Khundkar, J.
1. The facts out of which this case has arisen are shortly these: The petitioner Inder Singh filed a complaint before the Police Magistrate of Alipore alleging that his wife Durgi had left his house taking with her a sum of Rs. 200 in cash, and some clothes and utensils. The case was transferred for inquiry to an Honorary Magistrate who examined Inder Singh and some of his witnesses. Inder Singh in his deposition stated that he had discovered that Durgi was living with two men, Sadhu Singh and Sohoni, at Budge-Budge. The Magistrate thereupon summoned Sadhu Singh and Sohoni to stand their trial for an offence under Section 498, Penal Code. Other witnesses were examined but the Magistrate was not satisfied with the evidence, and discharged the two accused persons. Inder Singh moved the learned Additional District Magistrate for a further inquiry, but his petition was dismissed by the Magistrate who recorded a judgment in which he observed as follows:
As regards the merits of the case, I am of opinion that the order of discharge is right, if it were only on the ground that the alleged marriage between Durgi and the complainant has not been proved. It is the case of the defence that Durgi was never the legally married wife of the complainant but that she used to reside in his house as his mistress. To disprove this point the complainant examined several witnesses. All the witnesses including the complainant in his examination-in-chief stated that the complainant was a Hindu Brahmin and that the marriage was according to Hindu rites. In cross-examination before charge, however, the complainant admitted he was a Sikh and not a Hindu. This demolishes his case entirely. A marriage between a Sikh and a Hindu even if it had actually taken place according to Hindu rites could not be legal.
2. I shall return to this judgment later, but here it may be noted that there was evidence on the complainant's side regarding the following points; that though he was a Sikh, Inder Singh claimed nevertheless to be a Hindu Brahmin; that Durgi was a Hindu of the Brahmin caste; that a ceremony of marriage had taken place; that it was according to Hindu rites. The present rule is against the order of the learned Additional District Magistrate, dismissing the petitioner's application for a further inquiry, and in support of it, Mr. Roy Chaudhuri has urged that the a Magistrate erred in holding, as lie has in effect held, that no valid marriage could take place between a Sikh Brahmin man and a Hindu Brahmin woman. Mr. Roy Chaudhury has contended that a marriage between such parties according to Hindu rites is perfectly valid, and there is evidence that such a marriage in fact took place. Therefore two questions arise : (1) A question of capacity - can there be a valid marriage between a Sikh man, who claims to be a Brahmin and a Hindu woman who is of that caste? (2) A question of the binding nature of the ceremony - would a ceremony which would be b binding in the case of Brahmins, be binding in the present case?
3. As the case is one of importance, as it is not entirely free from difficulty and as no one appeared to show cause, we requested Mr. Hiralal Chakravarti to assist us as amicus curiae. We are obliged to him, as well as to Mr. Roy Chaudhuri, for indicating the path of our inquiry and for directing our attention to authorities, both historical and judicial which illuminate that path. The argument which favours the view that the marriage is valid is briefly as follows : Amongst the Sikhs there is a branch of the community which recognises caste. Such caste is referable to Hindu ancestors, and is merely a continuation or perpetuation through heredity of the Hindu caste into which the ancestor was born. Its legal significance for purposes of marriage in the case of those Sikhs who have never really abandoned caste, depends upon whether such Sikhs are governed by the Hindu law of marriage. This question in its turn depends upon whether the Sikhs who recognise caste can be regarded as ever having completely left the Hindu fold. If they cannot be so regarded, then they are governed by the Hindu law. But even if it cannot be strictly said that Sikhs are still Hindus in the true religious sense they would nevertheless still be governed by Hindu law in those matters regarding which no other law has been either enacted by statute for the Sikhs, or established by custom amongst them. In this connexion it is pointed out that amongst the Sikhs a form of marriage known as the 'Anand' form grew up by custom, and was later given statutory recognition. But this it is said is an optional and alternative form of marriage, and if a Sikh wishes to be married according to Hindu rites there is nothing to prevent him from so doing provided there is no caste barrier to the union. With marriage in the Anand form we are however not concerned here. We have been invited to consider the outlines of religious movements amongst the Sikhs for the purpose of deter, mining whether the petitioner upon his own profession can be deemed to belong to a community which, though they are Sikhs have never really abjured the essentials of Hindu, ism. The facts of history, it is said, are these:
Guru Nanak who founded Sikhism, and was the first of Sikh gurus, broke away not from Hinduism, but from certain features of that religion which he considered objectionable. Nanak and his followers were really dissenters who aspired to establish a reform, ed and purified Hinduism. Nanak preached a monotheism similar to that of Hinduism in Vedic times. He disapproved of caste, preached against idolatry and condemned the veneration of saints, pilgrimages, and worship at shrines. Even so caste was not altogether abolished, some Brahminieal rites continued to be observed, and Brahmin priests were employed for the performance of those rites. One of Guru Nanak's sons Sri Chand in fact founded a monkish order known as the Udasi order which was a reversion to the Hindu religious type. It was not until the time of the tenth and last Guru, Govind Singh, that a fundamental cleavage from Hinduism was attempted. Gobind Singh sought to establish a military and political community which in religious matter, would be self-contained, and independent of Hinduism. Admission to this community was by a formal ceremony of initiation called the Pakul or Amrit Soka. All persons so initiated were to be known as Singhs, and were to keep on their persons the five 'kakas,' viz., Kes (longhair) khanga (a comb) kara (a bangle) kripan (a short sword) and kach (shorts). Govind Singh abolished caste altogether and admitted even untouchables as Singhs. He also did away with the Hindu rites such as Kiria and Sradh, prohibited worship of shrines and samadhs and rejected the Hindu religious books, the Vedas, Purans and Shastras. The strict followers of Guru Gobind Singh, known also as the Akalis, declared that they were not Hindus. But great numbers of Sikhs remained, and were also called Singhs, who did not follow all the precepts of Guru Gobind. The Sahijdharis, for instance, continued to worship Hindu idols, to observe Brahminical rites, and to perpetuate caste. On behalf of the petitioner here, it is stated that he is such a Sahijdhari Sikh. A wealth of historical writing has been cited to illustrate and support the brief account just set out. It is unnecessary to refer to this literature at length, but I would reproduce here a few passages culled from well-known authorities. In his 'Evolution of the Khalsa,' Vol. 1 at p. 143, Mr. Indu Bhusan Banerjee says:
Sikhism, no doubt, had its start in a protest but it was a protest against conventionalism and not against Hinduism. In Nanak, perhaps, the reaction reached its limits and therefore gave a poignant tone to many of his utterances which at first sight give the impression that his was a destructive and revolutionary ideal. But there is no satisfactory evidence that he wanted to overturn the social order.
4. In a passage in Trumpp's 'The Adi Granth, Introduction, page cxii, quoted in the judgment of Zafar Ali J., in Basant Das v. Hem Singh ('26) 13 A.I.R. 1926 Lah. 100 at page 282, it is stated:
The dignity of the Brahmins as family priests, etc., was left untouched and of nearly all the Gurus it is reported, that they had their family priests, though the teaching of the Brahmins, as well as the authority of the Vedas and Purans, is often reproved. It was the last Guru, Gobind Singh, who positively prohibited the employment of Brahmins in any capacity, and introduced a new ritual partly taken from the Granth, and partly from his own compositions.
5. In Macauliffe's work 'The Sikh Religion' vol. 1, Introduction, page lvii, the following view is expressed:
Hinduism has embraced Sikhism in its folds: the still comparatively young religion is making a vigorous struggle for life but its ultimate destruction is, it is apprehended, inevitable without state support. Notwithstanding the Sikh Guru's powerful denunciation of Brahmins, secular Sikhs now rarely do anything without their assistance. Brahmins help them to be born, help them to wed, help them to die and help their souls after death to obtain a state of bliss. And Brahmins, with all the deftness of Roman Catholic Missionaries in Protestant countries have practically succeeded in persuading the Sikhs to restore to their niches the images of Devi the Queen of Heaven, and of the saints and Gods of the ancient faith.
6. In Dalip Kaur v. Mt. Fatti ('13) 99 P.R. 1913, Rattigan J., referred to Sir Denzil Ibbetson's Report on the census of the Punjab in 1881, where it was observed that Sikhism had assumed two very different forms at different periods of its history, one being the tolerant quietest doctrines of Nanak and another the military propoganda of Gobind Singh:
The admission of all castes to equality by Guru Gobind disgusted many of the higher classes who refused to accept his teachings though they remained faithful to the-tenets of Baba Nanak and thus a schism arose in the faith. These two forms are still represented in the Punjab. In strictness the followers of both are Sikhs, a word said to be derived from the same root, as the common Hindu term Sevak, and meaning nothing more than a disciple; but while the followers of the first group, or Nanaki Sikhs, are Sikhs, they are not Singhs which is the title by which the followers of Gobind, Govindi Sikhs are distinguished.
7. Regarding the limited character of the break with Hinduism, brought about by the first Guru, Nanak, the view expressed by Cummingham (History of the Sikhs edited by Garrett, at page 46) is instructive:
Thus Nanak extricated Ms followers from the accumulated errors of ages, and enjoined upon them devotion of thought and excellence of conduct as the first of duties. He left them, erect and free; unbiased in mind and unfettered by rules, to become an increasing body of truthful worshippers.... He left the progress of his people to the operation of time, for his congregation was too limited, and the state of society too artificial to render it either requisite or possible for him to become a municipal lawgiver to subvert the legislation of Manu; or to change the immemorial usages of tribes or races.
8. In foot-note to this statement, Malcolm (Sketch) is cited for the proposition that Nanak made little or no alteration in the civil institutions of the Hindus; and Ward (The Hindus) is cited for the proposition that the Sikhs have no written civil or criminal laws. The foot-note goes on to say:
Similar observations of dispraise or applause might be made with regard to the Code of the early Christians, and we know the difficulties under which the apostles laboured, owing to the want of a new declaratory law or owing to the scruples and prejudices of their disciples.
9. I would conclude the references I have made to historical materials with a few quotations from the article entitled 'Sikhs' in the Encyclopaedia Britannica, in which the community is described as:
a sect of dissenters from Brahminical Hinduism.... Nanak's faith was sternly monotheistic He taught the worthlessness of religious vestments, of ostentatious prayer and penance, pilgrimages and fanes. He declared that all men had a right to search for the knowledge of God, irrespective of caste.... The tenth and last guru was...Govind Rai, who took the affix Singh, 'lion' in lieu of Rai and remodelled the Sikh organisation which he renamed Khalsa, 'pure.' He made the Sikh initiation (pahul) a rite of admittance into a militant order.
10. Dealing with the history of Sikhism in the 19th century, the article states that the differences with Hinduism tended to be suppressed, and observes that Sikh ascetics used to make pilgrimages to Hindu temples, and that the Udasi order became hardly distinguishable from a Hindu religious sect:
The Nirmalas were not quite re-Hinduised but the general tendency of the Sikh laity was towards emergence into Brahminism. Only the more ardent followers of Gobind Singh preserved their distinctive tenets, dress, and protestant anti-Brahminical attitude.
11. Turning now to judicial authorities, there is a decision of the Punjab Court which is of great importance for the side light which it throws upon the question we are here considering. Basant Das v. Hem Singh ('26) 13 A.I.R. 1926 Lah. 100 was a case which arose out of a suit for the removal of the mahant of an Udasi shrine and for the appointment of a committee to manage the affairs and the property of the shrine. The defendant mahant was a Sadhu of the Udasi order which had been established by Sri Chand, a son of Guru Nanak, and the plaintiffs were all Singhs being the followers of the last of the Gurus, Govind Singh, and they professed not to be Hindus. The main contention advanced by the defence was that the plaintiffs had no right to interfere with an Udasi shrine which was in inception a Hindu institution. It was held inter alia that Udasis were Hindus as well as Sikhs, and that the term 'Sikh' includes the followers of all the gurus; further that 'Sikh' and 'Singh' are not inter-changeable terms, the Singhs being confined only to the followers of Guru Govind Singh. Zafar Ali J. in an illuminating judgment, referred to the doctrines of Nanak and of Govind Singh.
Nanak condemned the exaggerated observance of caste and received all men as his disciples without any regard to caste, but he did not attempt to abolish it and married his own children within his Khatri caste. Govind Singh on the other hand, abolished caste altogether and admitted untouchables also into the pale of Singhism. Further he abolished Kiria, Sradh and all other rites and ceremonies of Hindu origin and strictly prohibited the adoration of samadhs (tombs of saints) and rejected the authority of the Vedas, Purans and Shastras.
12. It was further observed that all the gurus with the exception of the last, remained within the pale of Hinduism, so much so that each employed a Brahmin priest. The judgment goes on to say:
Where a Brahman was employed as a family priest, it is natural that all rites and ceremonies at a birth, death or marriage were performed in accordance with Hindu religion. Nanak himself performed the Shradh of his deceased father (Trumpp p. lxxv), and he remained a thorough Hindu according to all his views (Trumpp p. ci). Govind Singh was in his youth a special votary of the Hindu Goddess Durga and at the instance of the Brahmans he in his early life cut off the head of a disciple and offered it to the Goddess (Trumpp p. xc). All this very clearly indicates that Nanak as well as the gurus that succeeded him except the last were Hindus.
13. Harrison J. agreeing with Zafar Ali J. observed:
It appears to me to be established as a historical act that at the end of the 15th century a great religious teacher known as Guru Nanak, undertook the task of simplifying, purifying and popularising the Hindu religion, which in his opinion, had become overgrown by elaborate ritual and ceremonial.... While doing so he never attempted to attack or undermine the foundations of the Hindu religion, such as transmigration of souls and 'Karma.'
14. Harrison J. rejected the proposition that the essentials of Hinduism, without which Hinduism cannot exist are caste, idol worship, and the worship of the Vedas and Purans. He said:
The great teacher Swami Dayanand who founded the Arya Samaj denounced the doctrine of predetermined caste and the practice of idol worship as clearly and as emphatically as any Sikh, and his followers most assuredly claim to be and are universally accepted as Hindus.
15. Some other decisions of the Punjab Court may be noted : Bhagwan Singh & Co. v. Bakhshi Ram ('33) 20 A.I.R. 1933 Lah. 494 it was held that in the case of Sikhs there is a presumption that the Hindu law of joint family applies to them. In Sohan Lal v. Kartar Singh ('34) 21 A.I.R. 1934 Lah. 800 it was held, relying on the decision of the Privy Council in Bhagwan Kuar v. J.C. Bose ('04) 31 Cal. 11, that in matters concerning the alienation of property, Sikhs must, in the absence of proof of any custom, be held to be governed by Hindu law. In the decision of the Privy Council in Bhagwan Kuar v. J.C. Bose just referred to also reported in Bhagwan Kuar v. J.C. Bose ('04) 31 Cal. 11 it was held that both in the Succession Act (Act 10 of 1865), Section 331, and in the Probate and Administration Act (Act 5 of 1881), Section 2, the term Hindu on its true construction included Sikh. At pages 253 and 251 of the Report there appears a passage in the judgment which should be quoted in extenso, as it affords valuable guidance in the solution of all questions relating to the applicability of Hindu law to Sikhs. Sir Arthur Wilson who delivered the judgment of the Board said:
A long series of legislative provisions have been enacted for the purpose of securing to the people of India the maintenance of their ancient law, amongst others in matters of inheritance and succession, and many minor enactments have been passed to facilitate the administration of the laws so preserved. The object and principle of this legislation has been throughout to enable the people of various races and creeds in India to live under the law to which they and their fathers had been accustomed, and to which they were bound by so many ties. The framers of the earlier Acts, regulations and charters had a less detailed acquaintance than we have now with the diversities of creed and of religious law existing in India. They were familiar with two great classes, Mahomedans and Hindus, each with its own law bound up with its own religion. They thought no doubt that they were sufficiently providing for the case by securing to Mahomedans the Mahomedan law, and to Hindus (or Gentus, as they were sometimes called) the Hindu law. In process of time it became more and more clearly understood that there were more forms than one of the Mahomedan law, and more forms than one of the Hindu law, and the Courts, acting in the spirit which prompted the legislation, have applied the law of each school to the people whose ancestral law it was. In the same way it came to be known that there were religious bodies in India which had, at various periods and under various circumstances, developed out of, or split oft from the Hindu system, but whose members have nevertheless continued to live under Hindu law. Of these the Jainas and Sikhs are conspicuous examples. Their cases had to be considered by the Courts, and in dealing with them a liberal construction was always placed upon the enactments by which Mahometans and Hindus were secured in the enjoyment of their own laws.
As to Jainas, the Courts in India always applied the Hindu law generally to their cases in the absence of custom varying that law. This course was approved by this Board in Sheo Singh Rai v. Mt. Dakho ('75-77) 1 All. 688 and Chotay Lall v. Chunno Lall ('79) 4 Cal. 744.
The case of the Sikhs came up for consideration for the first time, so far as their Lordships are aware, before the Supreme Court in Calcutta, in Doe d. Kissemchunder Shaw v. Baidam Bibi, reported briefly from Sir E. Hyde Bast's notes in 2 Morley's Digest, 22. In the previous volume of the same work (at page clxxvii) a statement is quoted, made to a Parliamentary Committee in 1830 by Sir E. Hyde East, by whose Court the case just mentioned was decided. He said of that case : 'The difficulty was gotten over by considering the Sikhs as a sect of Gentoos or Hindus, of whom they were a dissenting branch.
From that time to the present the same view has been acted upon by the Indian Courts, and particularly (as has been pointed out by the learned Judges of the Chief Court in the present case) by the Courts of the Punjab, which is the real home of the Sikhs.
16. In Sohan Singh v. Kabla Singh ('28) 15 A.I.R. 1928 Lah. 706, the principal question raised concerned the validity of a marriage between a Sikh Jat male and a Mazhabi female. It was held that Mazhabis and other untouchables must be treated as Sudras for purposes of marriages inter se between different sub-divisions of the Sudra caste, and that such marriages are legal under the Hindu law as administered in British India. It was further held that the marriage was legal whether performed in the Anand form or according to ordinary Hindu ceremonies. This decision would support the view that a Hindu ceremony of marriage would bring about a valid marriage between a Sikh Jat and a sudra woman, because both parties were sudras and as such governed by the Hindu law, and that a Sikh Jat although a Sikh may be considered to be a Hindu also for purposes of marriage. Dalip Kaur v. Mt. Fatti ('13) 99 P.R. 1913 was a case in which the validity of a marriage between a Sikh man and a woman who was originally a Mahomedan was considered. The woman who had been divorced from her Mahomedan husband, was converted to Sikhism by a process called a ceremony of purification, and discarding her Mahomedan name, she had adopted the name of Lai Kaur. She went through with the Sikh a form of marriage which 'was called 'Chadar Andazi,' and which was a recognised but somewhat informal mode of nuptial., There, after she cohabited with the Sikh till his death. It was held that these facts per se raised a presumption in favour of the validity of the marriage, and unless the person who challenged the marriage could show that the marriage was actually not valid in law, it would have to be concluded that the woman was the lawful wife of the man. 'Agreeing as we do, with the Divisional Judge,' said Rattigan J.,
that a marriage de facto took place, and that the late Syrdar and Mt. Lal Kaur lived together thereafter as man and wife, we must require strong and cogent evidence to justify us in accepting plaintiff's contention that the marriage was 'an idle' and 'profane ceremony.'
17. Reverting to the facts of the present case, what do we find? A Sikh man who professes to be a Hindu and a Brahmin by caste claims as his wife a woman who is stated to be a Brahmin Hindu. There is evidence that a marriage took place between the pair, and that it was solemnised in accordance with Hindu rites. There is evidence also that such marriages are prevalent between persons of the class to which the parties belong. The husband called evidence to establish the marriage, but instead of considering that evidence the Magistrate dismissed the case on the finding that a marriage between a Sikh and a Hindu, even if it had actually taken place, according to Hindu rites, could not be legal. In my judgment, this decision is erroneous, as it was the duty of the Magistrate to consider the evidence which the petitioner had adduced for the purpose of deciding firstly, whether both parties are Brahmins by caste, and secondly, whether a marriage in accordance with Hindu rites was ever solemnised between them. We are not called upon at this stage, to express an opinion on any other aspect of the case. The rule is made absolute, and the case is remanded to the learned Additional District Magistrate of Alipore to be disposed of in the light of the observation just made.
Sen, J.
18. I agree.