I.N. Modi, J.
1. This is a civil regular second appeal by the plaintiff Kishenlal in a suit for 'declaration which was decreed by the trial Court but on appeal dismissed by the learned Senior Civil Judge, Jaipur City, by his judgment dated 24-4-1961.
2. The material facts leading upto this appeal are these. It is common ground between the parties that the plaintiff (husband) and the defendant (wife) were married to each other when they were both minors of about six or seven years of age. According to the plaintiff, this marriage took place on 20-4-1940. The plaintiff's case then is that his parents sent for the defendant to live in their house when she had reached the age of 13 years and she came but she did not allow him to consummate the marriage and soon left for her parents' house. Thereafter the defendant's mother died near about 1948 and the defendant started living with her maternal grand-mother. The case of the plaintiff further is that the defendant developed an illicit intimacy with one Kallu who lived in the neighbourhood of her grand-mother's house; the plaintiff tried his utmost to bring her to reason but she was adamant. Thereupon, according to the plaintiff, he complained to the caste Panchayat and as there was a custom of divorce in their community, a meeting of the Panchayat was called on 6-11-1952. At that meeting, the defendant and her grand-mother were summoned by the Panchayat and the Panchas tried their level best to create rapprochement between the parties but the defendant resolutely refused to go to the plaintiff's house and live with him, and, therefore, the Panchas granted him a divorce. It may be mentioned at this place that according to the averment made in paragraph 7 of the plaint, the defendant had herself submitted to the Panchayat that she would have to lead a very unhappy life in her Sasural and therefore, the divorce be allowed to her. Relying on this divorce which was allegedly granted to him by the Panchayat. the plaintiff took a second wife on 4-7-1957. The case of the plaintiff in a nut-shell, therefore was that the defendant had ceased to be his wife from 6-11-1952, when the divorce had been granted to him from her by the taste Panchayat The plaintiff further explained that the occasion for the institution of the present suit arose because in the meantime the defendant had made an application for grant of maintenance against him under Section 488 Cr. P. C. and that application had succeeded right upto the High Court But by its order dated 10-9-1958, this Court had left him free to file a suit if he liked to obtain a declaration that be had divorced his wife eight years ago as alleged by him, in which case the order of maintenance passed by the criminal Court would become inoperative. Consequently, the plaintiff filed the suit out of which this appeal arises on 29-10-1958.
3. The defendant resisted the suit. The principal pleas raised by her were that there was no custom of divorce in her community and further that neither the Panchas had granted any divorce to the plaintiff nor she had given her consent to the same.
4. The trial Court held that there was a custom of divorce in the community of the parties and that the Panchas had granted a divorce to the plaintiff and consequently the marriage between the' parties stood dissolved, and in this view of the matter, decreed the plaintiff's suit. On appeal by the defendant, the learned Senior Civil Judge reversed the judgment and decree of the trial Court and dismissed the plaintiff's suit. Aggrieved by this decision, the plaintiff has now come up in second appeal to this Court.
5. At the very outset, I should like to point out that this case has been grossly misconducted by the parties and in particular on behalf of the plaintiff in the Courts below. The most important issue in the case was that of divorce and support for' this was mainly found on an alleged custom. In these circum stances, it was incumbent upon the plaintiff to state with precision and clarity what that custom was. Unfortunately this obvious re-quirement was not acted upto, and all that the plaintiff stated in paragraph six of his plaint was that in the community of the Mehras to which the parties belong, there was an ancient custom of divorce and the only particular of this custom that was mentioned was that the divorce could be obtained from the caste Panchayat. In other words, the case of the plaintiff seems to have been simply this that when a matter like this was brought to the notice of the Panchayat and the Panchayat so thought fit, it could grant a divorce to any of the parties concerned. The pleading of the defendant in reply was equally unsatisfactory and what she stated was that there was no 'special custom' of divorce in her community. The exact expression used by her in this connection is as follows.
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Curiously enough, however, when the defendant came into the witness-'box, she herself admitted that there was a custom of divorce in her community. And according to her, the custom was that the matter had to be taken to the caste Panchayat and if both parties concerned in the marriage gave their consent to divorce, the same could be granted.. As the pleadings were bad so were the issues. And the only relevant issue which the trial Court framed in that connection was whether there was a custom of divorce in the community of the parties whereas the issue should have been what precisely, if any, was the custom of divorce in the community and whether it was Droved.
6. This brings, us to the evidence of custom which was led by the plaintiff to prove his case.
According to the plaintiff (P. W. 1) the Panchayatwould seem to have an absolute right to grant divorce if it so thought fit in the circumstances of a particular case. P. W. 2 another Kishenlal who appears to be a close relation of the plaintiffs second wife does not give any particulars about the custom alleged hi the case, and merely mentions a number of instances in which divorce was granted,by the caste Panchayat. P. W. 3 Madanlal is the next witness. His evidence is that a fee of Rs. 1/4 is fixed (sic) in the Panchayat whereupon it calls a meeting and invites both parties to the dispute and tries to settle the matter amicably : but if that does not become possible, the divorce is granted. The evidence of this witness further is that Patel Shurji who was the leader among the Panchas after all attempts to create an understanding between the parties had failed told both the plaintiff and the defendant that they could re-marry and that when the defendant would so re-marry, she could give the quit money to the plaintiff. The next witness onthe point is P. W. 4 Roduram. According to him, whenever the Panchayat granted a divorce, a writing was executed between the parents of the parties concerned. It is remarkable that according to this witness, Mst. Prabhu the defendant did not give her consent to the divorce nor she said 'no' to it. The next witness Nathulal P. W. 5 also deposed that divorce could be granted by the caste Panchayat when it was approached in the matter. According to this witness, no writing was necessary for granting a divorce. He also deposed that the defendant had herself submitted to the Panchayat that divorce be allowed between the parties. The custom mentioned by P. W. 6 Kedar is that whenever a case of divorce arises, the Panchas assemble together they send for the husband and the wife, and inquiries are made from them if they want to live together, and if one of them expresses his clear disinclination to live with the other, then the caste Panchayat can grant a divorce. This witness does not support the story of the defendant herself having asked for a divorce. All that he stated was that the defendant had told the Panchayat that shedid not want to live in her Sasural. The last witness on the point is P. W. 7 Nathulal, and, according to the custom simply was that if in spite of the efforts of the Panchayat to create a rapproach-merit between the parties they did not agree to live together, the Panchayat would allow a divorce.
7. The first question that falls for decision in this state of the evidence is whether the plaintiff has succeeded in establishing the custom relating todivorce on which he relies. And then a further question would arise whether the kind of custom, which might be held to have been established on the evidence led in this case, can be accepted asreasonable by a Court of law.
8. Now so far as the first aspect of the controversy is concerned, it clearly seems to me that the plaintiff cannot be held to have succeeded in establishing the custom alleged by him in his plaint or in his deposition at the trial. His witnesses have given various versions of this custom to which I have made detailed reference above, and therefore, I am unable to hold on such evidence that the requisite custom has been established in this casewith any definiteness or certainty, which is one of the essential ingredients of a valid custom in law.
9. Again, assuming but not conceding that a custom has been established in this case to this extent that whenever a dispute between the spouses arises and a divorce is sought for, the matter can be taken to the caste Panchayat, and the latter sends for the parties and tries to create an understanding between them, and if such understanding does not become possible, then the Panchayat can grant a divorce, thus dissolving the marital tie between them, irrespective of the consent of both the parties concerned; or, in other words, the custom is that whenever the Panchayat thinks fit to grant a divorce in the circumstances of a given case, it can grant one irrespective of the mutual consent of the parties.
10. The question then arises whether such a custom should be upheld as reasonable. I have given my careful and anxious consideration to this question and concur in the finding of the Court below that such a custom would be entirely unreasonable and cannot be upheld by a Court of law. It has been held in Narayan Bharthi v. Laving Bharthi, ILR 2 Bom 140 that a caste custom which permits a woman to desert her husband with a view to marry again without her husband's consent is void for immorality. It has also been held that a custom which permits a dissolution of the marriage tic by either husband or wife against the wish of the divorced party, the sole condition attached being the payment of a sum of money fixed by the caste, is opposed to public policy. See Keshav Hargovan v. Bai Gandi, AIR 1915 Bom 107. A nearer case to the one in hand is reported as Reg v. Sambhu Raghu, ILR 1 Bom 347 where it was held that the Courts of law would not recognize the authority of a caste to declare a marriage void or to give permission to a woman to re-marry. Again in Bai Ganga v. Emperor, AIR 1916 Bom 97 it was held that the Courts do not recognize the authority of a caste to dissolve a marriage or to declare it void or to give permission to a married woman to re-marry.
11. I am in respectful agreement with this statement of the law. The principal reason, which inclines me to accept this view as correct is that a custom by which a marriage tie may fall to be dissolved by a mere fiat of the caste Panchayat, without more, which is not unoften torn by party-factions and internal jealousies is apt to work very oppressively and capriciously, the more so as the affairs of such Panchayats are usually carried on with no semblance to rules of procedure or law or even natural justice. I have no manner of hesitation in laying down that a custom, by which the subsistence or dissolution of the marital tie, the consequence of which would indeed be momentous on the parties concerned, is left to depend upon the mere caprice or whim of those assembled at the Panchayat meeting, is intrinsically contrary to reason and would be definitely opposed to public policy. In the view which I have felt persuaded to accept, therefore, I am unhesitatingly disposed to hold that the custom on which the plaintiff seeks to rely in the present case cannot be countenanced by a Court of law, and I hereby decline to recognise it.
12. Confronted with this position, learned counsel for the plaintiff strenuously contended that there was ample material on the record to hold that the divorce in this case had been agreed to by both parties concerned before the caste Panchayat, and that even ii the plaintiff's case on the question of custom be not held acceptable, there should be no obstacle in the way of the Court to accept the story of divorce on the ground of mutual consent given by both parties before the meeting of the caste Panchayat held on the 6th November 1952. I have carefully considered this aspect of the case also and find myself unable to accept the submission of learned counsel. Even if I were prepared to construe the plaint filed by the plaintiff rather liberally, the first impediment which I find in the way of the plaintiff is that he failed to invite any specific issue on the point at the proper time. The only issue which was framed relative to this aspect of the case was that of custom and with that I have dealt at length above. This is, however, not the onlyimpediment, for I find on a careful perusal of the plaintiffs' own deposition at the trial that he has not said a word to show that the defendant had given her consent to the divorce. All that he has said is that the Panchas had sent for the defendant and her grand-mother and they had explained to the defendant that she should go and live with her husband, but she flatly refused to do so, and thereupon the Panchas announced that a divorce do come into effect and that the plaintiff might re-marry. It may be that the defendant refused to go to her husband but that might be so for a variety of reasons. And in any case, that is not the same thing as to say that she had herself prayed for a divorce before the caste Panchayat. The failure of the plaintiff to give any support to the case of consent in his deposition at the trial is a very strong factor against the acceptance of this theory even though it may be that some of the Panchas whowere examined by the plaintiff did go to the length of saying that the defendant herself had asked for her release. There is at least one witness in this connection, namely, P. W. 4 Roduram who unequivocally stated that the defendant never gave her consent to the divorce, although he has further toned down his statement by saying that she had not protested against it either. When the defendant came into the witness box, she stoutly denied that she had ever given her consent to the divorce.
13. Yet another obstacle in the way of the plaintiff so far as this aspect of the case is concerned is that I am not at all satisfied that the defendant was at all a major at the time she is alleged to have consented to the divorce. A few dates may be given in this connection. The Panchayat is said to have taken place on the 6th November, 1952. Accepting the date of the marriage between the parties as given by the plaintiff, this took place on the 20th April, 1940. Then we have it from the defendant herself that she was about five years of age at the time of her marriage. In other words, she must have been born round about 1935. On this computation, she could not have been more than 17 years of age at the time the meeting of the Panchayat took place and was still a minor. It was not possible for her to have given her consent tothe transaction of divorce, and eves if she gave any consent about which I am extremely doubtful, it was of no value in eye of law.
14. The position, therefore, is that from whichever angle one may look at this case, this appealfails and is hereby dismissed. As the parties arehusband and wife, I would leave them to bear theirown costs of this appeal.