# GURDlT SINGH v. MST. ANGREZ KAUR alias GEJ KAUR alias MALAN AND OTHERS

- **Citation:** [1967] 3 S.C.R. 789
- **Court:** Supreme Court of India
- **Decided:** 1967-04-25
- **Case number:** Civil Appeal No. 852 of 1964
- **Bench:** K. N. Wanchoo, V. Bhargava, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gurdlt-singh-v-mst-angrez-kaur-alias-gej-kaur-alias-malan-and-others-4022
- **Pages:** 9

## Headnote

Custom-Divorce among lats of Jullundur District-Value of Rattigan' s Digest and Riwaj-i-Am in this regard-Custom in surrounding districts can be basis of determining existence of custom in Jullundur District.
S married A after the latter had been divorced by her husband T.
The parties were Jats of Jullundur District in the Punjab. After the
death of S a collateral of bis got l'he lands of S mutated in bis favour.
A then filed a suit claiming the land as widow of S. Her marriage to S
was challenged on the ground that there was no custom among the Jats
of I ullundur District permitting a divorced woman to remarry in the
life-time of her first husband. The entries in the Rattigan'• digest and
the Riwaj-i-am of Jullundur District came up for consideration.
HELD : Rattigan'• digest was 'not of help in arriving at a conclusion
about the eitistence of such a custom of
divorce among the J ats in
Jullundur District. The Riwaj-i-Am of Jullundur District was unreliable
as it had been so held by courts. [792 F-0; 795 A-C]
On the basis of the existence of a custom of divorce amon11 the Jats
of districts surrounding Jullundur
District
and on the baslS of oral
evidence adduced in the case, the High Court rightly held that a custom
of divorce existed among the Jats of Jullundur District, and the custom
permits the divorced women to marry in the life-time of her first husband. The divorce of A by T being valid her subsequent marriage to S
was also valid, and accordingly she was entitled to succeed to S's property. [797 B-C]
Basant Singh v. Kunwar Brij Raj Saran Singh, 62 I.A. 180, Vaishnoo
Dill v. Rame.rhri, ( 1928) L.R. 55 I.A. 407, Mahant S<e/ig Ram v. Musammat Maya Devi [1955] 1 S.C.R. 1191, Qamar-ud-din v. Mt. Fateh Bano,
(1943) I.L.R. 26 Lab. 110, Muhammad Khalil v.
Mohammad Baksh.
A.l.R. (36) 1949 E. Pb. 252, Zakar Hussain v. Ghulam Fa·ima, A.I.R.
(14) 1927 Lah. 261, Ghulam Mohammad v. Balli, A.I.R.
(18) 1931
Lah. 641 and Ml. Fatima v. Sharaf Din, A.i.R. (33)
1946 Lah. 426,
referred to.

## Text

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GURDlT SINGH
v.
MST. ANGREZ KAUR alias GEJ KAUR alias MALAN
AND OTHERS
April 25, 1967
[K. N. WANCHOO, C.J., V. BHARGAVA AND G. K. MITTER, JJ.J
Custom-Divorce among lats of Jullundur District-Value of Rattigan' s Digest and Riwaj-i-Am in this regard-Custom in surrounding districts can be basis of determining existence of custom in Jullundur District.
S married A after the latter had been divorced by her husband T.
The parties were Jats of Jullundur District in the Punjab. After the
death of S a collateral of bis got l'he lands of S mutated in bis favour.
A then filed a suit claiming the land as widow of S. Her marriage to S
was challenged on the ground that there was no custom among the Jats
of I ullundur District permitting a divorced woman to remarry in the
life-time of her first husband. The entries in the Rattigan'• digest and
the Riwaj-i-am of Jullundur District came up for consideration.
HELD : Rattigan'• digest was 'not of help in arriving at a conclusion
about the eitistence of such a custom of
divorce among the J ats in
Jullundur District. The Riwaj-i-Am of Jullundur District was unreliable
as it had been so held by courts. [792 F-0; 795 A-C]
On the basis of the existence of a custom of divorce amon11 the Jats
of districts surrounding Jullundur
District
and on the baslS of oral
evidence adduced in the case, the High Court rightly held that a custom
of divorce existed among the Jats of Jullundur District, and the custom
permits the divorced women to marry in the life-time of her first husband. The divorce of A by T being valid her subsequent marriage to S
was also valid, and accordingly she was entitled to succeed to S's property. [797 B-C]
Basant Singh v. Kunwar Brij Raj Saran Singh, 62 I.A. 180, Vaishnoo
Dill v. Rame.rhri, ( 1928) L.R. 55 I.A. 407, Mahant S<e/ig Ram v. Musammat Maya Devi [1955] 1 S.C.R. 1191, Qamar-ud-din v. Mt. Fateh Bano,
(1943) I.L.R. 26 Lab. 110, Muhammad Khalil v.
Mohammad Baksh.
A.l.R. (36) 1949 E. Pb. 252, Zakar Hussain v. Ghulam Fa·ima, A.I.R.
(14) 1927 Lah. 261, Ghulam Mohammad v. Balli, A.I.R.
(18) 1931
Lah. 641 and Ml. Fatima v. Sharaf Din, A.i.R. (33)
1946 Lah. 426,
referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 852 of
1964.
Appeal by special leave from the judgment and decree dated
August 24, 1962 of the Punjab High Court in Regular Second
Appeal No. 843 of 1956.
If
Bishan Narain and A. G. Ratnaparkhl, for the appellant.
K. C. Nayyar and Mohan Behar/ Lal, for respondent
No. 1.
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SUPREME COURT REPORTS
[1967] 3 S.C.R.
The Judgment of the Court was delivered by
Bhargava, .J.
This appeal has come up as a result of a dispute ·relating to succession to the property of one Sunder Singh.
Sunder Singh, on 4th November, 1950, executed a will in respect
of his property in favour of his niece, Udham Kaur. Subsequently,
on 27th October, 1951, one Tarlok Singh executed a document
divorcing his wife, Mst. Angrez Kaur, respondent No. 1 in this
appeal, on the ground that she frequently went away from his
house without his consent and whenever he made enquiries from
her, she became furious with him.
In the document, he recited
that Mst. Angrez Kaur was no longer his wife and that she had
gone to live with Sunder Singh.
According to respondent No. 1
on this divorce being granted to her· by her first husband, Tarlok
Singh, she was married· to Sunder Singh by a custom, known as
'Chadar Andazi'.
On 7th June, 1952, Sunder Singh revoked
his previous will and, in that document, acknowledged Mst. Ang'
rez Kaur as his wife and left the property to her.
Sunder Singh
died in 1953.
Thereafter, the appellant, Gurdit Singh, who was
a collateral of Sunder Singh in the third degree,
applied for
mutation.
On 12th December, 1954, mutation of the property
left by Sunder Singh was sanctioned in favour of Gurdit Singh
by the authorities.
Thereupon, Mst. Angrez Kaur filed a suit on
17th March, 1955. claiming the property as widow of Sunder
Singh.
The trial Court decreed the suit, holding that respondent
No. 1 had married Sunder Singh by 'Chadar Andazi' and the marriage was valid.
On appeal, th~ Additional District Judge set
aside the decree of the trial Court and held that the marriage of
Mst. Angrez Kaur with Sunder Singh during the life-'time of her
first husband, Tarlok Singh, was invalid and was not justified
by any custom and, consequently, she could not be treated, as the
widow of Sunder Singh.
Respondent No. 1, thereupon, appealed
to the High Court of Punjab and the learned Judge, who heard
the appeal, felt that the question of custom ha.ct not properly tried
by the trial Court and the first appellate Court.
Conse,quently
he framed the following issue :-
"Is there any custom
amongst the tribes of the
parties according to which the divorce given by Tarlok
Singh 'to Mst. Angrez Kaur is recognised enabling her
to enter into a valid manfage by Chadar Andazi with
Sunder Singh ?" This issue was remitted to the trial
Court for recording a finding after giving the parties an
opportunity to lead further evidence. Further evidence
was led in the trial Court which answered this issue in
the negative and against respondent No. 1.
The District J ]!dge, in his report, endorsed the view of the trial
Court. The High Court,
however,
held that the
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GURDIT SINGH v. ANGRf.Z KAUR (Bhargava, l.)
79!
custom was proved under which Mst. Angrez Kaur
could validly marry Sunder Singh, even though her first
husband, Tar!ok Singh, was alive, and, consequently decreed the suit.
Gurdit Singh appellant has now come
up to this Court against this decree of the High Court
by special leave.
As is clear from the facts nan·ated above, the only issue that
arose in this case was whether respondent No. 1, Mst. Angrez
Kaur, had succeeded in proving the existence of a custom in the
community to which she belonged, according to which Tar!ok
Singh, her first husband, could divorce her, whereupon she was
at liberty to enter into a valid marriage by Chadar Andazi with
Sunder Singh, whose property is now under dispute. The parties
are residents of the District of J ullundur where, according to
Gurdit Singh appellant, no such custom, as claimed by respondent No. 1 exists amongst the Jats, which is the caste to which
the parties belong. To urge this point, learned counsel for the
appellant relied before us on 'The Digest of Customary Law' by
Sir W. H. Rattigan, and on the 'Riwaj-i-am' recorded at the time
of the settlement in 1885 and 1914-15. It was argued that Rattigan's Digest of Customary Law in the Punjab had always
been treated as an authoritative exposition of the customs pre1
vailing in the Punjab and had been accepted as such by the Privy
Council as well as other Courts in India. Reliance was placed
on para 72 at page 471 of the 14th Edition of Rattigan's 'Digest
of Customary Law', where it is stated that "amongst Muhammadans of all classes a man may divorce a wife without assigning
any reason; but this power, in the absence of a special custom,
is not allowed to Hindus, nor to females of any class". In paragraph 7 4, he proceeds to lay down that "until the former marriage
is validly set aside, a woman cannot marry a second husband in
the life-time of her first husband;" and in paragraph 75, it is
staled that "A 'Karewa' marriage with the brother or some other
male relative of the deceased husband reqi.;ires no religious cer,~
monies, and confers all the rights of a valid marriage."
The ~arriage cl~imed by resp?ndent No. 1 with Sunder Singh
":as desc_nbed as ~ karewa mamage. On the basis of the principles laid down m the above paragraphs; it was urged that it
should be held that respondent No. 1 could not have entered into
a valid marriage with Sunder Singh, while her first husband Tarlok Singh, was alive.
It is, however, to be noted that in' paragraph 72, ~attigan himself m~kes an exception to the general ru k
and recogmses the fact that. 1f there be a special custom divorce
can be resorted to even by Hindus.
'
. fn earlier paragraphs of his book, Rattigan has dealt with
~x1stence of special customs in the Punjab and, in dealing with
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SUPREME COURT REPORTS
[1967] 3 S.C.R,
the Jats, he expressed the view that, as regards Jats, and specially
Sikh Jats who hold very liberal views on questions relating to
marriage and whose notions of sexual morality are lax, it will be
difficult to enunciate any general principles as Ille opposed to
public policy.
Then, he goes on to say that custom in the Punjab
is primarily tribal and not local, though the custom of a particular
tribe may and often does differ in particular localities. Rattigon's
conqusion is expressed by saying that it seems to be clear that
there is no uniform custom applicable to the whole of the Punjab.
Custom varies from time to time and from place io place.
It is in this background that we have to consider fu(ther remarks recorded by Rattigan in paragraph 72 mentioned above.
where he says that, in one case, it was doubted
whether,
in
Jullundur District, a Hindu Jat can divorce his wife.
He also
noticed a number of decisions relating 'to divorce in the surrounding districts in which it was held that the custom of divorce prevailed in almost identical terms in those districts. This custom
according to him, is that the husband is entitled to turn out his
wife and, if he does so, she is entitled to re-marry.
It was on
the basis of these observations of Rattigan that it was
urged
before us· that the High Court conunrtted an error in relying on
the circumstance that, in a number of surrounding districts, it
was found that the custom of divorce amongst the Hindu Jats
so prevalent could lead to an inference that a similar custom
prevailed in the district of Jullundur also.
In Rattigan's book,
by itself, we are unable to find any proposition laying down
that, in the district of Julhmdur, there is any custom among Hindu
Jats permitting divorce as claimed by respondent No. 1.
In
fact, Rattigan leaves the question open by saying that it has been
doubted whether such a custom exists in the Jullundur District.
He also mentions the Riwaj-i-am of Jullundur District, but does
not attach much importance to it on the ground of its being unreliable.
Rattigan's book on 'Customary Law', in these Circumstances, appears to us to be of little help in arriving at a conclusi"n about the PXistenN of a custom on divorce amongst the Jats
in Jullundur District.
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The only other document relating to Jullundur District availG
able wa5 the Riwaj-i-am of that district and learned counsel for
the appellant placed great reliance on it.
He drew our attention
to the decision of their Lordships of the Privy Council in Kunwar
Basant Singh v. Kunwar Brij Raj Saran Singh(') where their
Lordships held :
"The value of the riwaj-i-am as evidence of customary law is
II
well established before this Board;
the most recent decision is
I) 62 I. A. 180.
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GURD!T SINGH v. ANGREZ KAUR (Bhargava, I.)
793
Valshno Dltti v. Rameshri('), in which the judgment of the Board
was delivered by Sir John Wallis, who states :
"It has been held by this Board that the riwaj-i-am is a public
record prepared by a public officer in discharge of his duties and
under Government rules; that it is clearly admissible in evidence
to prove the facts entered thereon subject to rebuttal; and that
the statements therein may be accepted even if unsupported by
instances."
Reliance wa~ also placed upon the principle laid down by this
Court in Mahant Salig Ram v. Musammat Maya Devi('), where
this Court held :
"There is no doubt or dispute as to the value of the
entries in the Riwaj-i-am. It is well-settled that though
they are entitled to an initial presumption in favour of
their correctness irrespective of the question whether or
not the custom, as recorded, is in accord with the general
custom, the quantum of evidence necessary to rebut
that presumption will, however, vary with the facts and
circumstances of each case."
The Court also approved of the principle laid down by the Lahore
High Court, indicating the circumstances in which Riwaj-i-am
can be held to prove a custom, and in that connection said :
"It has been held in Qamar-ud-Din v. Mt. Fateh
Bano( 8 ) that if the Riwaj-i-am,
011 which reliance is
placed, is a reliable and trustworthy document, has been
carefully prepared,
does not contain within its four
corners contradictory statements of custom, and in the
opinion of the Settlement Officer is not a record of the
wishes of the persons appearing before him as to what
the custom should be, in those circumstances the
Riwaj-i-am would be a presumptive piece of evidence
in proof of the special custom set up ·therein. If, on
the other hand. the Riwaj-i-am is not a document of the
kind indicated above, then such a Riwaj-i-am would
have no value at all as a presumptive piece of evidence."
It is in the light of these principles that we have to examine the
value to be attached to the Riwai-i-am in Jul!undur District which
has been relied upon by learned counsel for the appellant.
1'.he Riwaj-i-am of Jullundur District appears in the form of
questmns and answers and an extract of it has been placed before
u~. Jn answe~ to the questions about the grounds on which a
wife may be divorced. whether change of religion is a sufficier.t
cause and whether a husband may divorce his· wife without
(I) [1928] L. R. 55 l.A. 4ry7, 421.
(2) [1955] l. S. C.R. 1191.
(3) [1943] I. L. R. 26 Lah. 11n.
794
SUPREME COURT REPORTS
[1967] 3 S.C.R
assigning any cause, the record states that among all Muhammadans except Rajputs-the Muhammadan Law is .followed; and a
husban<~ can divorce his wife without
ass!_.\lning
any reason.
Among the Muhammadan Rajputs and all Hindus-no divorce is
recognised.
But an exception is me!l(ioned that the Kambohs of
the Nakodar Tahsil also divorce their wives.
They are not required to assign any cause. In answer to the question as to what
are the formalities which must be observed to constitute a revocable or an irrevocable divorce. is \vas stated that among Hindus
there is no divorce except among Kam boils of the N akodar Tahsil
who give 'talaq' by executing ~ written deed.
Reliance is placed on the entry in the Riwaj-i-am that the
custom of divorce among Hindus does not exist in the Jullundur
District to urge that the High Court wrongly held that respondent No. 1 could be divorced by her first husband, Tarlok Singh,
and could validly marry Sunder Singh by Chadar Andazi.
It,
however, appears that the Riwaj-i-am of Jullundur District is
unreliable, and,
according to the principle lai!l down by this
Court in the case of Mahant, Salig Ram (1), such a Riwaj-i-am
cannot be . held to prove that there was no custom of divorce
among Hindus in this district. It does. not appear necessary to
refer to the various decisions of the Lahore High Court on the
question of unreliability of the Riwaj-i-am of Jullundur District.
It is enough to quote the latest decision of the East Punjab High
Court in Mohammad Khalil and Another v. Mohammad
Bakhsh(2). In that case, Bhandari, J., delivering the judgme11t
of the Bench, reproduced the principle laid down by the Lahore
High Court in Qamar-ud-Din & Others(•), which was later a11proved by this Court in the case of Mahant Salig Ram(1).
and then proceedecl to hold :-
"Unfortuna'tely, the. Riwaj-i-am
of the Jullundur
District cannot be regarded as a reliable or trustworthy
document, for, it has been held in a number of decided
cases, such as Zakar Hussain v. Ghu/am Fatima('),
Ghulam Mohammad v. lJal11(•), and Mt. Fatima v.
Shara! Din(6 ), that it has not been prepare4 with care
and attention.
It seems to me, therefore, that it is
impossible to accept the statements appearing therein at
their face value."
Learned counsel for the appellant, however, urged before us
that all these cases, in which the Riwaj-i-am of Jullundur District
was held to be unreliable, related either to the custom about the
right of succession to property of a daughter against collaterals,
(I} (1955) I. S. C. R.1191.
(2) I.LR. 26 Lah. 110.
(3) A. I. R. (36) 1949 E.Pb. 252.
(4) A. I. R. (18) 1931 Lah. 641.
(5) A. I. R. (14) 1927 Lah. 261.
(6) A. I. R. (33) 1946 Lah. 426.
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GURDIT SINGH v. ANGREZ KAUR (Bhargava, I.)
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or about the right to execute wills and gifts.
None of these cases
related to the custom of divorce and at least, insofar as it records
that there is no custom of divorce amongst Hindus in this dilltrict,
the Riwaj-i-am should be accepted.
There are two reasons why
we must reject this contention.
The first is that the Riwaj-i-am
having been found unreliable in respect of two customs, the inference clearly follows that it was not drawn up carefully
and correctly and,. consequently it would not be safe to
rely
even on other aspects of the Riwaj-i-am.
The second, and which
is the more important reason, is that, in this particular case which
is before us, the evidence tendered by both the parties shows
that this Riwaj-i-am has incorrectly recorded the custom about
the right of a Hindu husband of this district to divorce his wife.
Respondent No. 1, in order to prove her case as to the existence of the custom, has primarily relied on two pieces of evidence.
The first piece of evidence consisted of the Riwaj-i-am of the
neighbouring districts where there was a clear record that the
custom of divorce among Hindu Jats existed.
The existence of
such a custom in the neighbouring district, which surround the
Jullundur District all around, is certainly a relevant consideration
for an inference that such a custom may be prevalent in the Jullundur District also, particularly in view of Rattigan's opinion
that the custom is primarily tribal
though also local. If the
custom existed among the tribes of Hindu Jats in all the districts
surrounding the district of Jullundur, it is probable that a similar
custom exists in the district of Jullundur also. The other piece
of evidence relied upon was the statements of a number of witnesses examined to prove that not only such a custom existed,
but also that instances were available showing that there had been
divorces in recent times.
Respondent No. 1 has examined nine
witnesses in this behalf. The learned District Judge, in his report,
did not place full reliance on the testimony of these witnesses,
but their evidence has been accepted by the High Court. On
behalf of the appellant also, a number of witnesses were examined
to prove the non-existence of a custom of divorce. It, however,
appears that the appellanfs own witnesses belied his case. Several
of those witnesses clearly admitted that in this district a custom
did exist permitting a husband to divorce his wife. Three of the
witnesses, Bhag Singh, Karam Singh and Kartar Singh, who were
examined on behalf of the appellant, in their examination-in-chief .
itself, mentioned a custom under which a Zamindar could divorce
his wife, though they added that, if the husband divorces his wife
the wife cannot contract Chadar Andazi during ·the life-time of
her husband.
Ujagar Singh, another witness, in his cross-examination clearly admitted that the husband can divorce his wife
but a wife cannot divorce her husband.
He can divorce her both
verbally as well as in writing.
Similarly, Niranjan Singh, another
SUPREME COURT REPORTS
[I 967] 3 s.c.R.
witness, stated that a husband can divorce his wife, but a wife
cannot divorce her husband.
Gurdit Singh, in his examinationin-chief, mentioned that a husband and wife could live separate
from each other and, in such a case, the wife could not contract
Chadar Andazi during the life-time of her first husband, and added
that,. if she contracted Chadar Andazi, she could not inherit the
property of her second husband.
In cross-examination, he stated
that "there is no custom among us for divorcing the wives with
mutual consent". Ali these witnesses examined on behalf of the
appellant himself thus proved the existence of a custom under
which a Hindu Jat in the district of Jullundur could divorce his
wife, though all of them added a qualification that, in case a wife
is divorced by a Hindu husband, she is nob entitled to a second
marriage during the life-time of her first husband. They all admit
that a custom permitting a Hindu J at to divorce his wife does
actually exists in the district of Jullundur.
Some of them, at
some stages of their evidence, tried to distinguish the right of a
.husband by saying that he could desert his wife or that there
COl)ld be separation between the husband and the wife, but, at
other stages, they admitted in clear words that the custom recognised included the right of the husband to divorce his wife. Thus.
the record in the Riwaj-i-am that there is no such custom of
divorce among the Hindus of the Jullundur District, is proved to
be incorrect not only by the evidence of the witnesses examined
on behalf of respondent No. 1, but even from the evidence given
by the witnesses of the appellant.
In these circumstances, we
hold that there is no force at all in the submission of the learned
counsel that this Riwaj-i-am could be held to be reliable insofar
as it records the absence of the custom; on the mere ground that
in earlier cases the unreliability of this Riwaj-i-am was found in
regard to record of customs relating to other matters.
There is no doubt that the witnesses examined on behalf of
the ajlpellant, while admitting the existence of a custom permitting a Hindu husband to divorce his wife, have added a qualification that, if such a divorce is br(,ui;ht into effect by a husband
the wife cannot legally contract a second marriage during his lifetime.
This limited custom sought to be proved by these witnesses
does not find support from the Riwaj-i-am, nor is it in line with
the principles laid down by Rattigan in his book on 'Customary
Law'.
All that he stated in paragraph 74 of his book was that
"until the former marriage is validly set aside, a woman cannot
marry a second husband in the life-time of her first husband."
We have already held that, even according to the witnesses examined by the appellant, a custom exists· which permits a valid
divorce by a husband of bis wife and that would dissolve the
marriage. On the dissolution of such a marriage, there seems
to be no reason why the divorced wife cannot marry a second
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GURDIT SINGH v. ANGREZ KAUR (Bhargava, I.)
797
husband in the life-time of her first husband. It also appears to
us incongruous to accept the proposition put forward on behalf
of the appellant that, though a wife can be divorced by her husband, she is not at liberty to enter into a second marriage and
thus secure for herself means f9r proper living. In these circumstances, the High Court comn !tee no error in accepting the evidence given by witnesses exam ned on behalf of respondent No. 1
who stated that the custom as prevailing in the Jullundur District
not only permitted divorce, but also recognised the validity of ~
second marriage of the divorced wife e~en in the life-time of her
first husband. The Ht~h C.:oml was further right in relying on the
instances proved by the evidence of these witnesses of respondent
No. 1 showing that a number of divorced wives had actually
contracted second marriages in the life-time of their husbands and
these marriages were recognised as valid marriages by the members of their community.
The appeal, consequently, fails and is dismissed with costs.
D G.C.
Appeal dismissed.