ORDER
R.P. Gupta, J.
1. This appeal is directed under Section 384 of Indian Succession Act, 1925 (hereinafter called 'the Act') against the order dated 31-1-1997 of Additional District Judge, Dindori, District Mandla, passed on a petition under Section 372 of the Act, directing issue of succession certificate of late Somnath in favour of respondents 1 to 3, in their capacity as his widow/daughter and son respectively to the extent of l/3rd share each. The petition claiming succession certificate moved by the appellants and respondent No. 4 was dismissed. The appellants and respondent No. 4 had claimed as widow and daughters and son of the late Shri Somnath Gond. Respondents 1 to 3 had also claimed in the same capacity. The respondents 1 to 3 succeeded. Some service benefits were payable to the heirs of the deceased Somnath. The appellants claimed that they belong to Gond tribe who follow custom of polygamy and there was also custom of marriage by wearing bangles (Chudi system) by the lady and further there was also custom of widow marriage also. These customs were continuing since time immemorial in their tribe, and were universally accepted customs and continuous. They had acquired the force of law. According to their custom, all the widows and sons and daughters would succeed equally to the deceased Gond. The case was that the deceased had two wives, namely Appellant No. 1 Smt. Shakun Bai and respondent No. 1 Smt. Siya Bai and from appellant No. 1, Smt. Shakun Bai, the children born were three daughters and one son who are appellants 2 to 4 and respondent No. 4 and from respondent No. 1, one daughter respondent No. 2 and one son respondent No. 3 were born. Somnath had died on 27-5-1991. He was employed as a teacher in Middle School, Bondar. The following amounts were payable on his death to his heirs :-
(i) Group insurance amount Rs. 50,000/-(ii) Gratuity Rs. 11,160/-(iii) G.P.F. Rs. 20,000/-Rs. 81,160/-
The petitioners had claimed that respondent No. 1 was residing with her parents for the last 10 years and now after death of Somnath, she is challenging the rights of petitioners.
2. The respondents had denied that the appellants/petitioners were heirs of Somnath. It was urged that the Hindu Marriage Act 1955 was applicable to the parties and no second wife could be taken by a Hindu and the children born to such 2nd wife would not be legitimate and will not be heirs. They urged that in fact, appellant No. 1 was wife of one Patiram. They urged that among Gonds, there is a custom of remarriage, but the first husband has to divorce his wife on acceptance of certain compensation money and then he relinquishes his wife, then only, that wife can marry other husband by wearing his bangles after breaking the earlier bangles. New bangles are put on by the new husband after smearing her palms with turmeric (Haldi) paste and social feast is given. Then only the second marriage of that wife, whose husband has relinquished her, becomes valid. In the absence of entire customary procedure, no such marriage by mere wearing bangles of the new husband is valid and the children are illegitimate. Even at the time of cremation of Somnath, the bangles of only respondent No. 1 were broken and not of appellant No. 1. Thus only respondent No. 1 was recognised by the society as widow of Somnath.
3. The trial Court held that there was no reliable evidence to show that, compensation money was paid to earlier husband of Shakun Bai, namely Patiram, nor there was evidence to show that Somnath had put bangles on the hands of Shakun Bai, nor further there was evidence to show that at the time of death of Somnath on the 10th day after death, her bangles were broken as per custom. In fact, her bangles were not broken because the society people did not accept her as valid wife of Somnath. With these findings, the trial Court held that the appellant No. I was not validly married wife of Somnath and for the same reason, and since her earlier husband Patiram was alive, the other appellants who were her children, were not legitimate children of Somnath. So the appellants were not entitled to any relief in their petition.
4. The learned Counsel for appellants has argued that the trial Court has misread the evidence totally and has not weighed it in proper perspective. A petition under Order 41, Rule 27 CPC has also been filed and it is urged that there was writing of paying compensation money to Patiram, that writing was prepared at the time of her relinquishment by him as his wife. The compensation money was paid to him and then she had put on bangles given by Somnath. This writing was produced before the trial Court, but was not exhibited. Now, an application has been moved for opportunity to prove it or it be considered as evidence. It is also urged that the children born to her from Somnath, while she was residing as wife of Somnath, have to be considered as legitimate irrespective of any defect in the form of her marriage with Somnath.
5. In order to consider applicability of custom among 'Gonds', it is necessary to keep in mind the provisions of Section 2 (Part-II) of Hindu Succession Act, 1956 and also Section 2(ii) of Hindu Marriage Act, 1955. Both these have same terminology which are as under :-
'2(ii) (of both the above referred Acts)
'Notwithstanding anything contained in sub-section (1) nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of Clause (25) of Article 366 of the Constitution, unless the Central Government by notification in the official gazette, otherwise directs',
It may also be noticed that Sections 2 (part 1) of both these Acts lay down that the Acts apply to Hindus, Buddists, Jains, Sikhs as also to any person who is not a Muslim, Christian, Parsi, Jews by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with in the Acts if the Acts had not been passed. Certain explanatory definition of 'Hindu' (inclusive and exclusive) is also given in this section which I need not note in detail for the purpose of present case.
6. There is no dispute that a Gond is Hindu by religion. But he is also a Scheduled Tribe within the meaning of clause 25 of Article 366 of Constitution of India. So, the Hindu Marriage Act or Hindu Succession Act will not apply to a Gond in this region in view of the provisions of Sub-clause (2) of Section 2 of these two Acts.
7. At this stage, it would be appropriate to look into the provisions of Article 366 (25) and Article 342 of the Constitution of India. These are as under :-
Article 366 is a definition section giving meaning of various terms used in this Constitution. Clause 25 defines 'Scheduled Tribes' as meaning such tribe or tribal communities or parts of or groups within such tribal communities as are deemed under Article 342 to be scheduled tribe for the purpose of Constitution.
'Article 342(1). The President may with respect to any State or Union Territory and where it is a State....... after consultation with the Governor............thereof, by public notification, specify the tribes or tribal communities or parts or groups within tribes or tribal communities which shall for the purpose of this Constitution be deemed to be Scheduled Tribes in relation to that State, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1), any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification.'
A list of Scheduled Tribes is contained in the Constitution ,of India (Scheduled Tribes) Order, 1950 (C.0/22) as amended by the Scheduled Castes and Scheduled Tribes order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990.
The Tribe 'Gonds' is mentioned in entry No. 16 in relation to M. P. in the above order. The fact is not in dispute that 'Gond' tribe is a Scheduled Tribe within the meaning of Article 342 of the Constitution notified by President of India and so it is a scheduled tribe within the definition of Article 366(25) of the Constitution. For this reason, the provisions of Hindu Marriage Act and Hindu Succession Act do not apply to 'Gond' Scheduled Tribe in this region. But the question is what law will apply to the members of this Tribe in respect of marriage, divorce, legitimacy and succession. Apparently, the Hindu Law modified by custom or if only custom prevails, then the custom on the subjects, will apply. So the rule against Polygamy will not apply to this Tribe. Similarly, the form of marriages can be as are followed by custom. The divorce can also be in a customary manner and the divorcee may marry a new husband in the customary manner if the customs are prevalent.
9. In our case, both parties pleaded prevalence of custom. It is not in dispute that a lady whose husband is alive may be relinquished by that husband and may marry another man (new husband) by putting on his bangles. The description of the customs by the respondents in their pleadings and by parties witness in evidence are : (1) 'Chhod Chutti' by the earlier husband, that is relinquishment (2) Payment of 'Dava' that is compensation money to the earlier husband who relinquishes, by the new husband who accepts the woman anew (3) Breaking of Old Chudis and (4) Putting on of new 'Chudis' provided by the new husband (5) The social feast.
R. V. Russel and HiralaPs Book ' The Tribes and Castes of the Central Provinces of India' contains 'Articles on castes and Tribes of India', as a result of joint study and survey by these celebrated authors devoted to their subject. In volume III at page 82 in para 25 they deal with Divorce and Polygamy among Gonds in this region. They record:
'Divorce is freely allowed on various grounds.........Divorce is however (factually) rare for in order to get a fresh wife the man would have to pay for another wedding, which few Gonds can afford, and he would also have difficulty in getting a girl to marry him.
About procedure of divorce by male it records:
'In order to divorce his wife the husband sends for a few caste men, take a piece of straw, spits on it breaks it in two and throws it away, saying that he has relinquished all further connections with his wife.'
About the divorce by wife it records :
'There is no regular procedure for a wife divorcing her husband, but she can if, sufficiently young and attractive, take matters into her own hands and simply leave her husband's house and go and live with some one else. In such a case the man who takes her has to pay her husband the sum expended by the latter on his marriage.'
About Polygamy, there is para 21 in this Vol. III. It records :
'Polygamy is freely allowed and few Gonds who can afford this expense are fond of taking a number of wives.'
In para 17 of this Book at page 73, it is recorded on the subject of Marriage :
'.................But still the girls have a considerable amount of freedom. It is generally considered that if a girl goes of her own accord and pours turmeric and water over a man, it is a valid marriage and he can take her to live in his own house. Married women also some times do this to another man if they wish to leave their husband.'
There are no fixed ceremonies of marriage of widows or divorcees and any outward ceremony to connote that the two have married is sufficient. Thus even putting turmeric and water by one on another's forehead may be sufficient ceremony. They have to then live as husband and wife. That is the core of marriage among Gonds.
When we consider these aspects of the customs, in the light of evidence on record of the present case, it becomes clear that relinquishment by the earlier husband and putting on bangles provided by the new husband are the two core parts of the customary requirement. The social feast is only to apprise the members of the society about the incident. Even the payment of compensation may not be a very material fact as it may take the form of bride price and may not be considered in consonance with public morality and therefore, not legal and if it is price for the woman for relinquishment, it may take the shape of selling of woman in flesh trade which is totally prohibited by the Constitution and is an offence. Article 23 of the Constitution prohibits traffic in the human beings. It is also against the public policy to accept a custom which has practical effect of selling away a wife so that she becomes a wife of another person. By divorce, she becomes free from earlier marriage bond. Granting divorce 'for money' is against public policy. Such a custom cannot be accepted by law. However, sans this part of payment of money, if the custom is of divorce by husband relinquishing a wife or vice versa when another man accepts her, it will have no infirmity as violative of public policy. If it is a way of life with particular aboriginal community, the Courts will not come in between, to negate it. That was the purpose of introducing exceptions under sub-section (2) of Section 2 of the Two Acts (Hindu Marriage Act and Hindu Succession Act). The customary life-style of the tribal people was sought to be kept uninterfered. The Courts are bound to accept their customary way of life in relation to their personal lives and personal relationships pertaining to the marriage and divorce and legitimacy of children and also pertaining to succession.
10. The trial Court, in assessing the evidence of the parties, has observed that respondent No. 1 admittedly was the first wife of Somnath, but she had been living with her parents for the last ten years before death of Somnath. There is not much dispute that children were born to Somnath from appellant No. 1. These children are appellants 2 to 4 and respondent No. 4. Appellant No. 1 was living with Somnath as a wife. The Trial Court has discarded her evidence and preferred the evidence of respondent No. 1 and her witnesses. The evidence of witnesses of appellant No. 1 has been discarded because, according to trial Court, they were not present at the time of 'Chhod Chutti' by the earlier husband or at the time of putting on new bangles on the arms of the appellant by Somnath. So their evidence was found to be hearsay. The Statement of appellant herself was also rejected on the reasoning that it was partly contradictory to the statement of her witnesses. However, the same standard of assessment of evidence was not applied to the statement of witnesses of respondents. Their statements appear to have been accepted without analysis and without considering the fact as to what was the source of the knowledge that appellant did not wear 'Chudis' of Somnath. They did not give any explanation as to in what capacity or status the appellant No. 1 was residing with Somnath and procuring children from him.
11. In respect of any ceremony which Shakun Bai appellant might have undergone with Somnath, she will be the best witness. Somnath is dead. It is important to note that Shakun Bai did not deny marriage between Somnath and Siya Bai, respondent No. 1. She has narrated that Manjusha, Krishna, Babli and Krishna Pal were born to herself from Somnath. There is nothing to discard it. She says that for 10 years prior to death of Somnath, the respondent No. 1 was residing with her parents. She was candid in admitting that Patiram was her first husband. She was married to him. She does not know if Patiram is alive at all. She had put on Chudis of Somnath. She has even stated that her husband Patiram had taken his 'claims' before her marriage by Chudi ceremony with Somnath. Her father-in-law Basori Singh was a legislator and he too had two wives. There was a social gathering when Somnath accepted her as his wife. It will be noticed that there was no cross- examination directed on appellant Shakun Bai that the four children, appellants 2 to 4 and respondent No. 4 were not born to her from Somnath, not even a suggestion was made in this respect. It was not suggested that she had not been living with Somnath and discharging duties of his wife. It was not challenged that for the last 10 years, Siya Bai had been living with her parents in their house.
12. The respondents No. 1 Siya Bai, in her evidence on oath asserted that Shakun Bai was nothing to her husband. She asserted that Shakun Bai never lived with her husband Somnath. But at the same time, she expressed ignorance if her husband had contracted second marriage with Shakun Bai. She only said that her husband never told her about it nor Shakun Bai told her that she was residing with her husband. She admitted that her father-in-law was a legislator and they belong to 'Gond' tribe and in their Tribe, there is a custom of marriage by putting on Chudis, but the first husband has to break the old bangles and then, the new husband gives her clothes and new bangles in the presence of people of their society. The old husband is given certain compensation. She admitted that among 'Gonds' there is a custom that a married lady leaves her husband and marries another husband and the male members keep more than one wife and further that all the wives and their children get equal share in the property of the husband. She admitted that her father-in-law Basori Singh had two wives, one was regularly married and the other was married with 'Chudi' ceremony. She claimed ignorance about the facts if Patiram had given Chhod Chutti (relinquishment) to his wife Shakun Bai. She stated that she heard that Patiram had kept another wife. She expressed ignorance if Krishna, Babli, Krishna Pal Singh and Manjusha were children of Somnath. Even if they be his children born to him. She does not know about it and she does not know about Shakun Bai. She does not know if Shakun Bai was taken by Somnath by Chudi ceremony. These are her answers in cross-examination. She does not know if Krishna Pal Singh had joined the cremation of Somnath. At one stage she admitted that for breaking bangles at the time of death of Somnath, she and Shakunbai had both gone to 'Ghat' with the people of the society. So these are changing stances adopted by Siya Bai respondent No. 1.
13. The witnesses on behalf of Siya Bai are Sukhiram (P.W.2) who is ex-sarpanch and knows the family of these parties and PW-3 Gopisingh is maternal uncle of Siya Bai, as admitted by him in cross examination. These witnesses admit that there is custom amongst Gonds that they marry more than one wife and a married wife can leave her husband and put on Churis of another husband. Thus she becomes the wife of another husband. The earlier husband gives her up and accepts money as consideration for giving her up. A number of instances are admitted by them regarding Gonds keeping more than one wife and the second wife being married by Churi custom. Even the father of deceased Somnath had more than one wife and he was a legislature. P.W. 2 Sukhiram had contested an election for membership of M. P. Legislature. It is important to note that P.W.3 Gopisingh narrated that he had 'heard' that Somnath had another wife than Siyabai. However, he simply expressed ignorance regarding marriage between Somnath and Shakunbai and birth of children to Shakunbai from Somnath. At the same time he stated that he had heard that children were born to Shakunbai from Somnath. He said that Shakunbai had asserted that she was wife of Somnath and he admitted that Somnath was not residing with his parents for 25 years since before his death and further that Shakunbai had told him, so he learnt that she was wife of Somnath. Regarding death ceremony at the time of death of Somnath, he said that Shakunbai had explained that her Churis were not broken and a Panchayat gathered on this issue but the Panchayat people said that they did not know about the Churi ceremony of Shakun and birth of children to her by Somnath. He claims to know Shakun and says that her husband was Patiram. P.W. 2 Sukhiram also adopted an illusive stand in the cross-examination and said that he did not know that Shakun had married Somnath by wearing Churis and she was having children from Somnath. Even he said that Shakun had gone with Siyabai for Churi breaking at the time of death of Somnath, but her Churis were not broken. Shakun had narrated on the aspect of breaking of Churis at the lime of death of Somnath that she had gone to the Village pond for that purpose with Siyabai but, since her Churis were not broken at that time, she took some villagers to Amarkantak by the side of Narmada river and there her Churis were broken.
14. The Trial Court appears to have given stress on this aspect also but this aspect pertains to the custom prevalent at the time of death and not at marriage. The fact that she went with Siyabai for the ceremony of breaking Churis is important. Whether the villagers permitted her Churis to be broken or not is not important as there were others who joined her for breaking the Churis at Amarkantak, It clearly appears that she is not an utter stranger. Her residence with Somnath has not been denied either by Siyabai or her witnesses. In fact they have evaded the question of her marriage with Somnath and birth of her children from Somnath, by saying that they do not know about it, when they were faced with cross-examination on this aspect.
15. So factually it appears correct, in the light of evidence of Shakun and her two witnesses, who are resident of village Tikratola, where Somnath dies, that she was residing with Somnath as his wife and had 4 children from him who are appellants 2 to 4 and respondent No. 4. This was the second marriage of Shakun with Somnath. Admittedly, she had been earlier married to Patiram. Patiram had not been examined by any side although the witnesses of Siyabai and she herself told that they know him, while Shakun said she did not know if Patiram is alive and where he is. in these circumstances Siyabai could call Patiram or produce him as a witness. They admit that Patiram married another wife which indicates that Shakunbai was given up by him. It appears that Shakunbai has come out with truth. She has not denied first marriage between Siyabai and Somnath. She is not stressing that she was married to Somnath before the sacred tire. She claimed to have been married by Churi wearing. She admitted that she was earlier wife of Patiram. So she is coming up with truth. Her assertion is that after her marriage by wearing Churis of Somnath, she had been residing with Somnath for over a decade. It is to be weighed in the face of answers of Siyabai and her maternal uncle and other witnesses that they did not know if she was residing with Somnath or she had children from him. In fact Gopiram had admitted that he learnt this fact as Shakunbai had told him so. So Shakun had been claiming it. We do not know since when. Gopiram does not say that this claim was made by Shakunbai only after death of Somnath. This Court, therefore, find that there is ample evidence that Shakunbai had married Somnath by Churi wearing ceremony and had 4 children born to her from Somnath, who had been residing with him from place to place during his service as a teacher in Government Schools.
16. The trial Court appears to have been swayed mostly by the fact that there was no evidence that Patiram accepted the consideration for renunciation of his wife Shakunbai at any time. I have already discussed that that pail of the custom of divorce would not be in accordance with morality or public policy and should be discarded. This Court finds that there is ample evidence to suggest that there was custom of divorce by husband to his wife by giving her up and vice versa. The best evidence could be that the wife gives up her husband without his protest and marries another person by wearing his Churis and the earlier husband himself marries another lady. The assertion of Shakunbai that she wore Churis of Somnath is acceptable as she has been living as wife of Somnath and the respondents and their witnesses only said that they do know about it, when faced with the fact in cross- examination. Thus it appears clear that it is inferable from material on record that the first husband of Shakunbai had renounced her and thus divorced her or she renounced or divorced him. Shakunbai stated that at the time she married Somnath there was a feast. She stated that her first husband Patiram had accepted his claims (Dawa) and even a writing was made.
17. It appears that a document purporting to be a writing by Patiram for having accepted some consideration of renouncing his relationship of husband and wife with Shakun on 26-3-1979, was filed before the trial Court but no questions were put about it by either side to Shakunbai. The witnesses to that document were not examined. To the assertion of Shakunbai that there was a writing about payment of consideration to her husband Patiram, there was no cross-examination directed to her on behalf of respondents to challenge this fact. She appears reliable on this aspect also. Shakunbai has moved an application under Order 41, Rule 27, Civil Procedure Code, for permission to lead evidence to this document. This Court, however feels that this part of the custom about necessity of payment of consideration cannot be accepted as legal. So, this court does not feel the necessity of taking additional evidence on this issue.
18. In view of the above discussion, this Court is of the view that the findings of fact reached by the trial Court is on misunderstanding of the evidence and misconception about the legality and existence of custom of necessity of taking consideration by earlier husband for granting divorce. The answers given by witnesses of the respondent and particularly admission of respondents witness (R.W.3) that he has learnt about marriage and birth of children between Shakun and Somnath have not been given due importance by the trial Court. In view of statements of witnesses of respondents and of respondent herself the statement of petitioner that she was married to Somnath and Patiram had relinquished her, is acceptable as truthful. Thus this Court finds that Shakunbai was legally married in the customary manner to Somnath as second wife. There is custom amongst Gonds to have more than one wife. She had been divorced by her first husband Patiram. The children born to her from Somnath are the other appellants 2 to 4 and respondent No. 4 Manjusha.
19. Thus, there were 2 wives to Somnath and the petitioners and respondents are their children from Somnath.
20. The next question would be whether they are entitled to succeed to the monies left by Somnath. The provisions of Hindu Succession Act do not apply, as already noticed. The question is what is the custom on this aspect. The witnesses of both the sides have stated that when there are more than one wives, all the wives and their children get equally. Examples have been given in respect of father of Somnath who had married more than one wife and brother-in-law (Sala) of Basori Singh father of Somnath, who also had more than one wife. Their wives and children shared equally. Other examples were also given. The custom is accepted by respondent also. She admits about her father-in-law Basori Singh that he had more than one wife. She admitted in respect of one other case of Rajaram who was Phoofa of Somnath and resident of Tikratola and an advocate that after his death all his wives and children shared his property equally. There appears no instance against such custom of succession. If we go by strict Hindu Law all the children of the wives share equally and both wives also share with them, the wives taking one share. But here the custom amongst Gonds appears different to this extent that each wife will share equally with the children.
21. The result is that in this case the petitioners and respondents will share equally in the monies left by Somnath i.e. they take 1/8 share each.
22. As a result of above discussion and findings, the order of the trial Court is set aside. Appeal is accepted. It is directed that the succession certificate to the monies (service benefits) left by Somnath will be divided amongst appellants 1 to 4 and respondents 1 to 4. All of them will get 1/8 share each. A succession certificate be issued accordingly to them in terms of this order so that they can get the monies. In view of the questions involved I leave the parties to bear their own costs.