DARBARA SINGH Vs. JASWANT KAUR

JUDGEMENT

(1.) I. The litigious journey so far

(2.) The substantial questions of law framed at the time of arguments are reproduced to secure an appropriate focus for consideration in this case:-

(3.) I will take up the issue of the validity of the karewa marriage, for, that would decide the issue of whether the 1st plaintiff could claim herself to be the owner of the property as a heir to Harnek Singh and exclude the 8th defendant from claiming the property as a collateral heir. The learned counsel appearing on behalf of the appellant would contend that after the death of Harnek Singh, there were proceedings before the revenue authorities for mutation of entries in relation to the land with the village records and at that time, specific evidence was elicited from the 1st plaintiff that there had been no ceremony of marriage. The 1st plaintiff knew about the futility of the claim to the status as a wife, if the ceremony of marriage had not been proved and, therefore, a new case was introduced as an afterthought in suit to make it appear as though that there had been a form of marriage and karewanama was written subsequently. The learned counsel would, therefore, argue that the marriage was not valid and the counsel would refer me to a decision of the Supreme Court in Bhaurao Shankar Lokhande and another Versus State of Maharashtra and another, 1965 AIR(SC) 1564 that held that the word "solemnize" appearing under the Hindu Marriage Act would mean in connection with the marriage, 'the celebration with proper ceremonies and in due form'. It followed, therefore, that unless marriage was 'celebrated and performed with proper ceremonies and due form', it could not be said to be 'solemnized'. I must immediately point out that this decision was rendered in the context of a prosecution of a criminal offence of Section 494 IPC. The standard of proof of what would qualify as bigamy and the validity were, therefore, considered from the extracting standard of proofs necessary in order that second marriage was taken as established for an offence of bigamy. This ought not to be necessarily taken as laying down a proposition that for a karewa form of marriage, there were any particular ceremonies and rituals that were required to be established in order that a claim to status as a wife was possible. This was however brought out in yet another case that went to Supreme Court from this court and dealt with in Surjit Kaur Versus Garja Singh and others, 1994 AIR(SC) 135. The Court held that mere living together as husband and wife would not confer the status as such and if the nature of ceremonies performed were not brought out, the customary form of marriage cannot be upheld. In that case, there was evidence that apart from the karewanama, the ceremonies of marriage were performed in the village and gur was distributed. The Supreme Court confirmed the judgment of the High Court and held that the marriage that is proved must be a marriage which was a valid one and in that case that a valid marriage had not been proved. I would find this judgment as not laying down any law that any detailed ceremonies were required or that any particular ceremony had been found as necessary. The case must be confined to treatment of fact by the High Court as not establishing a marriage and the Supreme Court itself as not disturbing the finding of the High Court. As a principle of law, all that could be stated is that the ceremony shall be that which custom recognized.