JINA MAGAN PAKHALI Vs. BAI JETHI

JUDGEMENT

(1.) THIS appeal arises in a suit by the plaintiff-appellant against his wife for restitution of conjugal rights. The only question in the appeal is whether the plea of the defendant that she has already been divorced from the plaintiff has been established. The lower appellate Court has held, differing from the trial Court, that the defendant had been validly divorced by the plaintiff according to the custom of the caste and that the latter was not, therefore, entitled to the relief prayed for.

(2.) THE finding of the lower appellate Court on the evidence is that both the parties belonging to the Pakhali caste of Ahmedabad were married to each other when they were children, that on August 17, 1935, there was a meeting of the caste panch where a divorce was granted with the consent of both the parties and two mutual documents were executed by the brothers of the plaintiff and the father of the defendant as the parties were considered to be minors. On the question of minority there is some confusion in the judgment of the lower Court where at one place they are described as minors and at another place the husband is described as a major. It appears from the certificates of birth produced in evidence that the husband as well as the wife had finished eighteen years of age when the divorce was granted. In the eye of law, therefore, they must be treated as majors. THE defendant had, however, pleaded in the written-statement that according to the custom of the caste if either the husband or the wife had not attained the age of twenty-one, a petition was made to the caste on their behalf by their guardians and that the guardians can ask for or give a divorce on behalf of the minors. That point, however, is not material in view of the fact that on the finding of the lower Court the husband, who was above eighteen years of age and capable of giving consent, was1 present at the meeting and did give his consent asked for by the defendant's father on her behalf. THE evidence of the headman of the caste, which has been believed by the lower Court, shows that the husband duly gave his consent, but he said that the writing would be signed by his elder brothers who were present there. It is true that there is no specific finding as to whether the wife gave her consent, but there would be no question of that in view of the fact that the defendant was also present in the caste meeting and her father himself wanted the divorce for his daughter on account of desertion as well as on the ground of the marriage being ill-matched. THE learned Judge, therefore, on this evidence as well as on the several instances of custom relied upon on behalf of the defendant, held that the custom had been proved and that the wife having been validly divorced from the husband, the plaintiff was not entitled to restitution. On behalf of the plaintiff much reliance was placed in the lower Court on the decision of this Court in Keshav Hargovan v. Bai Gandi. (1915) I.L.R. 39 Bom. 538, s.c. 17 Bom. L.R. 584, That was a case of parties of the same caste in the same town. It was held there that a custom stated to exist among Hindus of the Pakhali caste by which the marriage tie can be dissolved 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, cannot be recognised by the Court as it was immoral or opposed to public policy as well as repugnant to Hindu law. THE previous case law on this point was reviewed, and the ground of the decision is that the caste cannot give a divorce without the consent of the party which is going to be divorced. Undoubtedly that is a correct principle. THE caste has no jurisdiction to force a divorce upon an unwilling party. But the case would be otherwise where the party against whom divorce is sought according to custom gives his or her consent and the consent is given in the presence of the caste panch. All the previous cases discussed in Keshav Hargovan v. Bai Gandi, and relied upon here also were either civil or criminal cases in which the wife remarried without a valid divorce in the sense that it was not granted with the consent of the husband. But it seems to me that in those castes where the custom of divorce exists and where the consent of the spouse, who is to be divorced, has been proved, it would be permissible for the other spouse, if she is the wife, to remarry, and such custom of divorce cannot, in my opinion, be regarded as contrary to Hindu law.

(3.) IT is next argued that the lower Court was wrong in holding the custom proved in this particular community. IT is not clear on the evidence as to whether the persons belonging to the Pakhali caste are shudras or kshatriyas. Some have described themselves as Rajput Pakhalis. In Borrodaile's Gujarat Caste Rules, Vol. II, there appears to be a statement to the effect that in this Pakhali caste there was no system of natra, i.e. re-marriage, during the husband's life-time, and that it is not the practice for a wife to dissolve the marriage tie during the husband's lifetime. In the book on Tribes and Castes of Bombay by R.E. Enthoven, Vol. I, there is a reference to the Pakhali caste. IT is there observed as follows with regard to this community (p. 180):- A husband can divorce a wife on the ground of her misconduct. A wife can divorce a husband if he ill-treats her. A divorced woman has to pay a fine of from Rs. 100 to 200 to the caste-people in order to remain in the caste.