Judgement Appeal (No. 34 of 1934) from a decree of the High Court (February 3, 1933) varying a decree of the Additional Subordinate Judge at Gorakhpur (December 23, 1929). The action out of which this appeal arose was brought by the appellant, Gopi Krishna Kasaudhan, the admittedly legitimate son of Nikku Lal, who died in 1923, claiming the whole of his fathers estate. He alleged that the second defendant, Sri Kishan, was not the legitimate son of Nikku Lal, and that Sri Kishans mother, Musammat Jaggo, the first defendant, was not lawfully married to Nikku Lal. The parties were Vaishya Hindus, subject to the Mitakshara law as interpreted by the Benares school. Nikku Lal was a member of the Kasaudhan caste. The case for the defendants (respondents) was that Musammat Jaggo was by Law. Rep. 63 Ind. App. 295 ( 1935- 1936) Gopi Krishna Kasaudhan V. Musammat Jaggo 77 birth a member of the Agrahari caste; that she was married when very young to one Baijnath, of the Agrahari caste ; that after the death of Baijnath she married in sagai form his younger brother, Sheonath, who then had a lawful wife ; that three or four years thereafter Sheonath "separated me, saying his wife could not pull on with me " ; and that about two years after the separation, while Sheonath was still alive, she " made sagai with Nikku." She described the ceremony of the alleged marriage with Nikku Lal as follows " On the occasion of my sagai with Nikku, the whole ceremony consisted of this. He came to my shop about 7-8 in the evening and took me with him and in the way near a well he put sindur (vermilion) on my head. No other ceremony was performed at that time. He was alone at the time and one more relation whom I do not know. I was alone in my shop at the time." The alleged sagai with Nikku took place about 1909, and no ceremony other than that stated above was ever performed. The respondents contention was that by the alleged sagai form of marriage Musammat Jaggo became the lawful wife of Nikku, and that Sri Kishan was his legitimate son and heir. I was alone in my shop at the time." The alleged sagai with Nikku took place about 1909, and no ceremony other than that stated above was ever performed. The respondents contention was that by the alleged sagai form of marriage Musammat Jaggo became the lawful wife of Nikku, and that Sri Kishan was his legitimate son and heir. The Additional Subordinate Judge found that on the authorities " an inter-marriage between sub-castes of the primary caste is not prohibited, and the onus is on the person who sets up the custom prohibiting such inter-marriages " ; that the plaintiff had failed to prove the custom prohibiting inter-marriage between members of those two sub-castes, and that Musammat Jaggo and Nikku Lal could have lawfully married each other. He also found that Musammat Jaggo was abandoned by her second husband, Sheonath, and that that was tantamount to divorce, as there was no divorce under Hindu law, and he held that " the Hindu law permits the remarriage of an abandoned or discarded wife." He held, therefore, that Sri Kishan was a legitimate son and heir of Nikku Lal. An appeal to the High Court (Mukerji A.C.J. and King J.) was allowed in part. They held that on the facts found by the Subordinate Judge the plaintiff was entitled to possession of one-half of the property in suit. On the question of intermarriages between the members of the Kasaudhan caste and those of the Agrahari caste they held that there had been no inter-marriage so far, but that the validity of the alleged inter-marriage " is not to be decided by what has so long been an orthodox view, but on larger principles," and they said that the mere fact that no marriages had taken place so far between a Kasaudhan and an Agrahari was no proof that if such a marriage did take place it would be invalid. 1936. Jan. 16, 17, 20, 23. Parikh for the appellant. The questions which arise on the facts are (1.) Can a widow of a twice-born marry again in any form at all unless a caste custom permitting her to do so is established ? (2.) Is there a custom amongst Agraharis allowing marriage in the sagai form ? 1936. Jan. 16, 17, 20, 23. Parikh for the appellant. The questions which arise on the facts are (1.) Can a widow of a twice-born marry again in any form at all unless a caste custom permitting her to do so is established ? (2.) Is there a custom amongst Agraharis allowing marriage in the sagai form ? (3.) Assuming that the sagai marriage is valid, is there a custom in the Agrahari caste that a husband can discard his wife so that the wife is free to marry again ? (4.) If such a custom is established, and the woman is free to marry again, then the further questions would arise whether she could marry, by the custom of her own caste, a man belonging to another caste, and whether the male of the different caste who marries her has a custom in his own caste permitting marriage into another caste. And the custom in the latter case must be extended to marriage in sagai form. (5.) Whether it is lawful under the Hindu law for a person of one sub-caste to marry a person of another sub-caste also of the Vaishya community. [SIR SHADI LAL. Is not the question whether Hindu law prohibits marriage between a member of one sub-caste and a member of another sub-caste ? It is for the person who alleges the prohibition to prove it either by statute, by personal law, or by custom.] The question of law arises whether Musammat Jaggo was capable of marrying in her own caste, still Law. Rep. 63 Ind. App. 295 ( 1935- 1936) Gopi Krishna Kasaudhan V. Musammat Jaggo 78 less into another caste. She, a discarded wife, could not marry into her own caste unless it was proved that the separation from her previous husband amounted to a severance of the marriage tie. This case is of importance all over India and affects all the three twice-born castes. Being a discarded wife she , was not entitled to marry anybody at all; and even if she was, she has married somebody whom she was not entitled to marry by the rules of her caste. There was no evidence of a custom that being discarded by her second husband she was free to marry again. Her marriage to Nikku Lal was invalid unless there is a custom which supports it. There is no such custom. There was no evidence of a custom that being discarded by her second husband she was free to marry again. Her marriage to Nikku Lal was invalid unless there is a custom which supports it. There is no such custom. Even if there was some evidence to show that this sagai marriage to Nikku Lal was in some way acknowledged, an inference to be drawn from that would not establish a valid custom among the Agraharis that she being discarded by her husband was entitled to marry again. That this is the first time that a marriage has taken place between a Kasaudhan and an Agrahari is a very important point in the circumstances of this case. The origin and customs of the Kasaudhan and Agrahari castes is dealt with in Crookes Tribes and Castes of the North West Provinces and Oudh, 1896, vol. iii., pp. 165-6, and vol. i., p.33. [SIR SHADI LAL. Custom may be proved by actual instances, or by the opinions of persons who are governed by the custom.] [Reference was made to Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar. (( 1872) 14 Moo. I. A. 570, 585-6.)] [SIR SHADI LAL. You cannot apply en bloc the customs of one sub-caste to another sub-caste.] If custom is established in one sub-caste it must be con strued strictly, and should not be extended Hurpurshad v. Sheo Dyal. (( 1870) L. R. 3 I. A. 259, 285.) Whether among the Vaishya caste the sub-castes can inter-marry is applicable all over India. [SIR SHADI LAL. The rule of Hindu law is that you must marry within your own caste where is the rule that a person must marry within his own sub-caste ?] The sub-castes have their own special rules, subject to custom. If a man marries out of his sub-caste he is out-casted. In Ghoshs Hindu Law, vol. i., 3rd ed., pp. 837-8, it is said that if a woman abandoned by her husband of her own accord contracts a second marriage and bears a son, he is called the son of a remarried woman. he question is whether that rule relates to all the four castes, or is confined to Sudras. It is a quotation from the Vedas it refers to Sudras only, and even among them is not universal. It is a very poor authority for Hindu law to-day on such an important point. he question is whether that rule relates to all the four castes, or is confined to Sudras. It is a quotation from the Vedas it refers to Sudras only, and even among them is not universal. It is a very poor authority for Hindu law to-day on such an important point. The custom is not proved in the present case. Mayne in his Hindu Law, 9th ed., art. 94, p. 116, says, on the question of second marriage, that "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." That statement does not extend to the Baniyas of Gorakhpur. The authorities cited in the judgment of the High Court do not refer to twice-born the whole judgment deals with persons who are not twice-born, and is therefore an erroneous decision on this point Musammat Jaggo was not competent to contract the marriage with Nikku Lal. The subject of the prohibition of inter-marriage between sub-castes is difficult and intricate. How can a custom of prohibition be proved concerning a matter which has never happened?—there is not a single case decided dealing with a marriage between the present sub-castes. All the authorities deal with Sudras, and not with twice-born. Maynes Hindu Law, 9th ed., pp. 108-9, states that inter-marriage between caste and caste is forbidden. The cases referred to in Mullas Principles of Law. Rep. 63 Ind. App. 295 ( 1935- 1936) Gopi Krishna Kasaudhan V. Musammat Jaggo 79 Hindu Law, 7th ed., p. 498, note (c), are all Sudra cases. Sohan Singh v. Kabla Singh (( 1928) I. L. R. 10 Lah. 372.) is also a Sudra case. Har Prasad v. Kewal (( 1924) I. L. R. 47 All. 169.) is a case of Brahmins, but was not a case of two separate sub-castes; they were of the same sub-caste but of different grades. Mullas statement is therefore founded on cases which do not go the length of the statement. In Inderun Valungypooly Taver v. Ramasawmy Pandia Talaver (( 1869) 13 Moo. I. A. 141.)—a case of Madras Sudras—it was said that the prohibition is more universal among the higher classes of the Sudras. In Ramamani Ammal v. Kulanthai Natchear (( 1871) 14 Moo. Mullas statement is therefore founded on cases which do not go the length of the statement. In Inderun Valungypooly Taver v. Ramasawmy Pandia Talaver (( 1869) 13 Moo. I. A. 141.)—a case of Madras Sudras—it was said that the prohibition is more universal among the higher classes of the Sudras. In Ramamani Ammal v. Kulanthai Natchear (( 1871) 14 Moo. I. A. 346, 352.) it was conceded that a marriage between two persons of two sub-classes of Sudras was permissible. There is, however, a general prohibition, and the exceptions, so far as authority is concerned, are limited to Sudras. There appears to be no authority in which the question has arisen between twice-born. Shastri in his Hindu Law, 4th ed., pp. 107-8, says " There is no text of Hindu law prohibiting an inter-marriage of persons belonging to different sub divisions of the same tribe or Varna. A practice, however, has grown up and an inter-marriage between the different sub-divisions of the same tribe does not now take place." [Reference was made to Narain Dhara v. Rakhal Gain, (( 1875) I. L. R. 1 C. 1.)] [LORD BLANESBURGH. Prima facie the marriage is invalid, and proof must be established, by custom, that it is valid, and the burden is on the defendant ?] Yes. [SIR GEORGE RANKIN. The reasoning of the judge in Upoma Kuchain v. Bholaram Dhubi (( 1888) I. L. R. 15 C. 708, 711.) appears to be against you ; it was said that there is no reason why marriage inter-sub-castes should not be valid.] It is stated in Gours Hindu Code that there is no Shastric authority against inter-sub-caste marriage. And in Ghoses Hindu Law, 3rd ed., vol. i., p. 810, it is said that There is no reason why inter-marriages between sub-sections of a twice born caste should be invalid though such marriages might have fallen into disuse." [LORD BLANESBURGH. You must admit that it has been stated several times that there is no prohibition against inter-marriage between sub-castes.] Clear proof of custom will outweigh the written text of the law. In the present case such proof as is on the record is sufficient to establish a custom prohibiting inter-caste marriage The Collector of Madura v. Moottoo Ramalinga Sathupathy. (( 1868) 12 Moo. I. A. 397, 436.) The respondents did not appear and were not represented. April 28. In the present case such proof as is on the record is sufficient to establish a custom prohibiting inter-caste marriage The Collector of Madura v. Moottoo Ramalinga Sathupathy. (( 1868) 12 Moo. I. A. 397, 436.) The respondents did not appear and were not represented. April 28. The judgment of their Lordships was delivered by SIR SHADI LAL. This appeal raises a question which has an important bearing upon the law of marriage governing the Hindu community. It arises out of a dispute relating to the estate of one Nikku Lal, who died in July, 1923. Nikku Lal was a member of the Vaishya caste of Gorakhpur, in the United Provinces of India, and followed the Mitakshara school of the Hindu law. The plaintiff, Gopi Krishna, who is the appellant before their Lordships, is admittedly Nikku Lal’s legitimate son; and his right to a moiety of the estate is no longer in dispute. He, however, claims the entire estate on the ground that the defendant, Sri Kishan, is not a legitimate son of Nikku Lal, and, Law. Rep. 63 Ind. App. 295 ( 1935- 1936) Gopi Krishna Kasaudhan V. Musammat Jaggo 80 therefore, has no interest in the property left by him. That Sri Kishan was born of a woman called Jaggo is not disputed, but the question is whether she was, at that time, a lawfully wedded wife of Nikku Lal. It appears that she was originally married to one Baijnath, while she was a minor; and that, after his death, she married his younger brother Sheonath. The second marriage, however, did not prove to be a happy one, as Sheonath had another wife who naturally disliked the advent of a rival. There were consequently quarrels between the two wives, and the husband, in order to put an end to the trouble, abandoned the second wife. Thus deserted, Jaggo entered into a matrimonial alliance with Nikku Lal by performing the ceremony of sagai. Now sagai is an informal ceremony of marriage, and the Courts below have concurred in holding, not only that she performed the ceremony of sagai with Nikku Lal, but also that it is recognized as a valid ceremony in the case of a remarriage. This decision is not challenged before their Lordships, but it is urged that the lady could not contract a valid marriage during the continuance of her marriage with Sheonath. This decision is not challenged before their Lordships, but it is urged that the lady could not contract a valid marriage during the continuance of her marriage with Sheonath. It is obvious that she could not marry Nikku Lal if she was still Sheonaths wife. The defendants, however, invoke a custom which recognizes and sanctions the remarriage of a woman who has been abandoned by her husband. The learned judges of the High Court have, upon an examination of the evidence, endorsed the conclusion of the trial judge that Jaggo had been deserted by Sheonath before she married Nikku Lal, and that, by a custom applicable to the parties, such abandonment or desertion of the wife by her husband dissolves the marriage tie, and sets her free to contract another marriage. Their Lordships see no reason for departing from the general rule of practice that they will not make a fresh examination of facts for the purpose of disturbing concurrent findings recorded by two Courts in India. Then, if the existence of Sheonath did not invalidate the marriage of Jaggo with Nikku Lal, was it invalid on any other ground ? It is contended on behalf of the appellant that, as the parties to the marriage belonged to two different sub-castes of Vaishyas, the man being a Kasaudhan and the woman an Agrahari, they could not, under the Hindu law, enter into a lawful marriage with each other. Their Lordships are not aware of any rule of Hindu law, and certainly none has been cited, which would prevent a marriage between persons belonging to two different divisions of the same caste. Indeed, there are several decided cases which have upheld such marriages. It is sufficient to refer, in this connection, to two judgments of the Board Inderun Valungypooly Taver v. Ramasawmy Pandia Talaver (( 1869) 13 Moo. I. A. 141.) and Ramamani Animal v. Kulanthai Natchear. (( 1871) 14 Moo. I. A. 346.) It is true that both these cases, as well as the judgments of the High Courts which are founded upon them, relate to the Sudra caste; and the argument advanced by the learned counsel for the appellant is that they cannot establish the validity of a marriage between persons belonging to two sub-castes of a twice-born class such as the Vaishyas. There can, however, be no doubt that the texts of the Hindu law do not enunciate any rule prohibiting the union in marriage of persons belonging to different divisions of the same caste, and not a single case has been quoted in which such a marriage has been declared to be invalid. Their Lordships do not think that the matter requires any elaborate discussion. Put briefly, the position is this. The Shastras dealing with the Hindu law of marriage do not contain any injunction forbidding marriages between persons belonging to different divisions of the same Varna; and neither any decided case, nor any general principle, can be invoked which would warrant such a prohibition. Then, what is it upon which the appellant, on whom the onus rests, can sustain the invalidity of the marriage ? It is said that marriages between members of different sub-castes of the same caste do not ordinarily take place, but this does not imply that such a marriage is interdicted and would, if Law. Rep. 63 Ind. App. 295 ( 1935- 1936) Gopi Krishna Kasaudhan V. Musammat Jaggo 81 performed, be declared to be invalid. Indeed, there is, at present, a tendency to ignore such distinctions, if they ever existed. There exists no doubt a disinclination to marry outside the sub-caste, inspired probably by a social prejudice ; but it cannot be seriously maintained that there is any custom which has acquired the force of law. It is, however, unnecessary to pursue the subject, as in the Courts below no such custom was set up or proved as would render the marriage invalid. For these reasons their Lordships hold the marriage to be valid, and they will humbly advise His Majesty that the judgment and the decree pronounced by the High Court should be affirmed, and this appeal be dismissed. There will be no order as to costs, as the respondents are not represented before them.