda, he stated that neither he paid Neonda to Mukhtiar Singh nor the latter paid Neonda on the marriages of the sons of the witness. I am thus not prepared to rely on the statement of this witness at all. As regards Ram Dia Mahesha, his statement also suffers from infirmities such as his untruthful statement about the whereabouts of Ishwar Singh since 1961. He went out of the way to cover up the existing enmity between the appellant's father and Pirthi Singh P.W. l. He claims himself to be a social worker but for the reasons explained above no reliance can be placed on his statement.
13. The learned counsel invited my attention to the letters dt. 20-8-1972, 28-8-1972 and 25-9-1972 marked as 'C', 'B' and 'D' respectively which according to the deposition of the respondent, she had got written and addressed to her parents when she was living with the appellant. Although these letters are not formally proved on the record, I find on their perusal that they were sent from village Kaul and were addressed to Baru Ram, father of the respondent. The contents of these letters simply show that the respondent was not happy while staying in the house of her in-laws. She complained that she was not properly maintained and was not even given proper food and requested her father to come and take her along. There is no mention whatsoever in these letters that the appellant was her husband nor does she ascribe any act of cruelty or maltreatment at the hands of the appellant. Thus, these letters are not of any help to the respondent. The fact that the respondent was living in the house of her in laws even when Ishwar Singh was admitted in the Mental Hospital at Amritsar in the year 1972 is not disputed by the appellant. In fact he had candidly admitted this fact but he has stated that she was living there as the wife of Ishwar Singh and was being maintained by his father Mukhtiar Singh.
14. Another peculiar feature of the case to which the learned trial Court did not attach much importance is that the letters Exs. R. 3, R. 4 and R. 5 addressed by the respondent to the higher departmental authorities of the appellant state that she was married to the appellant according to Hindu rites. These letters do not make mention of the fact that she was already legally wedded wife of' the appellant's brother Ishwar Singh. There is no mention whatsoever in these complaints that on Ishwar Singh being unheard of she entered into Karewa marriage with the appellant. It appears that the respondent and her brother Pirthi Singh P.W. 5 have been adopting different stands to suit different occasions. This is evident from the letter Ex. P.W. 5/RZ addressed by Pirthi Singh P.W. 5 to Ishwar Singh Ex-M.L.A. In this letter in paras 3 and 4 he stated that when his sister (the respondent) was entrusted (gal lagai gai) the appellant's father Mukhtiar Singh and the appellant himself first protested and refused to accept it. He alluded to an allegation that the appellant was responsible for an act which created circumstances to compel them to give respondent to the appellant. It is further stated that a few months thereafter a son was born to the respondent whose father was the appellant. What is stated in this letter is probably aimed at an allegation that the appellant had illicit relations with the respondent as a result of which she got pregnant and the appellant had to accept her as his wife and a few months thereafter the child was born. This allegation, however, is conspicuous by its absence in the present proceedings. What is now alleged is that while the Karewa marriage was entered into between the parties in November, 1969, Surinder Singh alias Surinder Kumar, the child, was born one and a half years later on 24-2-1971. In para 8 of this letter, mention is made of the Panchayat which went to the house of the appellant and his parents in 1972. A stand is ascribed to the appellant that he refused to accept the respondent as his wife and stated how could he do so when his brother Ishwar Singh was alive. He further told the Panchayat that if they wanted to force the respondent on him as his wife, they should first kill Ishwar Singh. The members comprising the Panchayat said in reply that a Panchayat never commits murders etc. Pirthi Singh P.W. 5 has admitted that the letter aforesaid was got typed by him and he addressed the same to Ch. Ishwar Singh Ex. M.L.A. This letter speaks volumes about the fact that what to talk of any Karewa marriage between the appellant and the respondent in November, 1969, even three years latter when the Panchayat visited the appellant and his parents there was yet a dispute and the appellant was not prepared to accept the respondent as his wife when his brother Ishwar Singh to whom she was in fact married was still alive.
15. Stress was then laid by the learned counsel on the writing Ex. PA which purports to have been recorded and signed by the members of the 'Panchayat' which visited the house of the appellant and his parents and it was contended that it establishes the fact that the parties were married and Surinder Singh is the son born out of their wedlock. All this cannot be construed from Ex. P. A. No doubt, it mentions that the appellant refused to keep the respondent as his wife when the Panchayat asked him to do so on 5-11-1972, the rest of the recitals therein to the effect that the appellant is the husband of the respondent and that Surinder Singh is the son born out of this wedlock cannot be given any credence as the factum of this marriage or the birth of the child had to be proved by the respondent by leading direct evidence. It has to be noted here that it is the case of the respondent that till 5-11-1972 she continued living with her inlaws at village Kaul and it was only on that date that she along with her sister Smt. Bohti, who was married to Dalip Singh, the younger brother of Ishwar Singh, left the house of their inlaws and went to reside with their parents at village Barsana. They left their children behind with their inlaws.
16. The learned counsel for the respondent relied on the certified copy of the birth entry Ex. P. 15 of Surinder Singh. This entry no doubt mentions the name of the appellant as the father of Surinder Singh, his date and place of birth being 24-2-1971 at village Barsana and the entry is recorded on 7-3-1971. A very peculiar feature with regard to this document is that the respondent did not produce it in her evidence nor is there any deposition as to the person who got this entry made in the Register of Births. In fact, it was only at the fag end of the trial on 25-7-1975 that it was tendered in evidence through the statement of the learned counsel for the respondent as additional evidence. There is, thus, no material on the record to show as to who was the informant and on the basis of whose information this entry was recorded. I am not oblivious of the fact that the entry regarding date of birth in the Register of Births is a prima facie piece of evidence but at the same time it is not conclusive in nature. Moreover such a birth entry which attributes parentage of the child to a man outside the lawful wedlock does not carry any presumption of its correctness unless there is direct evidence as regards the informant or else the person who is entered as the father of the child admits its paternity. I can safely rely for this view on B. Mahadeva Rao. Yesoda Bai, AIR 1962 Mad 141. On the other hand, the appellant through the statement of Faqir Chand R. W. 2 proved on the record that Surinder Kumar was admitted in the School at village Kaul on 2-9-1974. His parentage is recorded as 'son of Shri Ishwar Singh'. His date of birth is shown as 1-9-1969. According to the statement of this witness, the child was re-admitted in the School on 12-3-1976. Ex. R. 24 is the certificate issued by the Haryana School Education Board to the effect that Surinder Kumar son of Ishwar Singh of Janta Higher Secondary School, Kaul, passed the Middle School Examination in the year 1984 in the Ist Division and his date of birth is 1-9-1969. It is in evidence at the fag end of the trial in the Court below that Surinder Kumar in the year 1985 was studying in the 9th class at village Kaul. The normal sequence of events referred to above dissuades me from attaching any weight to the birth entry Ex. P. 15 with regard to the parentage of Surinder Kumar alias Surinder Singh and this in no way helps the respondent in establishing her marriage with the appellant.
17. The learned counsel for the respondent then contended before me that according to the admitted case of the appellant while his two elder brothers Ishwar Singh and Dalip Singh were married in the years 1959 and 1962 and two brothers younger to him were married in 1975 and 1981 at the age of 25 years, the appellant himself entered into a wedlock with Smt. Sheela only on 16-6-1982 at the age of 33. This according to him amply shows that he had accepted the respondent as his wife in 1969 and only after disowning her he contacted second marriage at an advanced age of 33 years. In my view such a deduction from the circumstances of the case is not possible. According to the Higher Secondary School Certificate of the appellant (Ex. R. 23) he was born on 3-5-1949 which means that when the respondent was married to his eldest brother Ishwar Singh in the year 1959 he was ten years of age. He passed the B.Sc. Agriculture examination (Three Years Degree Course) in the year 1970. According to him, he got employment as an Agriculture Inspector in the year 1972. Soon after, he got employed, the respondent raised a claim that the appellant was her husband which fact is exhibited by the visit of the Panchayat to the house of the appellant on 5-11-1972 and the writing recorded by its members Ex. PA. The respondent did not rest here. She addressed complaints to the appellant's departmental authorities in 1975. Her brother tried to exert political influence by approaching Ishwar Singh M.L.A. through the letter Ex. P.W. 5/RZ in the year 1979. It was quite natural in these circumstances with a view to save himself from any complications and the allegation of bigamy, which is misconduct under the service rules, that he desisted from entering into a valid marriage till the year 1982. This circumstances again is of no help to the respondent.
18. The learned counsel for the respondent sought to get support from the pleadings in the petition for restitution of conjugal rights filed by Dalip Singh, elder brother of the appellant, against Smt. Bohti, younger sister of the respondent, in which a compromise ultimately took place and Smt. Bohti rejoined her matrimonial home. The petition filed by Dalip Singh, the written statement filed by Bohti and the replication thereto filed by Dalip Singh on the record are Exs. R. 12, P. 13 and P. 14 respectively. The contents of the petition and the replication of Dalip Singh Exs. R. 12 and P. 14 in fact cannot be read into evidence as Dalip Singh was not produced in the witness box by either of the parties. However, even if we go through these documents, I do not find any material therein which supports the case set up by the respondent in her petition in the instant case. In his petition Ex. R. 12, Dalip Singh, inter alia, averred that Ishwar Singh, his elder brother, was married to the respondent elder sister of his wife Smt. Bohti. Ishwar Singh had become of unsound mind for about 10 years and as such he was unable to perform sexual intercourse and maintain his wife, as a result of which the father and brother of Smt. Bohti started pressurising him (Dalip Singh) to keep Smt. Parmeshwari in his house and also to maintain her. As he did not agree to it, the father and brother of Smt. Bohti and Smt. Parmeshwari took both the ladies to their village Barsana. In the replication Ex. P. 14, he denied that Ishwar Singh was of unsound mind at the time of his marriage with Smt. Parmeshwari on 1-6-1959. He asserted that at the time of marriage and afterwards Ishwar Singh was in active military service. Later on he developed some defect in his brain and he was admitted in the military hospital on 9-3-1961. He was discharged from the said hospital on 1-6-1961 and was later on discharged from military service as he could not be perfectly cured, He denied that Smt. Parmeshwari, wife of Ishwar Singh, was ever married to Parkash Chander or that they ever lived together as husband and wife. He further stated that the child born to Smt. Parmeshwari was from the loins of Ishwar Singh as the latter had been performing sexual intercourse with his wife Smt. Parmeshwari as he was of sound mind at intervals. The said child Surinder Singh was born from the womb of Smt. Parmeshwari at her parents' house at village Barsana and his birth entry had been got recorded by the father of Smt. Parmeshwari. As already observed by me, these averments by Dalip Singh in no way help the case of the respondent. Her definite case is that the whereabouts of Ishwar Singh were not known for a period of 7/8 years after 1961 when he was discharged from the military service. Her allegation that she entered into Karewa marriage with the appellant, no doubt supported by her sister Smt. Bohti in her written statement Ex. P. 13, is stoutly denied by Dalip Singh. Her further assertion that her child Surinder Singh alias Surinder Kumar is from the loins of the appellant is again refuted by Dalip Singh who has instead asserted that the child is from the loins of Ishwar Singh who had been having sexual intercourse with the respondent when he was sane. No far fetched inference can be drawn from these pleadings in favour of the case set up by the respondent herein.
18A. The learned counsel for the respondent then contended before me that no doubt in the face of the documentary evidence on the record, it is not proved that the whereabouts of Ishwar Singh were not known for a period of 7/8 years after 1961, but he contends that under the custom in the Ror community to which the parties belong when the whereabouts of one of the spouses are not known for 2/3 years it is presumed that such a spouse has died and this makes it permissible for the other living spouse to enter into re-marriage. As regards the customs, the same shall be dealt with under issue No. 5-A. Since, however, the learned counsel has placed reliance on S. 108 of the Evidence Act to contend that when under the aforesaid provisions a presumption can be drawn that a person has died when he is not heard of for a period of seven years, a custom raising presumption that a person has died when he is not heard of for 2/3 years is reasonable. In my view this argument is fallacious for two reasons. Firstly, the presumption under S. 108 of the Evidence. Act arises only when the question is raised in Court as to whether a man is alive or dead and such question is in issue. There is no presumption in this regard unless such a proceeding comes in the Court and an issue in this regard is raised. S. 108 ibid is only a rule of evidence and presumption is drawn for purposes of reaching at a conclusion on the concerned issue. Secondly, the period of seven years laid down in S. 108 ibid with regard to the duration when the whereabouts of a person are not known cannot be whittled down and reduced to 2/3 years under any custom. The Evidence Act overrides the earlier rules of evidence which were not contained in any statute, Act or regulations. The rules of evidence under the Hindu or Mohammedan law or which had origin in custom or were based on principles of equity, justice and good conscience have no validity when they are in derogation to or are in clear departure from the provisions of the Evidence Act.
19. In view of this detailed discussion, I set aside the finding of the learned trial Court on issues Nos. 1 and 2 and hold that the respondent is not the wife of the appellant.
20. In view of my finding on issues Nos. 1 and 2, issue No. 5-A is rendered superfluous and it is not necessary to record any finding, thereon. However, since arguments on this issue were addressed before me, I choose to proceed to deal with it. In the instant case what the respondent had pleaded was that since Ishwar Singh, her husband, had not been heard of and his whereabouts were not known for a period of 7/8 years, she entered into a Karewa marriage with the appellant. Therefore, it is not necessary to probe into the facets of the issue whether there is a custom prevalent in the community of the parties which permits dissolution of marriage on the ground that either party had become mentally insane, had become impotent or was incapable of performing the duties of husband/wife. The only aspect that needs examination and determination is whether a divorce is permissible in the community of the parties under custom where one of the spouses is unheard of or his whereabouts are not known. Before examination of this aspect of the issue, it has to be kept in mind that a custom to be valid must not contravene any express provision of the law. It should not be against public policy nor it should be contrary to justice, equity and good conscience and it should be ancient, certain and invariable These ingredients of a valid custom are laid down in Para 1 of Rattigan's Digest of Customary Law ibid. I have already returned a finding above that the allegation of the 'respondent that Ishwar Singh, her husband, was unheard of or his whereabouts were not known for a period of 7/8 years since 1961 when he was discharged from the military service is not correct. In fact, by positive evidence it has been proved otherwise. It was by way of amendment of the petition that para S-A was introduced therein on 10-11-1983 which led to the framing of issue No. 5-A by the learned trial Court. I have also disagreed above with the contention of the learned counsel for the respondent that for at least 2 to 3 years, i. e. after April, 1966, the appellant has not been able to prove that Ishwar Singh was heard of or his whereabouts were known. In spite of this, I have chosen to examine whether a custom prevails in the community of the parties which permits dissolution of marriage on the volition of one of the spouses when the other spouse has not been heard of or his whereabouts are not known for a period of 2 to 3 years. The learned counsel for the respondent frankly admitted that there is no entry in the Rivajeaam or the Settlement in the locality pertaining to such custom. He has also admitted that such a custom is not judicially recognised. He, however, heavily relied on the statements of various witnesses,, to which I will presently advert, so as to contend that such a custom exists in the community of the parties. The oral evidence comprising the statements of Pirthi Singh, P.W. 1, Ram Dia Mahesha P.W. 2 and Smt. I Parwari P.W. 23 is in the form of indirect evidence of certain instances of dissolution of marriage and re-marriage. The learned counsel for the respondent candidly admitted that the evidence of these witnesses is in the form of indirect evidence and when the parties to these instances are alive and direct evidence in regard to the same is available, the evidence of these witnesses is not of much consequence. He, however, laid stress on the direct evidence which has been led in the form of statements of Khemla P.W. 6, Amar Singh P.W. 7, Chanchal P.W. 8, Jai Singh P.W. 9, Lakhpat Singh P W 10, Sadhu Ram P.W. 1l, Jasmer Singh P.W. 12, Pirthi son of Bhulla Ram P.W. 13, Ram Sarup P.W. 14, Mahatma Jaimla Nand P.W. 15, Hirda Ram P.W. 16, Giana P.W. 17, Amar Singh P.W. 18, Sher Singh P.W. 19, Hari Singh P.W. 20, Amar Singh P.W. 21 and Jhandu P.W. 22. I have gone through the statements of these witnesses, with the help of the learned counsel for the parties. It is only the statement of Pirthi P.W. 13 which cites the instance of the whereabouts of a husband being not known for a period of 2 to 3 years and consequently the wife having remarried. He has stated that he entered into Karewa marriage 6 to 7 years back with his wife Kamla, who was previously married to his brother Sarup about 20-21 years ago. Maklawa ceremony was performed 6 years after the marriage of Kamla with his brother. His brother and Kamla lived as husband and wife for 3/4 years. Thereafter Sarup left the house. They searched for him for 2 or 2 1/2 years but in vain. Then Kamla entered into Karewa marriage with him. All the other witnesses named above have cited instances of the first husband of a lady having become of unsound mind, impotent, having renounced the world and entered a religious order. Thus, none of these instances, has a bearing on the question before me. As such, the simple proposition with which I am faced is whether a single instance of marriage of the kind mentioned by Pirthi P.W. 13 is sufficient to establish custom. The reply is an emphatic 'No'. It has been observed in Rattigan's Digest of Customary Law ibid at page 211 that a single instance cannot prove a custom nor are a few instances of a modern date sufficient to prove a custom in derogation of ordinary law. Thus, in my view the custom of the kind pleaded by the respondent under the cover of which she alleges to have entered into Karewa marriage with the appellant which according to her led to automatic dissolution of her marriage with Ishwar Singh is not established. I, therefore, set aside the I finding of the learned trial Court on issue No. 5-A and hold that the respondent has failed to prove this issue.
21. The remaining issues have not been pressed before me and therefore I do not deem it necessary to deal with the same. I affirm the findings of the learned trial Court on issues Nos. 3, 4 and 5.
22. As a consequence, this appeal is allowed, the judgment and decree dt. 31-7-1985 of the learned Additional District Judge, Kurukshetra, granting decree of restitution of conjugal rights in favour of the respondent and against the appellant is set aside and the petition of the respondent under S. 9 of the Act is dismissed. The parties are, however, left to bear their own costs.
23. Appeal allowed.