JUDGMENT : R.N. Misra, J. - The Plaintiff who happens to be the wife of the Defendant sued for maintenance past and future and claimed at the rate of Rs. 50/- a month. She also wanted the decree for maintenance to be made a charge on the properties of the Defendant mentioned in Schedule ?A? of the plaint. The Plaintiff has also a daughter born to her through the Defendant. In June, 1964 the Defendant is alleged to have re-married and such re-marriage is the basis for the Plaintiff?s claim for separate residence and maintenance. 2. The fact that the parties were man and wife following a legal marriage is not disputed. But the husband claimed that the marriage between the parties was dissolved on 21-4-1963. Ext. G is said to be the deed of divorce and is also dated 21-4-1963. 3. Admittedly, parties are Hindus and their marriage was performed in 1960 after the coming into force of the Hindu Marriage Act, 1956. The husband claims that there is custom of divorce prevalent in the community of the parties and in accordance with such custom the marriage between the Plaintiff and the Defendant had been annulled. 4. The learned trial judge found that there had been a valid divorce which was customary so far as the parties are concerned. He, therefore, found that the Plaintiff had no cause of action for the suit. It was accordingly dismissed. 5. On Plaintiff?s appeal, two questions were raised before the lower appellate, Court. The learned Additional District Judge posed the two questions in the following manner:-( 1) Whether the story of divorce as canvassed on behalf of the Defendant evidently evidenced by the document Ext. G is acceptable and (ii) whether there is a custom for such divorce in the caste of the parties? The learned appellate judge found that Ext. G was a valid and genuine document and parties had actually signed it. So, he answered that the allegation of divorce as evidenced by Ext. G was correct. Coming to the question of existence of custom of divorce the learned appellate Judge stated: Section 29(2) of the Hindu Marriage Act, 1955 provides that custom shall affect the provisions of the Act. Obviously, this custom must be strictly proved by the persons seeking benefit on that account. G was correct. Coming to the question of existence of custom of divorce the learned appellate Judge stated: Section 29(2) of the Hindu Marriage Act, 1955 provides that custom shall affect the provisions of the Act. Obviously, this custom must be strictly proved by the persons seeking benefit on that account. A custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. It is further essential that it should be established to be so by clear and unambiguous evidence, for it is only by means of such evidence that the Courts can be assured of its existence, and of the fact that it possesses the conditions of antiquity, certainty on which alone legal title to recognition depends. Thus where the evidence shows that the custom alleged was not followed in numerous instances, the custom could not be held to be proved. In this view, two or three instances of divorce as proved in this case cannot establish custom, particularly to repeal the general principle of law. Thus he negatived the plea of existence of custom of divorce. Accordingly, he reversed the decree of the trial Court. The husband - the Defendant in the list is the appellate against this reversing decision of the learned Additional District Judge. 6. The short question which I am called upon to determine is as to whether the custom of divorce in the community to which the parties belong has been established. 7. Section 4 of the Hindu Marriage Act provides: (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. (b)xx xx xx Certain sumptuous provisions have been made about annulment of marriage in the Act. Section 10 provides for judicial separation and Section 13 provides for divorce. The procedure for obtaining either of the reliefs is through Court. Section 29 however, saves certain customs. Sub-section (2) of that section provides: Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of this Act. 8. Section 29 however, saves certain customs. Sub-section (2) of that section provides: Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of this Act. 8. The Defendant seeks to take advantage of this provision by pleading custom of divorce to be prevalent in his community. There is no dispute about the position that the person who pleads custom, particularly in derogation of the general rules of law has the burden to establish that. The question to be examined, therefore, is as to whether the Defendant has been able to establish the custom alleged by him. This custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. It is essential that it should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that Courts can be assured of its existence, and of the fact that it possesses the conditions requisite of recognition. K As was indicated in a very old decision of the Madras High Court in Gopalayyan v. Raghunatiayyan 7 M.H.C.R. 280, evidence of custom should be such as to prove the uniformity and continuity of the usage and the conviction of those following it that they were acting in accordance with law, and this conviction must be inferred from the evidence. It was further stated that the evidence of acts of the kind, acquiescence in those acts, their publicity, decisions of courts, or even of panchayats upholding such acts, the statements of experienced and competent persons on their belief that such acts were legal and valid will all be admissible, but it is obvious that, although admissible evidence of this latter kind will be of little weight unsupported by actual evidence of usage asserted. The rule laid down by the Board in the case of Ramalakshmi Ammal v. Sivanathu Perumal Sathuravar (1872) 14 Moore?s, has been quoted with approval on several occasions by their Lordships of the Judicial committee and runs to the following effect: It is of the essence of special usages, modifying the ordinary law of secession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends. The learned appellate judge seems to have also followed this principles. 9. Mr. Mohanty, learned Counsel for the Appellant contended that the lower appellate Court went wrong in not accepting the evidence of custom in this case. According to him, there was some oral evidence. Besides, another divorce deed (Ext. H) was also produced to support the claim of the Defendant that divorce was customary. Ext. A the other deed of divorce is dated 20th May, 1958. As I have already said, Ext, G, the divorce deed between the parties is dated 21-4-1963. On behalf of the Defendant six witnesses have been examined in all. D.w. 6 is the Defendant himself. D.w. 1 is the handwriting expert who has no concern about the caste custom. D.w. 2 belongs to a different caste. Similarly does d.w. 3. Both of them were mainly concerned with the due execution of the deed of divorce Ext. G.D.w. 4 spoke about the existence of the caste custom and stated: There is custom of divorce in our caste. My daughter-in-law was divorced by my son and he got another wife. My son?s divorced wife married another. I know Kirtan. He had married the daughter of Patra Swain: He divorced her and took another wife. In cross-examination this witness stated: In our caste, one can marry while the first wife is not divorced. I cannot say the reason of dispute between father and the son. After spending one year with her husband and father-in-law, she came away to her parents home. She was married 5 or 6 years back. One or one and a half year after she came away, the question of divorce arose. I cannot say the reason of dispute between father and the son. After spending one year with her husband and father-in-law, she came away to her parents home. She was married 5 or 6 years back. One or one and a half year after she came away, the question of divorce arose. There is a headman in our caste. But his decisions are no longer respected, since 20 to 25 years. Now there is no force of -caste restrictions or obligations. Thus the witness further stated: There is no writing evidencing my son?s divorcing his wife. I am not aware of any writing in case of divorce in any other case. I have not attended any other case of divorce. It is not true that there is no custom of divorce in our caste. 10. The evidence of this witness thus does not appear to be very material for the purpose of establishing the custom. The instances he has spoken seem to be very recent and some even do not go beyond 10 to 15 years before the litigation started. D.w. 5 is the father of-the Defendant. He has not contributed very much to the building up of the edifice of custom. Besides, his evidence must be taken to be indeed coming from an interested source. As the father of the son, d.w. 5 and 6 must be interested to get rid of the litigation by establishing the defence. This in all, therefore, is the evidence in this case in support of the plea of custom. As has been indicated by Professor Allen in his book Law in the Making: In other words, the custom does not derive its inherent validity from the authority of the Court and the sanction of the Court is declaratory rather than constitutive. But in order to merit recognition the custom has to satisfy certain tests all of which done in clear direction proof of the actual existence and operation of the custom. It is true as was indicated by Lord Sumner in Busby v. Avgherino 1928 A.C. 290 Proof is required but it is hard to come by. The rules of evidence are liberal in matters of such antiquity, but they remain rules of evidence and, with every willingness to admit all such inferences as can properly be drawn, we must distinguish clearly between reasonable inference and plausible conjecture. The rules of evidence are liberal in matters of such antiquity, but they remain rules of evidence and, with every willingness to admit all such inferences as can properly be drawn, we must distinguish clearly between reasonable inference and plausible conjecture. The Defendant must have the benefit of all legal presumptions. But he can take nothing by any resort to mere surmise, however ingenious, and his proof, though scanty, must still be rational and solid. 11. Judged in these standards, can it be said that the Defendant has discharged the burden of proof that lay on him to establish that there exists the cast custom of divorce as envisaged u/s 29(2) of the Hindu Marriage Act, and pursuant to such customs has the Marriage tie between the poses been dissolved so as to nullify the claim maintenance. 12. The reasonable answer seems to be in the negative. As I have already indicated, the defence case suffers from paucity of materials. As best one more instance of divorce is said to be evidenced by the document Ext. A. Apart from d.w. 4 there is no witness who comes to support the existence of the caste custom. There is no evidence in this case to show that the practice of divorce prevails in the community and on several occasions when it has become necessary for a man to part with his wife this procedure has been adopted and has been uniformly and universally accepted and acquiesced in; that there has been no challenge even that there has been a custom of divorce, that the solemn tie has been allowed to be broken by such process and new relationships have been permitted to grow and society has accepted those. 13. As I have already indicated in this Case, the instances are at best three or four. Lord Macnaghten in the case of Chandra Baksh v. Muna Kuar 29 I.A. 70 delivering the judgment of their Lordships of the Judicial Committee stated: The result is that in support of the alleged custom, four instances at most can be adduced and those of a comparatively modern date and that there is no other evidence. It is obvious that a family custom in derogation of the ordinary law cannot be supported on so slender a foundation. I do not think, the defence in this case is on any better footing. It is obvious that a family custom in derogation of the ordinary law cannot be supported on so slender a foundation. I do not think, the defence in this case is on any better footing. I would humbly adopt the view of Lord Macnaghten and hold in agreement with the learned appellate judge that the custom has not been established. Once the custom is found not to have been established, the defence is boned to fall and on the admitted position that the parties were man and wife and the Defendant has accepted a second wife during the subsistence of the first marriage, the decree for maintenance is found to be sustained particularly when there is no challenge to the quantum decreed. 14. The appeal fails and is dismissed. There would be no order as to costs in the second appeal. Final Result : Dismissed