JUDGMENT L.G. Mukerji, Actg. C.J. and King, J. - This is a Plaintiff's appeal and arises out of a suit for recovery of possession instituted under the following circumstances: The following pedigree will be useful: 2. The property in suit belonged to Nikku Lal and consists of a two storeyed house and a grocer's shop with the stock-in-trade. Nikku Lal, who was by caste Kasaudhan, died in 1923. The Plaintiff's case was that Nikku Lal was married but only once, that his wife like himself was of the caste Kasaudhan and they had a son in the Plaintiff, who was Nikku Lal's only heir. Nikku Lal had contracted an illegal intimacy with the Defendant No. 1 who is a woman of the Agrahari caste, and the Defendant No. 2 is Musammat Jaggo's son, but his father's name is not known. Between them the Defendants claim all the property of Nikku Lal; hence the suit. 3. The defence was that the Defendant No. 1 was married to Nikku Lal in the sagai form 20 years prior to the institution of the suit, that Sri Krishn is a legitimate son of Nikku Lal by Musammat Jaggo and is entitled to Nikku Lal's property. There were other defences to the suit, but they are no longer material for the purposes of this appeal. 4. The learned Subordinate Judge found that there was a valid sagai marriage between Musammat Jaggo and Nikku Lal, that the Defendant No. 2 is the legitimate son of Nikku Lal, and that the Plaintiff and the Defendant No. 2 are equally entitled to the property in suit. The learned Judge accordingly decreed the suit in the following terms: The Plaintiff's claim for possession is dismissed. It is declared that as one of the sons and heirs of Nikku Lal he is entitled to joint possession of the family assets comprising the shop and the house in dispute along with the other members of the family. He will get one third of the costs of the suit incurred by him and the Defendants will bear their own costs. 5. The Plaintiff has appealed and the first point urged is that on the facts found the Plaintiff should have been given decree for joint possession over the property in suit, to the extent of a half share. 6. This point is undoubtedly correct. 5. The Plaintiff has appealed and the first point urged is that on the facts found the Plaintiff should have been given decree for joint possession over the property in suit, to the extent of a half share. 6. This point is undoubtedly correct. There being two sons of Nikku Lal each would be entitled to an equal share in Nikku Lal's property, and as the entire suit of the Plaintiff had been contested on grounds which have not succeeded, the Plaintiff was entitled to possession over one half of the property. 7. The next point urged is that it was not established that Musammat Jaggo was a lawfully married wife of Nikku Lal inasmuch as her first husband Shiva Nath was alive, and there is no evidence of a valid marriage. 8. Another point that is urged is that marriage between a Kasaudhan and an Agrahari could not be valid, and that the issue of such a connection must be held to be illegitimate. 9. We shall take up the question of the factum of marriage and next consider the question of its legality. The Defendants in their written statements raised a plea of sagai marriage between Musammat Jaggo and Nikku Lal. To this plea no re-joinder was asserted by the Plaintiff either by a written statement or by any statement made by the Plaintiff's Counsel, to suggest that a sagai marriage was not permissible in the caste or that a sagai marriage WAS not permissible because a former husband of Musammat Jaggo, namely, Shiva Nath, was alive at the date of the alleged sagai marriage. It has nowhere been suggested that the Plaintiff was not aware of the fact that Musammat Jaggo's former husband was alive, and that he cane to know of the fact later on, during the trial of the suit or even after the trial of the suit. The issues that were framed by the learned Subordinate Judge on this point were issues Nos. 2 and 3 and were as follows: 2. Whether Musammat Jaggo was lawful wife of Nikku Lal or his mistress ? 3. Whether Sri Krishna is the legitimate issue of Nikku Lal or was born of illegal connection ? 10. The issues that were framed by the learned Subordinate Judge on this point were issues Nos. 2 and 3 and were as follows: 2. Whether Musammat Jaggo was lawful wife of Nikku Lal or his mistress ? 3. Whether Sri Krishna is the legitimate issue of Nikku Lal or was born of illegal connection ? 10. It will be noticed that the Issues 2 and 3 are virtually one single issue and do not indicate that any plea was raised on behalf of the Plaintiff as to any impossibility of the marriage owing to the existence of a former husband of Musammat Jaggo. 11. Musammat Jaggo's case was that while she was yet a child, she was married to one Baijnath and when Baijnath died young, she was married to Shiva Nath, the younger brother of Baijnath. Shiva Nath was already married and Shiva Nath's wife could not pull on with her co-wife and the result was that Shiva Prasad discarded Musammat Jaggo. About two years later Musammat Jaggo made sagai with Nikku Lal. 12. In the absence of any plea on the part of the Plaintiff that there could be no valid sagai marriage between Nikku Lal and Musammat Jaggo, because Shiva Nath was alive, we must take it that the Plaintiff never objected to the validity of this alleged sagai, assuming that, one took place, on the ground that Shiva Nath was alive. 13. The learned Subordinate Judge has pointed out that one of the Plaintiff's witnesses admitted that where a woman is discarded by her husband, a second marriage of that woman is permitted among the Kasaudhan caste, to which Nikku Lal belonged. The witness is Makhan Lal and he stated as follows: My brother-in-law Sheo Charan Lal's first wife has contracted sagai marriage with a Kasaudhan. Sheo Charan is alive. The man with whom she contracted sagai was not outcasted. In my biradri if a woman is discarded by her husband, she can contract sagai marriage. 14. In the state of the pleadings, therefore, and further on the evidence of Makhan Lal, a witness for the Plaintiff himself, we cannot allow the learned Counsel for the Plaintiff to raise a plea for the first time that the caste did not permit the marriage of a discarded wife, in the sagai form, among the members of the Kasaudhan caste. 15. 15. The argument was advanced that the marriage of a discarded wife of a Hindu was immoral and was invalid in law, and the Courts should not uphold it on grounds of public policy We shall notice this argument later on, but before we do so, we have to clear up another question of fact, namely, whether the sagai of Musammat Jaggo actually took place with Nikku Lal. 16. Musammat Jaggo swore that after she had been discarded by her husband Shiva Nath, she began to live by opening a shop in Mohalla Sahibganj, one of the quarters of Gorakhpur. Nikku Lal lived in Mohalla Sheikhpur. Nikku Lal came to her shop one evening and took her away with him and in the way, near a well, put sindur (Vermillion) on her head. No other ceremony was performed at that time. The party was accompanied by only ore relation of Nikku Lal. It is argued that, this ceremony is not sufficient to create a valid marriage, and that in any case there is no evidence to show that a marriage was actually contracted. The plain and simple answer to these arguments is this. Musammat Jaggo was never asked what further ceremonies were necessary for a marriage in the sagai form nor were any other witnesses asked anything on the point. Musammat Jaggo, it appears, was twice examined before in two criminal cases that she had instituted against different people for defamation and copies of her statements were put into evidence. She said in her deposition to be found at page 58, that certain ceremonies were performed at a sagai marriage; namely, a pandit was called, a barber woman dyed the feet of the bride and anointed(sic) her body with a certain preparation. Again when she was examined --see page 52-- she said that it was not necessary for a sagai that anybody should he present at the ceremony. In cross-examination at the trial of the suit, out of which this appeal has arisen, the Counsel for the Plaintiff contented himself with asking whether she had made two previous statements and of those statements were correct. To this question she replied in the affirmative. In cross-examination at the trial of the suit, out of which this appeal has arisen, the Counsel for the Plaintiff contented himself with asking whether she had made two previous statements and of those statements were correct. To this question she replied in the affirmative. Her attention was not specifically drawn to any particular portion of her previous statements and she was not asked to explain the discrepancy, if there was at all any, among the three statements made by her at three different times. 17. In the circumstances, we do not think that it is open to the Plaintiff's Counsel to argue that because a Pandit and a barber woman were not called, the sagai marriage was invalid. No evidence was given anywhere to prove that anything beyond the putting of a vermillion mark on the forehead by the intended husband was necessary for the completion of a sagai marriage. The statement of Musammat Jaggo in the suit is consistent with a previous statement of hers that it was not necessary that anybody else should be present besides the bride and the bridegroom. 18. The Shastras allow a good deal of liberty of action in the case of the marriage of a woman whose marriage was not brought about by those whose duty it would be to look after her. Accordingly Manu distinctly says that where a girl has attained puberty and has not been married by her parents for three years, she is at liberty to choose her own husband--see Chapter IX, verse 90. In the next verse (91), Manu distinctly says that a woman, who takes a husband herself, not having been given away by her parents in marriage, acquires no demerits, nor does the man who marries her. Verse 92 lays down that all that the girl, who chooses her own husband, must not do is that she shall not take away with her any property of her parents or brother. The act of Musammat Jaggo, therefore, in choosing her own husband belonging to her own class was a perfectly legitimate fact, and did not entail any breach of the rules of Hindu law. 19. In some castes the marriage ceremony is extremely simple and in the case of Benode Behary Audhi Kary v. Shashi Bhussan Bhur (1921) 24 Cal. W.N. 958 : 59 Ind. Cas. 882 : AIR 1920 Cal. 19. In some castes the marriage ceremony is extremely simple and in the case of Benode Behary Audhi Kary v. Shashi Bhussan Bhur (1921) 24 Cal. W.N. 958 : 59 Ind. Cas. 882 : AIR 1920 Cal. 620, it was held that among the Vaishnava castes in Bengal a mere exchange of kanthi or garlands of beads between a man and a woman was enough to constitute a valid marriage. It was argued that all marriages should be made with some publicity, and if there be no publicity, there is no guarantee that any marriage has been, in fact, celebrated. It is true that in most forms of marriage, some sort of publicity is given to the factum of the marriage, but that is done because there might be some evidence to prove, where necessary, the factum of marriage and not because in the absence of witnesses the marriage would beipso facto void in law. Where a statutory or customary rule requires the presence of witnesses for the validity of a marriage, the absence of witnesses may render a marriage invalid, but where no such requirement exists the absence of witnesses will not make the marriage invalid, if the marriage could be proved by evidence, circumstantial or direct. 20. In this case, we have got the testimony of Musammat Jaggo herself, which has been believed by the Court below and what is even better than that is, that circumstances clearly point to the celebration of a marriage in the sagai form between Musammat Jaggo and Nikku Lal. 21. Musammat Jaggo swears that she was never outcasted owing to her sagai and she has the support of her witness, Lallan Prasad, who is a man of substance and belongs to the same caste as the Plaintiff and Nikku Lal. Lallan Prasad pays an income tax of Rs. 66/- a year, and is, besides, distantly related to the parties. He says that in ceremonies held in his family the Defendants were invited, and that the witness's own brother, Budh Deo is looking after the Defendants' case. When the Plaintiff himself was married, the witness joined it on behalf of the bride's family. 22. We have again the fact that Mst. Jaggo instituted two criminal cases, one against Nikku Lal's brother, Jhinku Lal, and the other against others for defamation, inasmuch as the accused persons spread the report that Mst. When the Plaintiff himself was married, the witness joined it on behalf of the bride's family. 22. We have again the fact that Mst. Jaggo instituted two criminal cases, one against Nikku Lal's brother, Jhinku Lal, and the other against others for defamation, inasmuch as the accused persons spread the report that Mst. Jaggo was not a validly married wife of Nikku Lal, and that she was a woman of bad character. The fact that Mst Jaggo resented this treatment by some people of her husband's caste goes to show that there was truth in her statement that she had contracted a valid marriage with Nikku Lal, and that she had not been kept as a mere mistress. Sri Krishna, the Defendant No. 2 swears that he is treated as belonging to his father's caste, which was Kasaudhan, and that he dines with many people of that caste. It appears that there is a split among the Kasaudhans owing to the marriage of Mst. Jaggo and Nikku Lal, and while some people accept the inter-caste marriage as a good one, others dispute its validity. 23. In agreement with the Court below we hold that the marriage in sagai form between Nikku Lal and Mst. Jaggo has been proved. 24. We shall now examine the question how far the existence of Shiva Nath affects the validity of marriage between Mst. jaggo and Nikku Lal. 25. It must be understood that it is not the Defendants' case that at the date of the marriage Shiva Nath was the husband of Mst. Jaggo. The Defendants' case is that Shiva Nath had deserted Mst. Jaggo and had thereby put an end to the marriage tie between the parties, and, therefore, Mst. Jaggo was free to contract a fresh marriage. If this position be correct, no question of immorality comes in. It is only when a former marriage subsists that a subsequent marriage can be interdicted as bad. 26. We have already pointed out that according to the testimony of the Plaintiff's witness, Makhan Lal, who is a very respectable man and pays Rs. 1,100/- as land revenue, a marriage of a woman "discarded" by her husband in the sagai form is permissible. 26. We have already pointed out that according to the testimony of the Plaintiff's witness, Makhan Lal, who is a very respectable man and pays Rs. 1,100/- as land revenue, a marriage of a woman "discarded" by her husband in the sagai form is permissible. Writers on Hindu law recognize that by custom among people, who have not accepted the refined principles of Brahmanical religion in its entirety, not only widow marriage is allowed but also the marriage of a woman who has been discarded by her husband is allowed. Before we quote writers and consider judicial decisions on the point, we may state that in our own view there is nothing immoral in a woman, whose previous marriage has come to an end, being allowed to contract a fresh marriage. The expression "a woman discarded by her husband" is used by members of the castes, among which such a thing does take place, and means that the marriage tie is broken and the woman is allowed to go free. In most societies including the civilized societies, man is more powerful than a woman, and among members of societies, among whom refined ideas do not prevail, there need not be anything surprising if a man is allowed to say that he breaks up the marriage tie at his own pleasure whether for good reason or for bad. We note that in the highly civilized Muhammadan society, the Muhammadan law permits a Muhammadan husband to dissolve, at his sweet will, his marriage by merely pronouncing the formula of divorce. It must follow that, whether we like it or not, where a man is allowed to break up the tie of marriage between himself and his wife at his sweet will, we have to accept the fact as a fact. If after this, we say that it would be an immoral act on the part of the woman to marry again, it would hardly be justifiable. 27. The learned Counsel for the Appellant has cited a case decided by his Court in Sri Ram v. Inchi (1912) 1. A.L.J. 711 : 21 Ind. Cas. 313, as an authority for the proposition that one of the spouses should not be allowed to desert the other and to contract a second valid marriage. 27. The learned Counsel for the Appellant has cited a case decided by his Court in Sri Ram v. Inchi (1912) 1. A.L.J. 711 : 21 Ind. Cas. 313, as an authority for the proposition that one of the spouses should not be allowed to desert the other and to contract a second valid marriage. This was a case in which a woman had, for insufficient cause, herself left her husband and professed to contract a second marriage. The case quoted is not exactly parrallel to the case before us. There the marriage tie was not broken, there being no evidence before the Court that it could be broken at the instance of the wife herself. In the case before us, it is stronger party, the man, who declares the marriage as at an end by deserting the wife. We hold, therefore, that a deserted wife marrying again does not entail a breach of a moral rule so much so that the Court should set its face against such marriage and pronounce against its validity. Do(sic) admit such marriages as unlawful would be to force the weaker sex, the woman, into immoral actions with tie necessary deplorable results. 28. As regards the sanction of Hindu law as to the marriage of a discarded woman, we must start by pointing out that the Hindu law puts custom on a higher basis than the written texts. It is well known that where a custom, whether it be a tribal or a family custom, exists, it supersedes and overrides the written texts of Hindu law. Then we have to remember that there are many castes, who, though they profess to follow the Hindu religion and the Hindu Shastras, have never become entirely assimlated into the higher sections of the Hindu society, and have never accepted all the finer rules of Hindu law. In a recent Full Bench case one of us quoted texts and Hindu law writers to show that such was the case see Bhola Knar v. Kausilla (1932) A.L.JR. 941 (954, 955. In this case the question was whether a Hindu widow who was permitted by the rules of her caste to re-marry forfeited, owing to her re-marriage, the right to inherit from her late husband by virtue of the Widow Re marriage Act of 1856. 29. 941 (954, 955. In this case the question was whether a Hindu widow who was permitted by the rules of her caste to re-marry forfeited, owing to her re-marriage, the right to inherit from her late husband by virtue of the Widow Re marriage Act of 1856. 29. Mayne in his Hindu Law (9th Edition, revised by Coutts Trotter) deals with the question of second marriages and divorce among the various tribes in Article 94, and at page 116 remarks as follows: In many such cases what is called a divorce is really nothing more than an abandonment by one party or the other of a marriage union which, from the first, was merely an agreement to live together as long as the arrangement suited both parties. 30. He mentions several castes among whom not only widow marriage is allowed but also a breach in the marriage tie is permitted. He points out that the question of divorce and the widow marriage depends on how far a particular caste or tribe Has assimilated or not the Brahmanical habits and rules. At page 117, speaking of Bihar, he points out that most sub-castes of Baniyas (the parties before us are Baniyas) adopt widow marriage. 31. It is no doubt true that the higher form of Hindu society does not recognize, at the present day, any divorce, but this rule does not apply to people who have not accepted the high class Hindu notions in its entirety. Mayne has quoted a good many cases where divorced wives have been permitted to contract fresh marriages and we do not consider it necessary to quote the cases at length. We shall content ourselves with quoting two cases, one from Bengal and the other from Madras. These are Jukni alias Parbati v. Queen Empress (1892) 19 Cal. 67 and Vira Saugappa v. Rudrappa 1885 8 Mad. 440. Both are cases where the wife had been abandoned or discarded by her former husband 32. We hold therefore, that the sagai marriage of Musammat Jaggo and Nikku Lal was valid. 33. The next ground on which the marriage has been attacked is that it is an inter caste marriage, and, therefore, it is urged, it is invalid. Nikku Lal belonged to Kasaudhan caste and Musammat Jaggo was born of Agrahari parents. We hold therefore, that the sagai marriage of Musammat Jaggo and Nikku Lal was valid. 33. The next ground on which the marriage has been attacked is that it is an inter caste marriage, and, therefore, it is urged, it is invalid. Nikku Lal belonged to Kasaudhan caste and Musammat Jaggo was born of Agrahari parents. We have it clearly stated by witnesses on both sides that so far the two castes have not intermarried. We have already pointed out that the marriage in question before us has been the cause of a split among the Kasaudhan society. Some, with advanced views, are Supporting i:(sic) and others are disputing its validity. 34. The question of the validity, however, is not to be decided by what has so long been an orthodox view but on larger principles. 35. We note that the Hindu law, although much of it is to be found in the written texts known after ancient sages, is to be found to a great extent outside them. This is the reason why custom has been put in the forefront of all written rules. Then we note that Hindu law has been not uniform through all ages. It is a living law which has changed with the times and with the stages of the society. Society itself has not stood still, not only in the ancient days of Hindu rule but also during the Muhammadan rule and also in modern times. Who does not know that even 20 to 30 years ago a man, who went to England for even the laudable object of education, lost his caste and society. Practically speaking this phase of Hindu sociely has now disappeared and Hindus are now freely going to England and other European countries, not to speak of Asiatic countries, across the seas, without any fear of losing caste. While marriages were confined, only a few years ago, strictly within local limits, they are now freely performed with residents of distant provinces. Instances of Bengali Brahman girls marrying Punjabi Brahmans are not rare. In the circumstances, to say that a marriage between members of different sub-castes both forming parts of the same bigger caste would be invalid, is to make a high assumption. Manu recognized four principal cases, namely, the Brahmans, the Kshattriyas, the Vaishas and the Shudras. Instances of Bengali Brahman girls marrying Punjabi Brahmans are not rare. In the circumstances, to say that a marriage between members of different sub-castes both forming parts of the same bigger caste would be invalid, is to make a high assumption. Manu recognized four principal cases, namely, the Brahmans, the Kshattriyas, the Vaishas and the Shudras. He permitted a man of a higher caste to marry a woman of even lower caste, although he did not regard favourably the marriage of a woman of a higher caste with a man belonging to a lower caste. The former marriages are known as Anulome marriages and the latter is Prithilome marriages. Yajnavalkya also approved of the Analome marriages. In the Mitakshara will be found a discussion of the share which a son begotten of a mother of a caste lower than that of the father gets. The Bombay High Court so late as in 1930--see Natha Nathuram v. Mehta Chohalal Dajibhai [1931] 55 Bom. 1 : AIR 1931 Bom. 89 : 32 Bom. L.R. 1348 : 130 Ind. Cas. 17,-upheld the marriage of a Brahman with a Shudra woman and in doing so followed an earlier case of the same High Court. This was, with all respect, a correct decision according to the Hindu law, and there need be no hesitation in upholding marriages which are permitted by the Shastras, although at different places a practice has grown up by which marriages have been confined strictly within sub-castes. 36. It is common ground that both the Agraharis and the Kasaudhans are classed Vaishyas, because their main means of subsistence is trade. The original four castes were based on profession, and this view is supported by the highest and most secred of the Hindu books, namely, the Gita - see Chapter 4 verse 13. We are not told whether the Kasaudhans and Agraharis adopt the sacred thread, the emblem of belonging to the higher caste. But we do not attach much importance to this. Everybody is aware that most castes which were formerly regarded as belonging to the Shudra 'Verna' or 'principal caste', have now been trying to claim a higher position in society and have been adopting the sacred thread as proof of belonging to one of the three twice born classes. For our purposes, it is immaterial whether the Agraharis and Kasaudhans are Vaishyas or Shudras. For our purposes, it is immaterial whether the Agraharis and Kasaudhans are Vaishyas or Shudras. Parties are agreed that they are Vaishyas, and we accept that position. 37. The question then is whether a marriage between two sub-divisions of the big Vaishya caste or Verna is valid. Our answer must be in the affirmative. 38. So far as the decided cases go, they relate mostly to Shudras and it has been held that people who belong to the Shudra class but to different sub-castes can contract a valid marriage. Thus the Calcutta High Court in Upama v. Bhalaram Dhobi (1883) 15 Cal. 708, held that a marriage between a man of the dhobi (washerman) caste and a woman of the fisher-man's caste was a valid marriage. In our High Court it was held in the case of Har Prasad Vs. Kewal and Others, AIR 1925 All 26 that a marriage between members of the Taga caste but of(sic) different sub-divisions was a good one. In this case ore party belonged to the Bisa or pure caste and the other belonged to the Dasa or mixed caste. One of the learned Judges, who took part in this case was himself a Brahman. The Tagas called themselves Brahmans. They were so very much divided in their manners and customs that while the Dasas allowed a widow marriage, Bisas prohibited it. This difference was of large consequence and could not easily be ignored, but for the fact that both the Bisas and the Dasas and a Bisa Taga Brahman would involve illegitimacy and loss of inheritance. 39. Mayne in his Hindu law (9th Edition) in Article 89 remarks that although earlier cases held that marriages between different sub-divisions of the same caste were invalid, later decisions were to the contrary. He quotes the case of Mahantawa v. Gangawa (1905) 33 Bom. 693 : 11 Bom. L.R. 822 : 3 Ind. Cas. 962, where it was held that a marriage between a man of the Panchal caste and a woman of the Kurbar caste was valid, as both belonged to the Shudra class. In this case, it was held that the onus lay on the party alleging an illegality by reason of immemorial custom, to prove such prohibiting custom. Cas. 962, where it was held that a marriage between a man of the Panchal caste and a woman of the Kurbar caste was valid, as both belonged to the Shudra class. In this case, it was held that the onus lay on the party alleging an illegality by reason of immemorial custom, to prove such prohibiting custom. The mere fact that no marriages have taken place so far between a Kasaudhan and an Agrahari is no proof that if such a marriage did take place, it would be invalid. The Plaintiff must prove, if there be any, that there is a customary prohibition against such a marriage. The fact that no such marriage took place will not prove that such marriage was prohibited or was illegal. People may not be in the habit of doing a particular thing, but it does not follow that if they did that thing, they would be punished for having done something which was contrary to law. 40. We are of opinion that the marriage between Musammat Jaggo and Nikku Lal was a valid one, as both belonged to the same class of Verna. 41. The result is that the appeal fails, except as to the form of the decree, to which we have made mention in an earlier part of this judgment. 42. We allow the appeal so far as to give the Plaintiff a decree for possession over one half of the property in suit jointly with the Defendant No. 2. 43. Having regard to the fact that both the parties claimed too much, and the case was not free from difficulty, owing to various questions involved, and both the parties had to say something in their favour, we direct that the parties do pay their own costs throughout.