1. The parties were married at Smalkha on June 18, 1973. After about five years, on April 22, 1978, the husband filed a petition under Ss. 11 and 12 of the Hindu Marriage Act, 1955, for the annulment of his marriage on the grounds that his consent had been procured by fraud and that the parties being the children of the real brother and sister were related within the prohibited degree and, therefore no valid marriage could be performed between them. The petition was opposed by the wife who denied all the material allegations and in the alternative pleaded that even if the alleged relationship between them was proved, there existed a custom amongst Aroras which permitted such a marriage. On the pleadings of the parties, the following issues were framed:--
1. Whether the parties are related to each other within prohibited degree as alleged in para No. 4 of the petition?
2. If issue No. 1 is proved then is there any custom in existence which validates such a marriage?
3. Whether the consent of the petitioner to this marriage was obtained by fraud and by concealment of facts as alleged in para No. 5 of the petition. If so to what effect?
After trial, issues Nos. 1 and 2 were answered in favour of the husband and issue No. 3 against him with the result that a decree annulling the marriage between them was passed by the learned Additional District Judge, Karnal, vide judgment dated April 3, 1980. Aggrieved thereby, the wife has come up in this appeal.
2. The findings of the trial Court on issues Nos. 1 and 3 were not challenged by the parties and are accordingly confirmed. So, the sole dispute between them is as to whether there exists a custom in the community of the parties which permits marriage between the children of a brother and a sister or the two sisters.
3. The appellant, to prove the alleged custom, gave her own statement and examined RW 2 Baldev Raj, RW 3 Tharu Ram, RW 4 Sant Lal Pruthi, RW 5 Sulakhan Singh, RW 6 Kishan and RW 8 Jodha Ram, her father. All the witnesses produced by the appellant are Arora by caste and have migrated from district Jhang in West Pakistan. They have with one voice deposed that there existed a custom amongst Aroras in the West Pakistan which allowed marriage between the children of a brother and a sister or two sisters and that after migration to India in the year 1947, this custom still continues to prevail amongst them. All of them have supported their statements by citing a couple of instances of such marriages. RW 2 Baldev Raj is a retired Judicial Officer and was practising Advocate at Bhiwani when he appeared in the witness box. He cited five example of such marriages including his own. Most of these marriages had taken place in West Pakistan. Although he did not belong to district Jhang from which place the parties hail but that would be no ground to reject his evidence because the custom alleged was not confined to any territory in West Pakistan and was said to be prevailing generally amongst Aroras. All the remaining witnesses belonged to district Jhang and cited instances of the marriages between the persons related within the prohibited degrees of their own families and the near relations. In all, more than seventeen instances of the alleged custom found mention in their statements.
4. The respondent, to rebut this evidence, appeared as his own witness and examined AW 3 Bhagwan Dass. Both of them denied the existence of the alleged custom without citing any instance where such marriage was objected to or challenged. In the cross-examination when they were asked about the instances later on proved by the witnesses to the appellant, simply showed their ignorance or gave evasive replies. The respondent thus led hardly any evidence to rebut the voluminous evidence produced by the appellant. The trial Court ignored all that evidence simply on the ground that the instances cited by the witnesses did not relate to the persons belonging to Jhang district. This was obviously an erroneous approach because the custom alleged was never claimed as the one confined to Jhang district or to the Aroras coming from any particular area in West Pakistan.
5. However, to controvert the effect of the evidence led by the appellant, the learned counsel for the respondent relied on the answer to question No. 10 in the Riwaj-a-Am of Jhang district compiled by the Settlement Officer, Jhang, in the year 1925. For ready reference, the question and answer are reproduced below:--
Q. No. 10 (old question No. 1) Enumerate the relatives with whom the marriage is unlawful.
Ans. All tribes follow their personal law.
On the basis of this entry in the Riwaj-a-Am which normally carries a presumptive evidentiary value, it was argued that all the tribes in Jhang district followed their personal law as to the persons between whom marriage was not permissible and not custom, as alleged by the appellant was, therefore, in existence. I am unable to subscribe to the view put forward by the learned counsel. The answers contained in Riwaj-a-Am are generally based on the views of the agricultural tribes and not high class Hindus. Although in the introductory remarks it is stated that the questions were circulated to the big landowners and the members of the legal profession but that also would not show that the views were ascertained regarding the custom prevailing amongst the high class Hindus. On the contrary the answer itself shows that it was the view of all the tribes which obviously means of the agricultural tribes and not of the high Class Hindus.
6. It was next contended that even if any custom or usage was prevailing prior to the Hindu Marriage Act, it stands repealed by the provisions of S. 4 which has the overriding effect and all laws or usages contrary to the provisions of the said Act stand repealed after its enforcement. The argument is wholly fallacious because the provisions of S. 4 are subject to the other provisions of the Act and S. 5(iv) expressly saves custom or usage governing the parties which permits marriage between the persons with in the prohibited degree of relationship. Yet another argument raised was that on the basis of the instance proved which mostly relate to the recent period, no inference of custom or usage could be drawn because according to the provisions of S. 3(a), the custom and usage signify any rule which having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. To support his contention, the learned counsel for the respondent relied on a single Bench decision of this Court in Smt. Gurnam Kaur v. Gurdip Singh (1903) 65 Pun LR 721. This, again, is wholly misconceived argument because the custom proved by the witnesses is of very ancient origin beyond the human memory. Though most of the instances relate to the period after the partition of the country, yet some of the instances relate to the period more than 50 years back which coupled with oral evidence provide sufficient basis for upholding the alleged custom. So far as the decision in Smt. Gurnam Kaur's (case) (supra) is concerned, suffice it to say that the finding recorded there was based on the facts and circumstances of that case which obviously has no value as a precedent so far as this case is concerned. Moreover that case related to Khatris whereas the parties in the present case are Aroras who do not belong to the orthodox class of Hindus and are known to be much more liberal about the prohibited degree between the two spouses.
7. Lastly, it was contended that the instances of marriage cited in support of the alleged custom have no evidentiary value because there was no legal evidence on the record to show that the parties to those marriages were related to each other within the prohibited degree. According to the learned counsel, the only evidence to prove the said relationship would be one which is permissible under S. 32 of the Evidence Act. As the evidence produced does not satisfy the requirements of that section it would not be admissible to prove the relationship between the two spouses. This contention is equally devoid of any merit. All the witnesses deposed regarding the marriages of the members of their own families. They had, therefore, personal knowledge about the relationship between the two spouses and it being a direct evidence, was not required to satisfy the provisions of S. 32 of the Evidence Act. Just as if a father or mother or brother is to depose as to the relationship of his or her son or brother or sister, the evidence need not conform to the requirements of S. 32 because all of them have the direct knowledge of the birth of the person concerned and their statement cannot be labelled as opinion statement as the one under S. 32 of the Evidence Act is.
8. Apart from the merits of the controversy between the parties, the petition was also liable to be dismissed on the ground of laches. The marriage between the parties took place on June 18, 1973 whereas this petition was filed on April 24, 1978, about five years thereafter. No explanation whatsoever has been offered by the respondent for this inordinate delay in moving the petition. On the contrary, it appears that the petition was filed because the wife had failed to give birth to a child and was not keeping good health for some time. As none of these two circumstances could provide a ground for divorce, the respondent thought of setting up the plea that the marriage between them was a nullity because they were related to each other within the prohibited degrees. It would not, therefore, be just to allow the husband to claim a decree of nullity after such an inordinate delay.
9. In view of the above findings, this appeal is allowed, the impugned judgment and decree set side and the petition dismissed. As the wife was already been allowed litigation expenses, there would be no order as to costs.
10. Appeal allowed.