MARRIAGE AND DIVORCE UNDER PUNJAB

CUSTOMARY LAWS

Project work submitted to Rayat College of Law

In partial fulfilment of the requirement of the course
BA LLB for Third semester

Subject: FAMILY LAW-I

Submitted on: 16.11.23

Under the supervision of Submitted by

Dr. Mumtaz Zabeen Khan Anmol Sharma

Asst. Prof. Law BA LLB (3rd SEM)

Rayat College of law Sec A

Roll no 20069
 INDEX
SR. NO. TOPIC PAGE NO.
1. ACKNOWLDGEMENT
2. INTRODUCTION 1
3. MARRIAGE 2

4. FORMS OF MARRIAGE 3
5. CAPACITY TO 5
MARRIAGE

6. DIVORCE 9

7. CASE LAWS 14
8. CONCLUSION 18

9. BIBLIOGRAPHY 19
10. REMARKS 20
 Acknowledgement

I am using this opportunity to express my gratitude to everyone who supported me throughout

the course of this FAMILY LAW project. I am thankful for the aspiring guidance, invaluably
constructive criticism and friend advice during the project work. I am sincerely grateful to them
for sharing their truthful and illuminating views on a number of issues related to the project. I
will strive to use gained skills and knowledge in the best possible way, and I will continue to
work on their improvement.

I express my warm thanks to my subject teacher Dr. Mumtaz Zabeen Khan for giving me
opportunity to work on this topic and without her support and guidance ,I would have not
completed this project.

Furthermore I would also like to acknowledge with much appreciation the crucial role of the
Library staff of the department, who gave the permission to use all required equipment, books
and necessary material required to complete the task, and thanks to all the people who provided
me with the facilities being required and conductive conditions for my Family law project. . I
choose this moment to acknowledge their contribution gratefully.

A special thanks goes to my class mate, who help me to assemble the parts and gave suggestion
about the task .

I also acknowledge with a deep sense of reverence, my gratitude towards my parents and
members of my family, who has always a supported me morally as well as economically.

Any omission in this brief acknowledgement does not mean lack of gratitude.

Anmol Sharma
 CUSTOMARY LAWS

In India ,customs has been recognized as transcendental law, i.e. customs over-rides the
personal law. Under Hindu Law it has been the established rule that "clear proof of
customs will overweigh the written text of law".1

In India, customs has been four types : customs of caste (this expression is relevant in
respect of Hindus) or tribes ( this expression is relevant to Punjab), local customs, family
customs and customs of merchants and traders.
Under Punjab customary law the three fold division of custom into tribal custom, local
custom and family custom exists only in a very broad sense, otherwise, strictly speaking,
customs in Punjab is neither tribal, nor local nor familial. In a sense it is both local and
tribal, but it may vary from tribe to tribe and from Tehsil to Tehsil.2

In Punjab the custom is not general either -general in the sense that any particular custom
being applicable to all Punjabis. Customs in Punjab is predominantly tribal. But this
general statement of law has to be accepted with a pinch of salt.
The question whether a custom is local or tribal becomes important when we consider the
question of proof of custom. The difficulties arise as it cannot be said categorically that
members of a tribal wherever they may be are necessarily governed by the same custom
or that the people living in a locality are governed by the same local custom.

The matter of the fact is that the custom in the Punjab cuts across each other : in a sense it
is both local and tribal and in sense it is neither local nor tribal.

It is interesting to note that the term "customary laws" has come into vogue and whenever
we refer to the Punjab customs we call the "Punjab Customary Law". The term " Punjab
Customary law", is used since it refers to body of rules which governs Punjab tribes. and
it is as much binding and enforceable as rule of law.

1
Collector of Madura Motoo Ramalinga (1868) 12 MIA 397.
Paras Diwan, Customary Law (Panjab University, Chandigarh : Shubhash Chander), 22.
2
Mara v. Tikko AIR 1964 SC 1821.
1.
 MARRIAGE
With the coming into force of the Shari' at Act 1937 a very little of customary law of
marriage has been left which applied to Muslim tribes. With the coming into force of the
Hindu Marriage Act 1955 only a few areas of customary laws of marriage have been
operative.

CONCEPT OF MARRIAGE

Despite the spread of Hinduism, the tribal Punjab retained its customary law of marriage
almost intact, with the result that the customary law remained a secular law, and the
notions of marriage as a sacramental union and holy bond did not invade customary law,.
Some Hindu tribes converted to Islam, but in their secular matters relating to marriage ,
are governed by customs.
Marriage under customary law has been a very simple affair. It is based in the mutual
consent of the parties to marriage or their guardians when parties are minors. Thus,
marriage under Punjab customary law has been essentially a contractual union.

It has been the considered view of the Punjab Chief Court that among certain tribes "even
if no ceremonies are performed, and the connection has been long established and the
woman treated as a wife by the man and recognized by the bradari then it was treated as
a valid marriage."3

However, this does not mean that all customary marriages are without any rituals and
ceremonies. Some particularly the high caste Hindus, perform most of the Hindu rituals
and ceremonies. What is emphasized here is that under the Punjab customary law a
marriage by mutual consent followed by cohabitation even without the performance of
any rituals and ceremonies is also valid.4

3
Sahib Ditta v. Bella 50 PR 1900.
4
Harnam Singh v. Bhagi AIR 1936 Lah 261
2.
 FORMS OF MARRIAGE

Strictly speaking, there are no forms of marriage under customary law as we talk of them
under Hindu law. Different tribes follow different formalities and if we classify them in
accordance to formalities their number will run into several scores.

However, there are two forms of marriage.

KAREWA MARRIAGE

CHADAR- ANDAZI MARRIAGE

KAREWA MARRIAGE

In the letter and spirit of law , the karewa marriage is essentially a marriage by mutual consent
without the performance of any ceremonies whatsoever. When a man and woman agree to live as
husband and wife and cohabit as such, a valid marriage results between the two. Mostly such
marriages are performed in low caste Hindus. But sometimes high caste Hindus also perform
karewa marriage. In such marriages women is usually a widow, divorcee or abandoned woman.
Among Jat tribes marriage with a widow ( usually with a brother's widow) in this form is very
common. here under the woman bears him children, such children are accepted as legitimate
children in all respects , and the brothers widow gets the status of wife.5

In some cases it has been stated that the pure Brahamans and Rajputs do not enter into such
marriage.

It is submitted that a kawera marriage can take place with any woman, relative or stranger,
though usually the woman is a widow, divorcee or a abandoned wife. What distinguish the
kawera marriage from others is that no ceremonies ( even a semblance of ceremony) whatsoever
are required to be performed and mere cohabitation gives rise to marriage conferring on the
parties the status of wife and husband and legitimacy on the children of such marriage. In short ,
in the eyes of law it is perfectly valid marriage.

5
As Kaur v. Sawan Singh 79 PR 1910 3.
CHADAR- ANDAZI MARRIAGE

Remarriage of widows has all along existed commonly, and the chadar- andazi, in which the the
ceremonial has been reduced to the very minimum, is one of the recognized form of the
marriage. In the Rattigan's Digest the statement of law is thus made :
" A Kawera marriage among the jats usually takes place in the chadar- andazi form which
means throwing the chadar over the couple about to be married ".6

the marriage under this forms takes place in several modes. The two common modes are :

(1) the four corners of chadar are tied and some saintly person or relatives spread over
bride and bridegroom at place where they are seated to be married.

(2) in another mode the bridegroom places the chadar over the bride who comes under it.
The placing the chadar over the woman and its acceptance by her or the coming of the
bride and bridegroom under the chadar, is a mode of expression of intention by parties
to live together as husband and wife.
it is a type of contractual union :
Placing the chadar on woman by man - making a PROPOSAL
Acceptance of the chadar by woman - ACCEPTANCE

But in chadar - andazi as well in kawera marriage it is the COHABITATION which results
into the marriage. Once this form of marriage is established it confers the status of husband and
wife on the parties, and the legitimacy on the children of the marriage.
It can be performed with a total stranger.

In Dalip Kaur v. Fatti7 it was performed by a Sikh jat with a Muslim woman convert to Sikhism.

6
Digest ( 16th ed.), 476.
7
Dalip Kaur v. Fatti 99 PR 1913. 4.
 CAPACITY TO MARRY
The capacity to Hindus to marry is now governed by the Hindu Marriage Act 1955. However,
clauses (iv) and (v) of section 5, Hindu Marriage Act lay down that in the matter of Sapinda
relationship and degrees of prohibited relationship parties may still be governed by custom
provided they are governed before the coming into force of the Hindu Marriage Act.

INTER CASTE AND SAGOTRA MARRIAGES :

Under customary law inter - caste marriages were not permitted as a rule. Marriages within same
got were considered invalid. The general rule was that the person cannot marry a woman
belonged to his got. Some tribes held that one cannot marry a women who belonged to one's
mother's, father's mother's, and mother's mother's got. Among some tribes and castes there has
been a well recognized custom under which sagotra marriages were valid. After coming of
Hindu marriage act 1955 , the prohibitions of inter - caste, inter sub caste, and inter tribe have
been done away, now " ANY TWO HINDUS CAN MARRY". However , Hindu cannot marry a
non- Hindu.

Among the Muslims tribes inter- sect and inter- school marriages have been valid and are still
valid. A Sunni male can validly contract a marriage with a kitabia but NOT with an idol-
worshipper or fire- worshipper. This type of marriage is not void but merely irregular. The shi'as
are more rigid, and neither a shi'a male nor a shi'a female can marry a non- Muslim.

AGE :

Under Hindu Law, Muslim Law, and under Customary Law, marriage of minors have been valid.
Hindu law - the Hindu marriage act 1955 lays down that a male below age of 18 and a female
below age of 15 cannot marry , and if the girl is below the age of 18 the consent of guardian is
necessary. Now the matter is subject to the provisions laid under Child Marriage Restraint Act
1978 which says that male below the age of 21 and a female below the age of 18 cannot marry.

Muslim law - A male or a female below the age of puberty can marry only with the consent of
the guardian.
Customary law - rule has been that for the marriage of minor, the consent of guardian is
necessary. If the bride or bridegroom is major, his or her consent, as the case may be, is
necessary.

5.
BIGAMY :

Under customary law, a Hindu male has permitted to take more than one wife and a Muslim
male was permitted to have four wives at a time. After coming into force of the Hindu Marriage
Act 1955, no Hindu can take a second spouse, and bigamy ( both polyandry and polygamy) have
been made penal offences, and a party guilty of bigamy can be prosecutes under Sections 494
and 495, Indian Penal Code. Muslim can still have four wives.

Rattigan's Digest says that "until the former marriage is validly set aside, a woman cannot marry
a second time".8

MARRIAGE WITH A WIDOW :

In Rattigan's Digest it is stated, "The woman amongst the three superior classes of Hindus must
not be dharel of the widow of another man”.9

It has been an established preposition that among the lower castes, widow marriages have been
very common and valid. Although there is no direct prohibition of marriage between the father -
in - law and widowed daughter- in - law among the lower castes, but it is considered to be
repugnant to good morals and therefore, is not valid. But in Jaginder Singh v.Kartara10, such
marriage was held liable.

MENTAL CAPACITY :

There is not much discussion whether mental capacity is necessary. But in a series of case it has
been laid down that if parties are adylt their consent is necessary. In this respect , now the Hindus
are governed by the Hindu Marriage Act 1955 section 5 (ii) lays down the terms.

8
Digest (16 ed.), Para 74, p. 473.
9
Digest , Para 70 (d), p.466.
10
AIR 1936 Lah 551 6.
PROHIBITED RELATIONSHIP :

The modern Hindu law puts the prohibition for marriage on the basis of relation inder two
categories :

(a) Sapinda relationship,

(b) Degrees of prohibited relationship.
The sapinda relationship with reference to a person “extends as far as the fifth
( inclusive) in line ascent through the father, and the third generation (inclusive) in
the line of ascent, the line being traced upward in each case from the person
concerned who is counted as the first generation”.

Two person are said to be within the “degrees of prohibited relationship”.

(i) If one was wife or husband of lineal ascendant or descendant of the other.
(ii) If one was the wife of the brother or of the father’s or mother’s brother or of
the grandfather’s or grandmother’s brother of the other, or
(iii) If the two are brother and sister, uncle and niece, aunt and nephew, or children
of brother and sister or of the two brothers or of the two sisters.11

Under Punjab customs, among several tribes, marriage between two person
which are either sapindas to each other or are within the degrees of prohibited
relationship is recognized.
For instance, marriage with the mother’s sister’s daughter or father’s sister’s
daughter or sister’s daughter is permitted in some tribes.

Under Muslim law , there is also prohibition with certain relations which fall
under five categories:

(i) Consanguinity
(ii) Affinity
(iii) Fosterage
(iv) Unlawful conjugation
(v) Woman undergoing idda

11
Section 3 (g), Hindu Marriage Act 1955.
7.
CEREMONIES OF MARRIAGE :

In respect of requirement of formalities of the marriage one often finds the following statement,
‘As a general rule, no particular form of ceremony is necessary, even among higher castes, to
constitute a marriage. In fact, it is not the ceremonies but the consent of the parties which
constitute marriage.”12

Marriage under customary law may be solemnized in three modes :

(i) Firstly, the religious or sacramental ceremonies are required to be performed in the
higher classes of Hindus when they perform a regular or normal marriage.
(ii) Secondly, some formal and secular ceremonies are to be performed tribes for the
performance of normal and regular marriage (included the Muslim tribes).
(iii) Thirdly, no ceremonies whatsoever are required to be performed in some tribes; mere
intention to live together as husband and wife followed by cohabitation is enough
(usually in lower tribes ; karewa and chadar -andazi marriage) .

DIVORCE
12
Rustomji, A Treatise on Customary Law (1949), 267.
8.
At a time, when divorce was not recognized under Hindu Law, Hindus cannot obtain
divorce only if a custom governing them allowed divorce. That marriage is a
contractual union finds its full manifestation under customary law in the very simple
modes of divorce, including divorce by mutual consent.

Other matrimonial reliefs, such as nullity of marriage, judicial separation and

restitution of conjugal rights, were unknown to customary law.

DIVORCE :

As to the customary divorce the law has been stated by Rattigan in paras. 72 and 73.

Para 72 runs :
Amongst Muhammaden of all classes a man may divorce a wife without assigning
any reason; but this power, in the absence of special custom, is not allowed to Hindus,
nor to females of any class.

Para 73 runs :
Until the former marriage is validly set aside a woman cannot marry a second
husband in the lifetime of her first husband.

Under customary law no formal forum of divorce is provided. It may be obtained

through a panchayat or from family tribunal, or by private act of parties such as by
agreement, oral or written , or by bill of divorcement such as tyag patra or farkat
nama.
No specific grounds of divorce are recognized. Divorce may be obtained by mutual
consent. It appears, most jat tribes recognize easy mode of divorce. In some divorce is
in writing, in some it is oral.

WRITTEN DIVORCE :

Some tribes, such as Ghuman jats, insist that the divorce must be in writing. In such
cases it is not necessary to state the grounds of divorce. Mostly, in such a case divorce
is unilateral; whenever the husband wants to divorce his wife , he writes a tyag patra (
in case of Hindu tribes) or farkat nama (in case of Muslim tribe). However, there is no
rigidity. It must be clearly understood that customary law does not prescribe ant form;
written deed must clearly express the intention to divorce. When divorce is
recognized it is valid, and the woman is free to remarry.
 RENUNCIATION, ABANDONMENT OR REPUDIATION :

Among several tribes and communities , particularly the Jat tribes, a husband has the
power to repudiate the marriage. In LACHHU v. DAL SINGH where parties were
Ghuman jats of Gurdaspur tehsil, Roe, CJ observed: “ It is in no way repugnant to the
spirit of this law that a man who takes a wife should have the power of repudiating
her and that, when so repudiated, she should be free to marry another man”. In some
cases view has been expressed that mere abandonment of the wife by the husband
does not lead to automatic divorce, and if the abandonment wife lives with another
man as his wife, the second marriage will not be recognized. Among some castes, just
as zargars of Gurdaspur District abandonment or desertion of the wife by the
husband does not lead to divorce.

EXPULSION FROM CASTES :

Expulsion of the husband from the caste does not lead to divorce, and the wife cannot
refuse to live with the husband. 9.

IMMORALITY , UNCHASTITY , ADULTERY OR CONVERSION :

Among some tribes the husband can divorce his wife on the ground of unchastity,
immorality or adultery. In Bhan Kaur v. Isher Singh13 the court recognized that
among Malerkotla Jats the husband has the power to divorce a wife who is immoral
or who committed adultery or who converted to another religion.

APOSTASY :
Before the coming into force of the Dissolution of Muslim Marriage Act 1939, the
position was that apostasy ( conversion to another religion ) of either husband or wife
operated as an instant dissolution of marriage.14 This was also the position among the
Muslim tribes of Punjab. Now, under the Hindu Marriage Act 1955, the conversion of
wife or husband entitles the other party to sue for divorce.15

DIVORCE BY MUTUAL CONSENT :

The customary law recognizes divorce by mutual consent. Sometimes such divorces
are in writing and sometimes these are oral. Sometimes the consent of the husband is
obtained by making payment to the husband of the actual expenses of the marriage.
Such a divorce is valid. But the marriage with woman whose husband is alive even
with the knowledge of the latter is not valid.

13
1958 PLR 136
14
Ameer Ali. Mohammaden Law (5 th ed.) II, 388.
15
Section 13 (1) (ii), Hindu Marriage Act 1955. 1O.
 RESTITUTION OF CONJUGAL RIGHTS :
The matrimonial relief of restitution of conjugal rights was made available to all
communities at an early period of British rule in India. Apart from the statuses , the
remedy of restitution of conjugal rights is available under the general law by a suit for
restitution of conjugal rights in the lowest civil courts. There is no period of limitation
within which a suite of restitution of conjugal rights may be filled. In a view of this,
Para 79 of Rattigan’s Digest which lays down that a suite for restitution of conjugal
rights must be filled within two years from the time when restitution is demanded and
refused, has become obsolete and states the law.
The remedy of restitution of conjugal rights is nor recognized under customary law.
Since they are no customs in any tribes which recognized anything like this.
(i) Sometimes panchayat or bradari persuades unwilling wife to go to husband.
(ii) Made available to all communities at an early period of British rule in India.
(iii) Now available under all statutes of Hindu marriage act 1955.
(iv) Muslim can obtain this relief by filling a suite in the civil court of lowest
jurisdiction.
(v) Among the Hindu jats and Muslim Gujagrs a minor husband is not in tilted to
restitution of conjugal rights.

CASE : UTTI V. HEERA SINGH 16

The court said that a husband who has abandoned his wife is not in tilted to restitution of
conjugal rights. The court observed that since the husband, by a written deed, had stated that he

16
78 PR 1893. 11.
gave her up, have no further claim upon her and that another man might marry her, he could not
have his wife back.

OPTION OF PUBERTY

In Rattigan’s digest, Para 71 it is stated : “ a marriage once legally performed between two adults
cannot be repudiated except by the exercise of divorce where such exists”.

Under customary law consummation of marriage is nor necessary for validating a marriage.
When a Muslim minor is given in marriage by a guardian other than a father of grandfather, it
has the right to repudiate the marriage on attaining majority assigning any reason. This is known
as option of puberty for the exercise of option of puberty, the following two conditions must be
fulfilled:

(i) The option must be exercised on attaining on puberty, and

(ii) The marriage should not have been consummated.

Now , Child Marriage (Amendment) Act 1978 will now act on the law of age of
marriage under various personal laws.
Jasbir Singh vs Inderjit Kaur on 11 December, 2002

petitioner had also accepted the factum of customary divorce of the respondent from her
previous husband. It was alleged that ... customary divorce in their brotherhood and District
Sangrur. He deposed that his daughter Satwant Kaur, was divorced through customary divorce

Ram Singh And Others vs Choli Devi And Others on 4 September, 2008
that Gian Chand had divorced Choli Devi by a customary divorce more than 15 years ago.
Choli Devi, therefore ... Devi denied these assertions as false. She denied
any customary divorce
Jagir Singh Bassi vs Kuljit Kaur And Others on 24 March, 2014
recovery of Rs.10 lakh on the basis of customary divorce deed dated 25.12.2003 and affidavit
executed by the defendants ... Tilak Raj Tandon, Advocate, Nakodar had got typed
a customary divorce deed between the plaintiff and defendant

Meenu Rani vs Rishu Garg on 6 December, 2019

customary divorce in their society. However, no written panchayati rajinama or divorce deed
with regard to a divorce of Kulwinder ... customary manner without seeking the intervention of
the court. PW3-Avtar Singh nowhere stated that such type of customary divorce

Kuldip Kaur vs Amanpreet Singh And Others on 22 May, 2009

District, hence, the customary divorce in Jatt Sikhs is duly recognised amongst the Jatt Sikhs of
District Amritsar. The appellant ... divorce but the circumstances also prove the fact that there
was divorce between the parties. Subsequent to the divorce deed

Davinder Kaur vs Gagandeep Singh on 7 March, 2019

writing in the form of a customary divorce was made and signed by the parties as also the
witnesses ... pretext that the same were necessary. The customary divorce was never written nor
agreed to, at the behest

Mohan Lal Sharma vs Parveen on 20 August, 2009

appellant contended that the plea of the respondent that customary divorce was obtained by
executing document ... does not disturb the position which a customary divorce occupied before
the enactment of the Act.
Kirti Khanna vs Deepak Verma on 15 December, 2015
determine whether the said writing dated 31.3.2010 amounts to customary divorce between the
parties or not? Therefore, the case ... shows that in the said case, vague allegations
of customary divorce were levelled which were not substantiated.
Sukhbir Kaur vs Harpreet Singh on 7 January, 2015
witnesses that the marriage was dissolved by way of customary divorce, mere fact that there is
no entry ... Section 29(2) of the Act saves and recognises customary divorce. Subsequent
marriage cannot be nullified merely on the ground.

Baljit Singh vs Prabhjit Kaur And Anr on 20 September, 2019

respondent No.2 - Tarsem Singh was dissolved through a customary divorce, which was well
within the knowledge of the appellant ... that the petition was dismissed on account of
the customary divorce, which had taken place between them.
CONCLUSION

Under the Hindu Marriage Act, preservation of customary forms of divorce is

valuable because this method of dissolving the marriage saves time and money in
litigation. The only thing visible herein is what if any law prevalent is opposing
morality or public policy the court has to mitigate the same. Such a marriage will be
invalid if either or both parties have remarried, and the status of the children will be
impacted. In order to mitigate this, it was proposed that the Ministry of Law should
prepare an exhaustive record of divorce-related customs established in various States,
and that a panel of socio-legal experts should be established to decide if any of those
customs are invalid. Copies of the record should be made available to the people and
the Panchayats openly and readily.
 Bibliography
BOOKS :
(i) Diwan Paras ,”Customary Law of Punjab and Haryana”. Panjab University
Chandigarh : Jain Law Agency, (2006).

WEBSITES :
www.indiankanoon.com

https://revenue.punjab.gov.in/
 REMARKS:
Although, this project has been prepared with hard work &
utmost care. But, if any discrepancy, shall be humbly
accepted.

Dr. MUMTAZ ZABEEN KHAN

Asst. Prof. of Law

Rayat College of law

Railmajra (SBS Nagar)