MADHYA PRADESH HIGH COURT
( Before : T.P. Naik, J )
REWA — Appellant
GALHAR SINGH — Respondent
S. A. No. 272 of 1957
Decided on : 26-04-1960
Hindu Marriage Act, 1955 – Section 29(1)
Counsel for Appearing Parties
M. Adhikari, for the Appellant; R.S. Dabir with A.D. Deoras, for the Respondent
T.P Naik, J.—The appellant is the widow of one Dhondusingh who had filed a civil suit for partition and separate possession of his 1/6th share in that which he alleged to be his coparcenary property. The suit was decreed by the trial Court. On appeal, the District Judge, Chhindwara, set aside that decree and dismissed the suit. Hence this appeal.
2. The claim of Dhondusingh was based on the fact that Chindhusingh, his father, was born of a lawful marriage between Kanhaisingh an admitted coparcener of the joint Hindu family and one Jamna and that the question of the validity of the said marriage was also res-judicata by reason of the decision in second appeal No. 225 of 1907 dated 30-8-1907 (Exh. P-2) The defendants who were the other members of the joint family contested the suit on various grounds. They denied the legality and validity of the marriage between Kanhaisingh and jamna, as also the fact that the question was res-judicata as alleged. They further pleaded that even if the plaintiff were a member of the joint family, his claim was barred by adverse possession. The trial Court held that the marriage of Kanhaisingh with Jamna was legal and valid, that the question of its validity was concluded by the decision in second appeal No. 225 of 1907 which operated as res judicata and that the plaintiff’s claim was not barred by adverse possession. On appeal, the defence of the adverse possession was again negatived but the suit was dismissed inter alia on the grounds that:-
(1) The decision in Second Appeal No. 225 of 1907 (Exh. P-2) did not operate as res judicata.
(2) The marriage between Kanhaisingh and jamna was invalid under the Hindu law as it was a marriage between ‘Sapindas’.
(3) The alleged custom that such a marriage was permissible in the caste to which the parties belonged had not been established.
In this appeal the question of adverse possession and res judicata have not been pressed. The only question on which the appellant has rested his case is the validity of the marriage of Kanhaisingh with Jamna.
3. In order to understand the question involved, facts which are relevant for the purpose and which are not in dispute may shortly be stated:-
(1) The parties to the suit are Rajputs who are governed by the Mitakshara school of Hindu law.
(2) The genealogy of the family is as follows, [given at the end of this case (Eh)].
(3) Kodusingh was an uncle of Kanhaisingh being a first cousin of his father Gumansingh. Kodusingh died in 1885 leaving a widow Jamna.
(4) Jamna remarried Kanhaisingh in 1887 in ‘Pat form’. The fact that such a ‘Pat’ marriage in fact took place is not denied. Nor has it been disputed before me that the children of the aforesaid marriage were never treated as illegitimate. On the death of Kanhaisingh in 1915 his /2/- proprietary share in villages Ulhawadi and Murra was mutated jointly in the names of Chindusingh, the father of the plaintiff Dhondusingh, and the other sons of Kanhaisingh and in subsequent mutation also on the death of Daulatsingh, Chindhusingh and Kamodsingh the legitimacy of the branch of Chindhusingh was never questioned.
The only ground on which the remarriage of Jamna with Kanhaisingh is being sought to be invalidated is that it was a marriage between persons who were of the same ‘gotra’ and who were also ‘Sapinda’ to each other, which was against the mandatory provisions of the Hindu law.
4. Before examining the provisions which specifically deal with the remarriage of a widow, the relevant provisions of the Hindu law relating to marriage may first be noted.
The original text of Manu and Yajnavalkya regarding the prohibited degrees are as follows. According to Manu:-
1. She, who is the mother’s non-sapinda also (non-sagotra), and the father’s (non-sagotra) also (non-sapinda), is commended for the nuptial rite and holy union amongst the twice-born classes – Manu iii. 5. But sapinda relationship ceases in the seventh degree (from the mother and the father); and the Saminodaka relationship ceasses if (common) descent and name be not known – Manu v. 60.
Mitakshara reading of the first line is slightly different. According to it the first line is:
She, who is non-sapinda of the mother, and also non-sapinda of the father, is &c.
5. According to Yajnavalkya, 1, 52-53;
Let a man who has finished his studentship, espouse an auspicious wife who is not defiled by connection with another man, is agreeable, non-sapinda, younger in age and shorter in stature, free from disease, has a brother living, is born from a different gotra and pravara, and is beyond the fifth and the seventh degrees from the mother and the father respectively.- Yajnavalkya, i, 52-53.
6. The ancient texts thus appear to prohibit a marriage between ‘Sagotras’ and ‘Sapindas’ and it has been the accepted law so for. The question then arises, “what is a gotra’? According to Mitakshara on Yajnavalkya, i, 53, ” “, ‘Gotra is that which is known from tradition handed down in the family’. The Baudhayanasrauta says:-
(Visvamitra, Jamadagni, Bharadvaja, Gautam, Aur, Vasistha and Kashyapa are the seven sapes and Agastya is the eighth; the progeny of these eight sages is declared to be gotra).
It appears that these eight were supposed to be the male founders and the general conception about gotra thus is that it denotes all persons who trace descent in an unbroken male line from a common male ancestor. According to Golapchandra Sarkar, Shastri, Gotra of a person is the name of the sage from whom he or his agnate is supposed to have descended in the mile line.
7. Regarding the ‘gotra’ of a woman on marriage P. V. Kane in the History of Dharmasastra says at pages 466-467:-
“There is a great deal of discussion in the Smritis and nibandhas on the gotra of a woman. Asv, gr. S. I. 8. 12 is interpreted by some as laying down that husband and wife become of one gotra one year after marriage Laghu Harita appears to refer to this and also proposes an option that she takes up the husband’s gotra immediately after marriage. Yama 86 and Likhita 25 say that after marriage on the 4th night a bride becomes one with her husband as to gotra, pind and asauca, while Yama 78 and Likhita 26 state that she loses her father’s gotra on taking the seventh step. The Mit. on Yaj I. 254 has a long note on this subject, states that there are two views and finally reaches the conclusion that a woman retains her father’s gotra even after marriage for pindadana, if she was a puthika or was married in the asura and the following forms, but if she was married in the brahma and other approved forms, there was an option viz, pinda may be offered to one’s mother by one’s father’s gotra or by her father’s gotra according to family usage. Vide also Apararka pp. 432, 542, Sm C. I. p. 69.”
Jamna therefore on her marriage with Kodusingh acquired her husband’s gotra.
8. Similary, ‘Pinda’ has several meanings but so far as the Hindu Law is concerned, it has been used in two senses; (a) a relation connected with the same body and (b) a relation connected through funeral oblations of food. In the Mitakshara, however, it is used in the first sense viz meaning one of the same body i.e. a blood relation. Literally, it would thus include all blood relations howsoever distant but the stages have curtailed their meaning by technical limitation and when used without qualification it signifies agnatic relations only i. e. blood relations of the same Gotra ” ” being excluded from this category as these are classed as ‘Bandhus.’ According to Mitakshara, ‘Sapinda’ relationship arises from connection with parts of the body so that a son’s Sapinda relationship with the father arises by reason of connection with the parts of the father’s body. As regards the wives, Mitakshara says that they become Sapindas of their husbands by reason of their forming one body with those of their husbands:
“similarly (arises the Sapinda relationship) of the husband with the (Patni) lawfully wedded wise; by reason of (they together) forming one body, (i e. one person hence the wife is called half the body of the husband); similarly also (arises the Sapind relationship) of the wives of brothers (with each other), by reason of (the wives forming one body reciprocally with those (i.e. their husbands) formed from one body (of their father); thus wherever the term Sapinda is used, there directly or mediately connection with parts of one body is to be understood.”
(Gopalchandra Sarkar, Sastri’s Hindu Law, sixth Edition, pages 68-79).
9. It cannot therefore be disputed that Jamna on her marriage with Kodusingh fictionally became his Sapinda by affinity, the relationship being not consanguineous but constructive not direct but mediate. The Judicial Committee of the Privy Council in Lallubhai Bapubhai vs. Gassibai I. L. R. 5 Bom. 110 at p. 118 speaking on this topic said:
“It is not disputed that on her marriage the wife enters the gotra of her husband, and it can scarcely be doubted that in some sense she becomes a Sapinda of his family. It is not necessary to cite authorities on this point. But a statement of the doctrine in a note by Mr. Borradaile to his reports may be referred to. He says; ‘Because a woman on her marriage enters the gotra of her husband, so respondents, being sagotra of Pitambar, are sagotras of his wife also.’ (1 Bom. 70. n. 2)”
and which shows that she (Jamna) became a ‘Sapinda’ of her husband in some sense only and not in its fullest sense by which probably was meant Sapindaship arising out of consanguinity.
10. We may at this stage resumption regarding the validity of marriages generally, which we will have to bear in mind in considering the validity of the marriage in question. In Inderun Valnugypooly Taver vs. Ramsawmy Parndia Talaver 13 M.I.A. 141 at p. 158. It is laid down:-
“Then, if there was a marriage in fact, was there a marriage in law ? When once you get to this, viz, that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law.”
In Mouji Lal vs. Chandrabati Kumari 38 I. A. 122 at p. 125. their Lordships laid down:-
“Their Lordships are of opinion that the view taken by the learned judges or the High Court is correct. In the judgment of Farghter J. it is clearly and concisely shown that from the time of the alleged marriage Ishri Pershad and Girjabati were recognized by all persons concerned as man and wife, and so described in important documents and on important occasions. Their daughters were respectably married as would be natural in the case of legitimate children; and these facts following upon a ceremony of marriage which undoubtedly took place, though its validity is attacked, afford an extremely strong presumption in favour of the validity of the marriage and the legitimacy of its offspring.”
In Fakirgauda vs. Gangi I. L. R. 22 Bom. 277 at p. 279, it was observed:-
“It has been contended in this Court that the fact of marriage having been admitted, it must be presumed to be valid, and that it was for defendant to prove that the marriage was invalid. We are of opinion that both these contentions are correct,”
The same result also follows from a reading of section 50 of the Indian Evidence Act, In this connection, the observations of the Judicial Committee of the Privy Council in Abdool Razack vs. Aga Mohmed jaffar Bindaneem 21, I, A 56. may also be usefully noted:-
“In the next place, it was urged that every presumption ought to be made in favour of marriage when there had been a lengthened cohabitation, especially in a case where the alleged marriage took place so long ago that in must be difficult it not impossible to obtain a trustworthy account of what really occurred. There would be much force in this argument-indeed. it would be almost irresistible-if the conduct of the parties were shown to be compatible with the existence of the relation of husband and wife. In cases like the present conduct is a very good test, and a safer guide than the recollection or imagination of interested or biased witnesses.”
Heavy burden therefore lay on the respondents to establish that there had been no marriage in law between Jamna and Kanhaisingh either by reason of the fact that the law did not permit or that the custom from time immemorial forbade it.
11. Now examining the Hindu law texts on the subject, I find that not only did the Hindu law givers propound different rules regarding ‘ ‘ and ‘ ‘ relationships but that the usages and the customs of the people had so modified them that it is always a difficult question to decide what actually was the law governing a particular family residing in a particular locality, belonging to a particular caste. Golapahandra Sarkar, Sastri, therefore, at page 93 of his treatise on Hindu Law says:-
“The golden rule of prohibited degrees -for marriages, to follow, therefore in a case where the validity of a marriage is called into question on the ground of being within prohibited degrees, is to pronounce. It valid if found to be celebrated in the presence and with the presumed assent, of the relations and caste people, notwithstanding written texts of law to the contrary, which must be taken to be recommendatory in character, as appears from the language of Manu’s text on the subject:-
Which means,-‘She who is non-sapinda also (non sagotra) of the mother, and non-sagotra also (non-sapinda) of the father, is commended for the nuptial rite and holy union among the twice-born classes Similarly, the Mitakshara expressly says that many of the qualifications of the bride. ordered by Yajnavalkya (Text No. 5, p. 68, supra) are directory only.”
12. To the difficulties already existing in such cases where the validity of a marriage is in dispute, further difficulties are added in the instant case due to the fact that we are dealing with the remarriage of a widow which was not looked upon with favour under the orthodox law and the Hindu Widows’ Remarriage Act, 1856. (Act XV of 1856) which legalised it made no specific provision to determine the prohibited degree In the case of widow remarriage:-
(a) Manu is opposed to the remarriage of the widows:-
and the orthodox texts relating to the marriage do nowhere specifically deal With the circumstances under which and the ceremonies with which the marriages of the widows could be solemnized.
(b) The Hindu widow’s Remarriage Act, 1856 (Act XV of 1856) though it declared the marriages of Hindu widows legal and the issues of such marriages legitimate notwithstanding any law or custom to the contrary it did not prescribe any rules for determining the eligibility of parties for marriage. The matter was left to be governed by the ordinary rules of Hindu law which were quite inadequate for the purpose in many respects as the sequel will show.
13. If the shastric injunction regarding ” ” and ” ” marriage is taken to be directory only as suggested by the word ‘commended’ in the text of Manu, no difficulty arises and the marriage of Jamna with Kanhaisingh would be legal and valid, but if it was mandatory and such marriages between persons who were Sagotra and Sapinda to each other could not take place, the question arises whether Jamna continued to be a ‘Sapinda’ and a ‘Sagotra of her husband for the purpose of her remarriage i.e. whether she remained as the widow of Kodusingh or as the daughter of her father.
14. Answering the difficulty regarding ” ” Kane in the History of Dharmasastra at page 614 says:-
“One question raised by Dr. Banerjee is: What is to be regarded as the gotra of a widow when she is to be remarried (is it to be her father’s gotra or of the first husband’s ?). There are hardly any indications in the ancient Smritis or commentaries on this point. V. svarupa commenting on Yaj. I. 63 (on the word ‘Kanyaprada’) observed that according to so e the father gives away the bride even if she is not a virgin So it appears that the father’s gotra should be looked to in the remarriage of a widow. Vidyasagar, whom Dr. Banerjee follows, held the same opinion.
15. Dr. Banerjee in ‘The Hindu Law of Marriage and Stridhana’, 5th Edition, pp. 309-310, says:-
“…one of these rules of selection requires that the parties to marriage should be of different gotras; but what is to be regarded as the gotra of a widow the gotra of her father, in which she was born, or that of her deceased husband, to which she has been transferred by marriage ? Vidyasagar maintains (Marriage of Hindu Widows, pp. 165-172) that her father’s gotra is to he deemed the gotra of a widow for the purposes of her remarriage; and, considering that her father or some other paternal relation is still her guardian in marriage. I think that view is in accordance with the intention of the Act.”
16. In the absence of any direct shastric authority contrary to the aforesaid opinion of Vidyasagar, Banerjee and Kane based on the text dealing with the right of a father to give his daughter in marriage, I am also of opinion that for the purpose of her remarriage, the widow should be taken to be of the gotra of her father. It has to be remembered that the gotra of her husband was acquired by her constructively on her marriage with him. If the marriage was to be an indissoluble tie. the constructive relationship or the relationship by affinity as it is sometimes called still continues to operate for the rest of the natural life of the widow because qua widow the fiction that the husband is alive in her would operate. But if for some reason, what was under the orthodox Hindu law an indissoluble tie is made a dissoluble union. I see no reason to make the fiction or constructive relationship continue to operate when the necessity for it has ceased. It may be that as long as she continues a widow, the fiction would operate and she would be a Sagotra of her husband by affinity but for the purpose of her remarriage, the fiction that the widow represented her husband’s half, would cease. A fiction that came into existence by a marriage would disappear for her remarriage and as the father has been given the right to marry his ‘non-virgin daughter’ which expression may well embrace the case of a widow, it seems quite logical to assume that the widow for her remarriage reverted to the gotra of her father. She marries as the daughter of her father and not as a wife of her husband.
17. This difficulty is, however, of no practical importance now because of section 29 (1) of the Hindu Marriage Act, 1955, which inter alia provides that no marriage solemnized between Hindus before the commencement of the Act, which is otherwise valid, shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra.
18. Now I shall consider the question of her Sapinda relationship. Applying the same reasoning for the determination of Sapinda relationship for the remarriage of a widow, which Sapinda relationship constructively arose due to the first marriage as in the case of Sagotra relationship, I see no reason why Jamna who is not taken to be of her husband’s ‘ ‘ for the purpose of her remarriage should continue to be counted or classed as her husband’s ‘ ‘ for the purpose of first place by reversion to her father’s ‘gotra’ for her remarriage she would become ‘ ‘ to Kanhaisingh and consequently taken out of the prohibited degrees. Secondly, if she remarries as the non-virgin daughter ( ) of her father and because of it relinquishes her husband’s ‘Gotra’ there is no reason why she should yet continue to be his ‘ ‘. Thirdly, she was not a direct or consanguinuous ‘Sapinda’ but a ‘Sapinda’ due to marriage when according to marriage sacrament (Sanskar) she became united to her husband ‘bones with bones, flesh with flesh and skin with skin’. Now if this indissoluble tie, which would have united them for ever, for a widow is to be artificially snapped, there was no reason to keep the fiction alive. The fiction operated as long as she was his wife or his widow i. e, till she wanted her marriage tie to subsist. But the moment she came under her father’s protection for her remarriage or left her late husband’s protection to get herself remarried, her ‘ ‘ relationship like her ‘ ‘ relationship with her late husband came to an end. Fourthly, the text which made her, her husband’s ‘ ‘ expressly said that she became his ‘ ‘ by reason of his fictionally forming ‘one body’ with him. This fiction continued even after her husband’s death because fictionally her husband was alive in her. But this fiction could not continue once the widow decided to get herself remarried Mayne’s Treatise on Hindu Law and Usage, 11th Edition, dealing with the topic therefore rightly states at p, 160:-
“The question has arisen whether a Hindu widow can validly re-marry a person belonging to her father’s gotra. The Allahabad High Court has held that she can, on the ground that she retains her husband’s gotra. This appears to be an error. According to the relevant text of Yajnavalkya, the bride must not be descended from one whose gotra and pravara are the same as the bridegroom’s The Sanskrit expression makes it conclusive that it is the gotra of a woman’s birth that counts in marriage. When a woman enters into her husband’s gotra on her marriage, the gotra consanguinity is constructive and not physical. She retains the husband’s gotra only in her character as ‘wife’ during her widowhood, and she cannot retain it for purposes of remarriage. When she is given in marriage, the formula requires that she should be given as the daughter of say, Devadatta, belonging to Bharadwaja gotra. The legislature has expressly recognised that a minor widow reverts to her father’s family for purposes of guardianship in remarriage. For the same reason, she could, under the ancient Hindu law, as she can now, where there is a custom, marry her husband’s brother; it is also the explanation for the Ni yoga, for a husband’s brother or agnate being authorised to raise up the issue.
Accordingly, a Hindu widow can marry a person belonging to her husband’s gotra. Similarly, the prohibited degrees applicable to the case of a remarrying widow are the prohibited degrees based on her sapinda relation in the family of her birth and not those applicable to a girl born in her husband’s family.”
In my opinion, this passage summarizes the law correctly. The proposition to the contrary laid down in Radha Nath Mukerjee vs. Shaktipada Mukerjee I. L. R. 58. All. 1053 is in try opinion not correct.
19. I am, therefore, of opinion that the widow Jamna was neither a ‘ ‘ nor a ‘ ‘ of Kanhaisingh for the purpose of her remarriage with him and consequently there was no impediment to their marriage. I hold that their marriage was legal and valid and the plaintiff Dhondusingh was therefore a coparcener of the defendants, entitled to his 1/6th share in the joint family property. In the view I have taken regarding the validity of her marriage under the Hindu law. I need not decide whether the caste or the family custom of the parties permitted such a marriage.
20. The appeal is therefore allowed with costs throughout. The judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored.
(1961) AIR(MP) 164 : (1960) ILR(MP) 490 : (1961) JabLJ 204 : (1960) MPLJ 1389