A.N. Grover, J.
1. This petition for revision involves the decision of a somewhat novel point relating to a custom by which divorce was permissible among the Jats of erstwhile Malerkotla State before the enactment of the Hindu Marriage Act, 1955.
2. One Ishar Singh instituted a suit in the Court of Sub-Judge 2nd Class, Malerkotla, for the dissolution of his marriage with Mst. Bhan Kaur on the allegation that he was married to her nearly 15 or 20 years ago but that for the last 1.2 years she was living in adultery with one Baggu (who was his brother) and that according to the custom by which the parties were governed, he was entitled to a divorce on the ground of the wife's immorality. The suit was contested by Bhan Kaur inter alia on the ground that she was not immoral and that under the law by which the parties were governed there could he no divorce.
3. The following two issues were raised:
'(1) Whether the suit is maintainable?
(2) Whether the defendant is unchaste and on that ground under Customary Law the plaintiff is entitled to the dissolution of the marriage?'
4. By a judgment dated the 22nd December, 1951, the Sub-Judge decreed the suit. The wife appealed but the learned District Judge of Barnala affirmed the decision of the first Court on 28-3-1952. Thereupon Bhan Kaur preferred the present petition for revision under Section 115 of the Code of Civil Procedure. Ishar Singh died on 4-12-1958, and an application was made on behalf of Bhan Kaur for impleading the alleged three daughters of the deceased through their guardian Baggu as legal representatives. Bhandari C. J. issued a notice to the three daughters of the deceased to show cause why they should not be impleaded as respondents.
It seems, however, that another person by the name of Joginder Singh applied for being substituted in place of Ishar Singh alleging that he was his adopted son and challenging the substitution of the minor daughters of Bhan Kaur as legal representatives of the deceased. The question as to who should be impleaded as legal representatives of Ishar Singh was finally decided by Gurnam Singh J. vide his order dated 23-8-1957. After hearing the counsel for the parties he directed that the three daughters of Ishar Singh and Joginder Singh, the alleged adopted son, should be brought on record as his legal representatives.
5. When the petition was being argued today, Mr. Bhandari the learned counsel for Joginder Singh raised a preliminary objection that the petition for revision should be dismissed as having abated owing to the death of the respondent. His contention is that the suit was for dissolution of marriage and now that the husband had died, the right to sue within the meaning of Order 22 Rule 1 did not survive. He has drawn my attention to a decision reported in S v. S etc. 60 Pun Re 1906. where Mr. Justice Reid held that a suit by a husband for dissolution of marriage abated on the death of the respondent pending the suit.
The judgment is altogether cryptic and no reasons arc given for taking the above view, I was also refferred to Kalloo Chaudhari v. Ramzan, AIR 1943 Oudh 14. In that case it has been observed that in a suit for a declaration that excommunication of the plaintiff from the biradari by the pan-ches was illegal and for damages, if the plaintiff dies during the pendency of the appeal, the appeal abates on the ground (hat the cause of action being personal to the plaintiff no right to sue survives to his legal representatives.
6. With 'respect I am inclined to accept the view that in a case of this nature the right to sue will not survive which includes the right to defend an appeal or a petition for revision, but since the learned counsel for Joginder Singh respondent appeared before Gurnam Singh J. and it was after hearing him that the order dated 23-8-1957 was passed. I see no reason now to sustain the preliminary objection.
7. The main point on xvhich the courts below had decreed the suit for dissolution of marriage was that according to a special custom which governed the parties there could be a divorce if a woman was immoral, and it had been proved that for the last 10 or 12 years. Bhan Kaur had been living with Baggu as his wife and therefore Ishar Singh was entitled to get a divorce.
8. It is perfectly true as is contended by the learned counsel for the petitioner that Hindu Law does not recognise divorce at all but in the Punjab as also in the erstwhile State of Patiala and East Punjab States Union custom would be the first rule of decision where a matter is found to be governed by custom. In Lachu v. Dal Singh, 33 Pun Re 1896, it has been held that although divorce is not recognised eo nomine by Hindu Jats, it is in no way repugnant to the tribal law. by which they are governed in such matters, that a man who takes a wife should have the power of repudiating her, and that, when so repudiated, she should be free to marry another man. At page 94, Roe C. J. observed :
'The Hindu Jats are governed by their own tribal law, the essential points of which, as regards marriage, are that the woman must be of a certain tribe, outside certain gots, and must be openly acknowledged as a wife.
It is in no way repugnant to the spirit of this law that a man who takes a wife should have the power of repudiating her, and that, when so repudiated, she should be free to marry another man.' Again in Kudomee Dossee v. Jeteeram Kolita, ILR 3 Cal. 305. it was decided that though Hindu Law did not contemplate divorce, still in those districts where it was recognised as an established custom, it would have the force of law. It was observed in Tagore Law Lectures 1908 on Customs and Customary Law in British India, 'divorce is not contemplated by the Hindu Law but it is not repugnant to its principles, and if there is a well established custom in its support, it may override the general provisions of that law.'
9. It may be mentioned that their Lordships of the Privy Council in Gopi Krishna v. Mst. Jaggo, 63 Ind App 295 : (AIR 1036 P.C. 198), in which the judgment of the Board was delivered by Sir Shadi Lal accepted the existence and validity of a custom prevailing among the Vaishya community according to which abandonment or desertion by the husband brought about a dissolution of marriage. It is worth noticing that no such plea was taken that a custom allowing dissolution of marriage among persons governed by Hindu Law could not be given effect to as it was wholly opposed to the spirit of Hindu Law or that Hindu Law admitted of no exception to the strict rule that a Hindu marriage could never be dissolved except on one or two limited grounds which were well recognised. Thus the rule that by custom there could be dissolution of a Hindu marriage has the imprimatur of the Privy Council.
10. In the present case the Courts below have relied upon para 19 of the riwaj-i-am prepared at the time of the settlement of 1913 in the erstwhile Malerkotla State. The question as formulated in Exhibit P. 3 related to the grounds sufficient for talak (divorce). The answer given was that if the woman was immoral or if she changed her religion that was a sufficient ground for talak viz, leaving her. No instances were given in support of this custom or in rebuttal of the same. The learned District Judge took the view following various authorities, and, particularly, the Privy Council decisions reported in Beg v. Allah Ditta, 45 Pun Re 1917: (AIR 1916 P,C. 129) and Mt. Subbani v. Nawab, AIR 1941 P.C. 21 that the initial presumption was in favour of the entries given in the riwai-i-am irrespective of the question whether or not the custom as recorded was in accord with the general custom.
The learned District Judge did consider the question that the custom in question affected the rights of the females adversely hut all the same in the absence of any evidence in rebuttal he drew a presumption in its favour. He considered the entire evidence produced in the present case which showed that Bhan Kaur was living in adultery with the brother of Ishar Singh and he came to the conclusion that a case had been made out for dissolving the marriage in accordance with the custom embodied in Exhibit P. 3.
11. The learned counsel for the petitioner argued that the special custom set up in the present case had not been proved. In view of the detailed discussion of this question by the learned District Judge, I am not inclined to interfere in revision with the decision given by him on this point. The other contention that has been raised is that even if there is a custom which gives option to one spouse alone to seek divorce on tbe ground of immorality that custom is opposed to public policy and ought not be recognised. My attention has been invited to 2 decisions reported in Thangam-mal v. Gengayarnmal, AIR 1945 Mad 308 and Sita-ram Ranoo v. Demai, AIR 1949 Nag 14. Thesecases, however, were of entirely different type and were distinguishable.
12. Lastly it is strenuously urged by S. Tirath Singh on behalf of the petitioner that mere had been a great deal of delay in the matter of filing of this suit by Ishar Singh who knew all the time that his wife Bhan Kaur was living with Baggu. He referred to a case, H.W.G. v. Mrs. H.W.G., 13 Ind Cas 617 (All), which adopted the view that discretion should not be exercised in favour of the husband asking for dissolution of marriage when his wife had been living in adultery for a number of years to his knowledge. Neither this point nor the illegality or invalidity of the custom on the grounds mentioned above were ever raised at any previous stage of the case, and it is not possible for me in a petition for revision to decide these matters for the first time.
13. The revision petition is, therefore, dismissed but there will be no order as to costs.