- (1.) I. The litigious journey so far 1. The 8th defendant in the suit is the appellant in both the appeals before this Court. It was admitted by the 1 st plaintiff that she had been married to one Chand Singh and after his death, she entered into the karewa form of marriage which was registered through an instrument dated 17.05.1972. The document was also registered. Harnek died on 16.07.1975. The suit relates to the estate of Harnak Singh. The respondents 1 and 2 herein were the plaintiffs. It was also pleaded that Harnek Singh had executed a Will in favour of the 2nd plaintiff, who was the son of the 1st plaintiff through her previous marriage with Chand Singh. The 8th defendant alone contested the suit contending the alleged fact of karewa marriage and the validity of the karewanama. The execution of the Will was also denied. The contention was that the 8 th defendant had been looking after Harnek Singh during his lifetime and after his lifetime, the property fell to his possession. The trial Court dismissed the suit holding that the Will had not been proved and even the marriage had not been proved. The Court held that after coming into force of the Hindu Marriage Act, the marriage has to be accompanied with anyone of the ceremonies mentioned in the Act to validate the same and the mere execution of the karewanama cannot validate the marriage. As regards the plea that the karewanama itselfmust be treated as constituting a Will bequeathing the property of Harnek Singh to pichlag son of the 1st plaintiff through Chand Singh, the Court held that Harnek Singh could not have intended to execute a Will through the said instrument and could not be treated as a bequest in favour of the 2nd plaintiff. The suit was dismissed. Both the plaintiffs 1 and 2 filed independent appeals which were allowed and hence, the second appeals are before this Court at the instance of 8th defendant. II. The substantial questions of law
(2.) The substantial questions of law framed at the time of arguments are reproduced to secure an appropriate focus for consideration in this case:- i) Whether a mere execution of karewanama without proof of governing customary ceremony to celebrate a marriage between Jat sikhs valid and impress the character of the person showing as the wife as having obtained to such a legal status? ii) Whether the plaintiff had actually improved upon the version to set out accompaniment of religious ceremony only for the purpose of the suit, when there had been no such case at the time of mutation proceedings pending before the authorities? iii) Whether the terms of the karewanama could be treated as constituting a Will within the definition of the Indian Succession Act? iv) Whether in any event if the karewanama were to be construed as a Will, was it not affected by suspicious circumstances as already found by the trial Court and hence invalid? III. Validity of karewa form of marriage-Ingredients of proof
(3.) I will take up the issue of the validity of the karewa marriage, for, that would decide the issue of whether the 1st plaintiff could claim herself to be the owner of the property as a heir to Harnek Singh and exclude the 8th defendant from claiming the property as a collateral heir. The learned counsel appearing on behalf of the appellant would contend that after the death of Harnek Singh, there were proceedings before the revenue authorities for mutation of entries in relation to the land with the village records and at that time, specific evidence was elicited from the 1st plaintiff that there had been no ceremony of marriage. The 1st plaintiff knew about the futility of the claim to the status as a wife, if the ceremony of marriage had not been proved and, therefore, a new case was introduced as an afterthought in suit to make it appear as though that there had been a form of marriage and karewanama was written subsequently. The learned counsel would, therefore, argue that the marriage was not valid and the counsel would refer me to a decision of the Supreme Court in Bhaurao Shankar Lokhande and another Versus State of Maharashtra and another, 1965 AIR(SC) 1564 that held that the word "solemnize" appearing under the Hindu Marriage Act would mean in connection with the marriage, 'the celebration with proper ceremonies and in due form'. It followed, therefore, that unless marriage was 'celebrated and performed with proper ceremonies and due form', it could not be said to be 'solemnized'. I must immediately point out that this decision was rendered in the context of a prosecution of a criminal offence of Section 494 IPC. The standard of proof of what would qualify as bigamy and the validity were, therefore, considered from the extracting standard of proofs necessary in order that second marriage was taken as established for an offence of bigamy. This ought not to be necessarily taken as laying down a proposition that for a karewa form of marriage, there were any particular ceremonies and rituals that were required to be established in order that a claim to status as a wife was possible. This was however brought out in yet another case that went to Supreme Court from this court and dealt with in Surjit Kaur Versus Garja Singh and others, 1994 AIR(SC) 135. The Court held that mere living together as husband and wife would not confer the status as such and if the nature of ceremonies performed were not brought out, the customary form of marriage cannot be upheld. In that case, there was evidence that apart from the karewanama, the ceremonies of marriage were performed in the village and gur was distributed. The Supreme Court confirmed the judgment of the High Court and held that the marriage that is proved must be a marriage which was a valid one and in that case that a valid marriage had not been proved. I would find this judgment as not laying down any law that any detailed ceremonies were required or that any particular ceremony had been found as necessary. The case must be confined to treatment of fact by the High Court as not establishing a marriage and the Supreme Court itself as not disturbing the finding of the High Court. As a principle of law, all that could be stated is that the ceremony shall be that which custom recognized.;