HIGH COURT OF MADRAS
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K.VEERASWAMI, C.J. -
(1.) THIS appeal by the respondent arises from a petition filed by the husband for restitution of conjugal rights. It is not disputed that the marriage took place according to Hindu rites at Bombay on 27th October, 1960, and that soon thereafter they lived together happily for a short while. But thereafter unfortunately they were separated which eventually led to the petition. The defence was that the parties were within the prohibited degrees of relationship, they being the children of brother and sister. It appears the husband's mother and the wife's father are sister and brother respectively. She pleaded that according to the custom and usage of the Dravida Brahmin Community to which the husband's father as well as the wife's father belonged, marriage of cousins was prohibited. On that basis she claimed that she was entitled to a declaration of the nullity of the marriage. The parties went to trial essentially on the question whether there was a custom allowing such marriage. The first Court found that such a custom was established and that was affirmed by Venkatadri, J., in appeal. That is the issue in the appeal as well before us.
(2.) WE have been taken through the oral evidence of one Somasekara Somayajee, who deposed for the husband and of Kulluru Somasekara Sastri, who spoke for the wife. The sum total of this evidence is that there was but a single instance of a marriage sometime in 1918, but this was objected to by the members of the community resulting in a conference which decided that the marriage was prohibited. According to the evidence on the petitioner's side, there were one or two marriages which took place in 1961 and 1965. That is the whole evidence to establish a custom permitting marriage between parties within the prohibited degrees in the community. The witness for the wife Kulluru Somasekara Sastri appears to be an eminent man who was positive that among Konaseemas Manarika marriage was opposed to custom and sastra and that he was not aware of any marriage against custom except the one in 1918. The trial Court has failed to see that this evidence was hardly sufficient to establish a custom of allowing marriage in the community between parties within the prohibited degrees. As held in Saraswathi Ammal v. Jagadambal :  4 SCR 939, the correct approach to a case where a party seeks to prove a custom is what was pointed out by the Privy Council in Abdul Hussain Khan v. Mt. Bibi Sona Dero L.R. 45 IndAp 10 : 1917 34 M.L.J. 48 : A.I.R. 1917 P.C. 181. A party who sets up a custom should invariably allege it in the pleading and prove by cogent evidence as to the instances or facts over a reasonably long period, which in effect make out the custom pleaded. Short of this, a custom cannot be the result of a process of approximation or analogy 01 deduction from other customs prevalent among communities or sections of the people other than that to which the parties in dispute belong. A custom cannot be extended by analogy. It should be established inductively, and not by a priori methods. What period for proving instances should be taken would depend upon the facts in each case. In this case there was no plea of such a custom which the petitioner wanted to establish at the trial. Further, from one single instance in 1918, no custom could be inferred, much less established. Section 5(iv) of the Hindu Marriage Act of 1955 is clear that a marriage may be solemnised between any two Hindus only if, among other things, the parties are not within the prohibited degrees of relationship, unless the custom or usage governing each of than permits of a marriage between the two. Evidence in this case falls very short of establishing such a custom prior to 1955. Even thereafter, only two instances have been brought to the notice of the Court which would again be insufficient to make out a custom which would relax the condition imposed by Section 5(iv).
(3.) THOUGH the result would be unfortunate, we are compelled to hold that the custom pleaded by the petitioner -husband is not established. We, therefore, declare the marriage to be null and void and there will be a decree of nullity. The appeal is allowed and the husband's petition will accordingly stand dismissed. But there will be no order as to costs throughout.;
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