SESPURI Vs. DWARKA PRASAD

JUDGEMENT

(1.) THE only question in issue in this case is whether the plaintiff, Sespuri, is the legitimate son of one Sidha. Sidha was a Thakur by caste and he contracted a union with a wdman of the Brahman caste, from which the plaintiff Sespuri is alleged to have been born. Such union is prima facie forbidden by the Hindu Law. It can-not amount to a legal marriage, and its offspring cannot be said to be legitimate issue. In the case of Padam Kumari v. Surai Kumari 18 A. 458 : A.W.N. (1906) 83 : 3 A.L.J. 209 a Bench of this Court held that a marriage between a man of the Brahman caste and a woman, who was a Chhattrior Rajput by caste, is not lawful in these Provinces and the issue of such marriage is not legitimate. THE present case is a very much stronger one, because even those ancient writers who have hesitated altogether to condemn a marriage between a man of higher caste and a woman of lower caste, have been clear in their condemnation of such a union as the present, where the position is reversed. It is contended, however, that there is one circumstance which takes the present case outside of the ordinary rule. THE plaintiff s father Sidha had joined a religious order. He had become a Nihang Goshain, and the plaintiff s mother also had joined that order before their union. This might possibly help the plaintiff if he could prove a valid custom binding upon all Nihang Goshains, which recognises as lawful a marriage between any man and any woman belonging to that order whatever their previous position in the world might be. THE direct contrary is the case. THE Nihang Goshaim are a celibate order, who are not supposed to marry at all. I fail to see, therefore, how the fact that the plaintiff s father and mother violated one rule, which was binding upon them as members of a religious order, can excuse or validate their union in defiance of a general principle of Hindu Law. I concur in the finding of the lower Appellate Court against the legitimacy of the plaintiff and dismiss the appeal with costs including fees on the higher scale.