Case: Gurdit Singh Vs. Mst. Angrez Kaur Alias Gej Kaur Alias Malanand Others

a custom in the neighbouring districts, which surround the Jullundur District all around, is certainly a relevant consideration for an inference that such a custom may be prevalent in the Jullundur District also, particularly in view of Rattigans opinion that the custom is primarily tribal though also local. If the custom existed among the tribes of Hindu Jats in all the districts surrounding the district of Jullundur, it is probable that a similar custom exists in the district of Jullundur also. The other piece of evidence relied upon was the statements of number of witnesses examined to prove that not only such a custom existed, but also that instances were available showing that there had been divorces in recent times. Respondent No. 1 has examined nine witnesses in this behalf. The learned District Judge, in his report, did not place full reliance on the testimony of these witnesses, but their evidence has been accepted by the High Court. On behalf of the appellant also, a number of witnesses were examined to prove the non-existence of a custom of divorce. It, however, appears that the appellants own witnesses belied his case. Several of those witnesses clearly admitted that in this district a custom did exist permitting a husband to divorce his wife. Three of the witnesses, Bhag Singh, Karam Singh and Kartar Singh, who were examined on behalf of the appellant, in their examination-in-chief itself, mentioned a custom under which a Zamindar could divorce his wife, though they added that, if the husband divorces his wife, the wife cannot contract Chadar Andazi during the life-time of her husband. Ujagar Singh, another witness, in his cross-examination clearly admitted that the husband can divorce his wife, but a wife cannot divorce her husband. He can divorce her both verbally as well as in writing. Similarly, Niranjan Singh, another witness, stated that a husband can divorce his wife, but a wife cannot divorce her husband. Gurdit Singh, in his examination-in-chief, mentioned that a husband and wife could live separate from each other and, in such a case, the wife could not contract Chadar Andazi during the life-time of her first husband, and added that, if she contracted Chadar Andazi, she could not inherit the property of her second husband. In cross-examination, he stated that"there no custom among us for divorcing the wives with mutual consent." All these witnesses examined on behalf of the appellant himself thus proved the existence of a custom under which a Hindu Jat in the district of Jullundur could divorce his wife, though all of them added a qualification that, in case a wife is divorced by a Hindu husband, she is not entitled to a second marriage during the life-time of her first husband. They all admit that a custom permitting a Hindu Jat to divorce his wife does actually exist in the district of Jullundur. Some of them, at some stages of their evidence, tried to distinguish the right of a husband by saying that he could desert his wife or that there could be separation between the husband and the wife, but, at other stages, they admitted in clear words that the custom recognised included the right of the husband to divorce his wife. Thus, the record in the Riwaj-i-am that there is no such custom of divorce among the Hindus of the Jullundur District is proved to be incorrect not only by the evidence of the witnesses examined on behalf of respondent No. 1, but even from the evidence given by the witnesses of the appellant. In these circumstances, we hold that there is no force at all in the submission of the learned counsel that this Riwaj-i-am could be held to be reliable in so far as it records the absence of the custom, on the mere ground that in earlier cases the unreliability of this Riwaj-i-am was found in regard to record of customs relating to other matters. 11. There is no doubt that the witnesses examined on behalf of the appellant, while admitting the existence of a custom permitting a Hindu husband to divorce his wife have added a qualification that, if such a divorce is brought into effect by a husband, the wife cannot legally contract a second marriage during his life-time. This limited custom sought to be proved by these witnesses does not find support from the Riwaj-i-am, nor is it in line with the, principles laid down by Rattigan in his book on Customary Law. All that he stated in paragraph 74 of his book was that"until the former marriage is validly set aside, a woman cannot marry a second husband in the life-time of her first husband." We have already held that, even according to the witnesses examined by the appellant, a custom exists which permits a valid divorce by a husband of his wife and that would dissolve the marriage. On the dissolution of such a marriage, there seems to be no reason why the divorced wife cannot marry a second husband in the life-time of her first husband. It also appears to us incongruous to accept the proposition put forward on behalf of the appellant that, though a wife can be divorced by her husband, she is not at liberty to enter into a second marriage and thus secure for herself means for proper living. In these circumstances, the High Court committed no error in accepting the evidence given by witnesses examined on behalf of respondent No. 1 who stated that the custom as prevailing in the Jullundur District not only permitting divorce, but also recognised the validity of a second marriage of the divorced wife even in the life-time of her first husband.The High Court was further right in relying on the instances proved by the evidence of these witnesses of respondent No. 1 showing that a number of divorced wives had actually contracted second marriages in the life-time of their husbands and these marriages were recognised as valid marriages by the members of their community.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]are unable to find any proposition laying down that, in the district of Jullundur, there is any custom among Hindu Jats permitting divorce as claimed by respondent No. 1. In fact, Rattigan leaves the question open by saying that it has been doubted whether such a custom exists in the Jullundur District. He also mentions the Riwaj-i-am of Jullundur District, but does not attach much importance to it on the ground of its being unreliable. Rattigans book on Customary Law, in these circumstances, appears to us to be of little help in arriving at a conclusion about the existence of a custom on divorce amongst the Jats in Jullundur DistrictIn answer to the questions about the grounds on which a wife may be divorced whether change of religion is a sufficient cause and whether a husband may divorce his wife without assigning any cause, the record states that among all Muhammadans except Rajputs - the Muhammadan Law is followed ; and a husband can divorce his wife without assigning any reason. Among the Muhammadan Rajputs and all Hindus-no divorce is recognised. But an exception is mentioned that the Kambohs of the Nakodar Tehsil also divorce their wives. They are not required to assign any cause. In answer to the question as to what are the formalities which must be observed to constitute a revocable or an irrevocable divorce, it was stated that among Hindus there is no divorce except among Kambohs of the Nakodar Tehsil who give talaq by executing a written deedIt, however, appears that the Riwaj-i-am of Jullundur District is unreliableThere are two reasons why we must reject this contention. The first is that the Riwaj-i-am having been found unreliable in respect of two customs, the inference clearly follows that it was not drawn up carefully and correctly and, consequently, it would not be safe to rely even on other aspects of the Riwaj-i-am. The second, and which is the more important reason, is that, in this particular case which is before us, the evidence tendered by both the parties shows that this Riwaj-i-am has incorrectly recorded the custom about the right of a Hindu husband of this district to divorce his wifeIt, however, appears that the appellants own witnesses belied his case. Several of those witnesses clearly admitted that in this district a custom did exist permitting a husband to divorce his wife. Three of the witnesses, Bhag Singh, Karam Singh and Kartar Singh, who were examined on behalf of the appellant, in their examination-in-chief itself, mentioned a custom under which a Zamindar could divorce his wife, though they added that, if the husband divorces his wife, the wife cannot contract Chadar Andazi during the life-time of her husband. Ujagar Singh, another witness, in his cross-examination clearly admitted that the husband can divorce his wife, but a wife cannot divorce her husband. He can divorce her both verbally as well as in writing. Similarly, Niranjan Singh, another witness, stated that a husband can divorce his wife, but a wife cannot divorce her husband. Gurdit Singh, in his examination-in-chief, mentioned that a husband and wife could live separate from each other and, in such a case, the wife could not contract Chadar Andazi during the life-time of her first husband, and added that, if she contracted Chadar Andazi, she could not inherit the property of her second husband. In cross-examination, he stated that"there no custom among us for divorcing the wives with mutual consent."All these witnesses examined on behalf of the appellant himself thus proved the existence of a custom under which a Hindu Jat in the district of Jullundur could divorce his wife, though all of them added a qualification that, in case a wife is divorced by a Hindu husband, she is not entitled to a second marriage during the life-time of her first husband. They all admit that a custom permitting a Hindu Jat to divorce his wife does actually exist in the district of Jullundur. Some of them, at some stages of their evidence, tried to distinguish the right of a husband by saying that he could desert his wife or that there could be separation between the husband and the wife, but, at other stages, they admitted in clear words that the custom recognised included the right of the husband to divorce his wife. Thus, the record in the Riwaj-i-am that there is no such custom of divorce among the Hindus of the Jullundur District is proved to be incorrect not only by the evidence of the witnesses examined on behalf of respondent No. 1, but even from the evidence given by the witnesses of the appellant. In these circumstances, we hold that there is no force at all in the submission of the learned counsel that this Riwaj-i-am could be held to be reliable in so far as it records the absence of the custom, on the mere ground that in earlier cases the unreliability of this Riwaj-i-am was found in regard to record of customs relating to other matters11. There is no doubt that the witnesses examined on behalf of the appellant, while admitting the existence of a custom permitting a Hindu husband to divorce his wife have added a qualification that, if such a divorce is brought into effect by a husband, the wife cannot legally contract a second marriage during his life-time. This limited custom sought to be proved by these witnesses does not find support from the Riwaj-i-am, nor is it in line with the, principles laid down by Rattigan in his book on Customary Law. All that he stated in paragraph 74 of his book was that"until the former marriage is validly set aside, a woman cannot marry a second husband in the life-time of her firste have already held that, even according to the witnesses examined by the appellant, a custom exists which permits a valid divorce by a husband of his wife and that would dissolve the marriage. On the dissolution of such a marriage, there seems to be no reason why the divorced wife cannot marry a second husband in the life-time of her first husband. It also appears to us incongruous to accept the proposition put forward on behalf of the appellant that, though a wife can be divorced by her husband, she is not at liberty to enter into a second marriage and thus secure for herself means for proper living. In these circumstances, the High Court committed no error in accepting the evidence given by witnesses examined on behalf of respondent No. 1 who stated that the custom as prevailing in the Jullundur District not only permitting divorce, but also recognised the validity of a second marriage of the divorced wife even in the life-time of her first husband.The High Court was further right in relying on the instances proved by the evidence of these witnesses of respondent No. 1 showing that a number of divorced wives had actually contracted second marriages in the life-time of their husbands and these marriages were recognised as valid marriages by the members of their community.