Keshav Hargovan v. Bai Gandi

Scott, C.J:— These appeals are brought in two suits, the one being a suit for the restitution of conjugal rights, and the other a suit for dissolution of marriage. The plaintiff in the suit for restitution is the adult husband of the defendant, a minor, who has attained the age of puberty. The duty is imposed by Hindu Law upon, the wife to reside with her husband: see Tekait Mon Mohini Jemadai v. Basanta Kumar Singh. There is no evidence that he has been guilty of such conduct as would justify his wife in claiming the protection of the Court. The defence is that the defendant is no longer the plaintiff's wife and it is to obtain a declaration to that effect that the cross suit has been brought in her name. It is claimed that by virtue of a caste custom the minor wife can by the expression of her desire so to do accompanied by a payment of money, the greater part of which goes to the caste and a small portion to the unwilling husband, free herself from the marriage tie. Whether such a custom could be recognised by the Court in the case of an adult wife will be discussed later in this judgment. The plea in the wife's written statement is that the marriage is a contract subject to a condition sanctioned by custom, that it may be put an end to at the wish of the wife subject to a payment of money. We cannot accept the position that marriage among Hindus is only a contract, but even if it were so, it could only be a contract when concluded between adults capable of contracting. That is not the case here, and it is probable that the child wife who is put forward as paying money for the caste and for the repudiated husband is merely a pawn in a game between those who are the real instigators of her suit and the opposite party in the caste who dispute the existence of the alleged custom.

The parties are Hindus of the Pakhali caste. It appears that, factions having broken out in the caste, and the husband and his father-in-law taking different sides, the wife is anxious to divorce the husband. She claims to be entitled to do so by virtue of a caste-custom which authorises either spouse to divorce the other, against that other's will and with or without any assignable reason, on payment of a sum of money fixed by the caste from time to time. The lower Courts have passed a decree in the wife's favour, holding that the custom set up was proved, and that it is not opposed to public policy. Having regard to the recency of the caste resolutions purporting to affirm this custom, to the incompetence of the caste to pronounce marriages void, and to the recitals in various deeds to the effect that these farkats were executed with the consent of both spouses, we doubt very much whether the inference that the alleged custom is legally established can be supported by the evidence on the record. But we prefer to put our judgment on the broader ground that the alleged custom, assuming it to be proved, must be regarded as immoral or opposed to public policy within the meaning of section 23 of the Indian Contract Act. In our opinion this view is apparent from a consideration of the mere character of the custom set up, and it is also to be supported by the decisions of this Court.

The custom pleaded is, as we have said, a custom by which the marriage tie can be dissolved by either husband or wife, against the wish of the divorced party, and for no reason but out of mere caprice, the sole condition attached being the payment of a sum of money fixed by the caste. That sum admittedly is liable to alteration from time to time at the will of the caste: Rs. 55 today, it may be Rs. 5 tomorrow. We need only say that in our opinion it is impossible for the Court to recognise any such custom as this; it is opposed to public policy as it goes far to substitute promiscuity of intercourse for the marriage relation, and is, we think, equally repugnant to Hindu Law, which regards the marriage tie as so sacred that the possibility of divorce on the best of grounds is permitted only as a reluctant concession. The requirement of the payment of a sum of money, on which the learned District Judge relies, seems to us to be immaterial, and we can see no substantial distinction between the recognition of this custom and the declaration that the tie of marriage does not exist among Hindus of the Pakhali caste.

As to the cases, it was laid down as early as 1876 in Reg. v. Sambhu Raghu that “the Court does not recognise the authority of the caste to declare a marriage void, or to give permission to a woman to remarry.” It is true that this ruling was hot followed in Jukni v. Queen-Empress, but there the learned Judges found that the husband had relinquished his wife, so that this decision is of no authority on the present facts. In Reg. v. Karsan Goja and Reg. v. Bai Rupa, which were criminal cases, the question was whether a woman of the Talapda Koli caste was punishable under section 494, Indian Penal Code, or Whether she could successfully plead a caste-custom under which a married woman was permitted to leave her husband and contract a second marriage without the husband's consent; and the Court said that “such a caste-custom, even if it be proved to exist, is invalid, as being entirely opposed to the spirit of the Hindu Law.” That decision was given in 1864, and, so far as we are aware, has never since been doubted. It is, we think, direct authority in favour of the view that the custom which is set up in the present appeal, and which in essentials is indistinguishable from that pleaded in the case of 1864, cannot be recognised by the Court. The decision in Reg. v. Korsan Goja and Reg. v. Bai Rupa was approved and followed by Sir M. Westropp C.J and Melvill J. in Narayan Bharthi v. Laving Bharthi. We may refer also to Uji v. Hathi Lalu, decided in 1870, where it was held that a custom which authorised a woman to contract a second marriage without a divorce, on payment of a certain sum to the caste, was an immoral custom which should not be judicially recognised. The custom in the present case seems to stand on no higher position; for if the mere payment of money to the caste cannot serve to validate a remarriage without a divorce, the same reasoning would make it insufficient to validate a divorce without the consent of the other spouse, as the effect in the dissolution of the marriage bond would be substantially the same in both cases.

On these grounds we are of opinion that in the wife's suit for dissolution of marriage the appeal must be allowed and the suit dismissed with costs throughout. Mr. Gokuldas for the wife has read affidavits declaring that since the lower Court's decree the wife has contracted a second marriage with another man, but that fact appears to us to have no relevance to the only question raised in the appeal, the question, namely, whether she was entitled to divorce her first husband by virtue of the caste-custom.

In the husband's suit for restitution of conjugal rights, the only defence now made is the divorce based on the alleged custom, and, since that fails, the suit must be decreed with costs throughout.

Decrees reversed.

J.G.R