D. Falshaw, J. - (1.) THIS is an appeal by the wife Shrimati Gurnam Kaur against a decree passed in favour of the husband Gurdip Singh annulling their marriage under Section 11 of the Hindu Marriage Act, 1955.
(2.) THE facts are not in dispute. The parties were married at Delhi on the 3rd of November 1960. They are first cousins, Gurdip Singh being a son of Shrimati Ram Piari and Shrimati Gurnam Kaur being a daughter of Mr. Sampuran Singh Butalia, the parents being the daughter and son of Kahan Singh Butalia. The petition was filed within a year of the marriage in October 1961 for annulment on the ground that it contravened Clause (v) in Section 5 of the Act. The relevant portion of Section 5 reads - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: * * * * * * * * (v) the parties are not sapindas to each other, unless the custom or usage governing each of them permits of a marriage between the two. The wife's defence was that the marriage was permitted by their family custom and the usage prevailing among the members of the community to which the parties belong. The parties are Khatris who before the partition lived in Sialkot District. Hardev Singh, the father of the husband, belongs to the sub -caste Uberoi and Sampuran Singh, the father of the wife, to the sub -caste Bhandari.
(3.) BEFORE considering the evidence I shall refer to the definition of 'custom' and 'usage' contained in Section 3(a) of the Act. This reads the expressions 'custom' and 'usage' signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family: Provided that the rule is certain and not unreasonable or opposed to public policy ; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family. As the onus lay on the wife to establish the custom or usage which she relied on her evidence was led first and she produced 17 witnesses including her father Sampuran Singh who between them deposed to 21 alleged marriages between first cousins among various sub -castes of khatris belonging to the region comprised in the districts of Sialkot, Gujranwala and Sheikhupura. of these instances 6 relate to the period before 1947, and only one of these, which will require to be dealt with separately, since it relates to the marriage of the parents of the husband in the present case, is of the sub caste of either of the parties. Two of the instances turned out to be of Arora, not khatris. ;