THANGAMMAL Vs. GENGAYAMMAL

JUDGEMENT

(1.) Two questions are raised in this appeal. One is whether the third defendant was in fact divorced by her husband, Peruma Goundan, within six months after the marriage of the parties, and the second, whether the custom alleged in the plaint is true and valid. On both the points the two lower Courts are in agreement and the questions are found in favour of the plaintiff. It has been found that in fact there was a divorce as alleged in the plaint and as spoken to by the plaintiff's witnesses. A number of witnesses were called and they spoke to the details as to what occurred at the time of the alleged divorce. Both the Courts have accepted their evidence and there is no reason to differ from the estimate of their evidence by the lower Courts.

(2.) The substantial question that is argued is that the custom which is proved is not valid in law. The custom that is actually proved is that if, on account of the disagreement between the parties, both the parties desire a divorce, then the divorce can be got in the manner spoken to by the plaintiff's witnesses, namely, the parties have to approach the headman and other relations, certain amounts are paid, the tali or the sacred thread tied round the wife's neck by the husband is taken off and given back to the husband. These are the formalities of divorce spoken to by the witnesses and that is the finding as to the custom.

(3.) It is argued by Mr. S.S. Ramachandra Aiyar, the learned advocate for the appellant, that what is spoken to by the plaintiff's witnesses is that it was a divorce sought by the husband and forced upon the unwilling wife; in other words, that it is a divorce brought about by the husband against the wish of the wife. There is no support for this in the evidence. The defendant's case is that there was no divorce at all and they have not pleaded as they might have pleaded in the alternative that even if there was a divorce, it was one brought about against the wish of the wife. But there is no such alternative plea and no such evidence adduced by the defendants. What is argued is that the evidence adduced by the plaintiff points to a case of divorce against the wish of the wife. On being tajsen through the entire evidence, I find no support for this suggestion. All the witnesses say that it was the husband who sought the divorce and went to the chief man; and later on, the chief man sent for the wife and asked her whether she would live with her husband. She refused, gave the money which, according to custom, should be paid, untied her tali and gave it to her husband. This is, therefore, a case in which the divorce was with the consent of both and not one brought about against the wish of the wife. If these are the incidents of the custom, there is no reason to hold that it is against the wish of the wife. There is no authority placed before me to hold that even if a divorce is sought by both the parties, they being unable to live together, such a divorce is invalid. In Mayne's Hindu Law, Section 37(page 72) such a divorce, it is pointed out, is legal. It is only where the divorce is enforced against the wish of the wife, that the custom permitting a divorce may be illegal. The second appeal is dismissed with costs.