Bharwad Kama Bijal vs Bai Mina Nongha and Another

Baxi, J.—The facts cut of which this appeal arises may be briefly stated as follows:

(2). The parties are Bharwads of Machhukatha. The Respondent No. 1 Bai Mina was married to Jasa Vira who died shortly after the marriage.

Mina lived for some time after her husband''s death with her brOrs. -in-law and with her brother Monm Nongha who is Respondent No. 2 in this

appeal. She then went to live with the Appellant Kama. Respondent No. 2 did not like this and removed her from Kama''s house Kama thereupon

started proceedings against the Respondent No. 2 in the Court of the Special Diwani Nyayadhish of the Morvi State and prayed for restoration of

the girl to him alleging that Mina had contracted re-marriage with him which is known as the Dervata remarriage and which is peculiar to their

caste. According to this form of remarriage a widow must remarry her deceased husband''s younger brother or a collateral within a certain degree

of relationship. The special Diwani Nyayadhish held that though the Dervata was not proved and could not be legally contracted by Mina with the

Appellant it was proved that she had contracted a ghargharna marriage with him and directed him to pay Rs. 600/- as vel money under Rule 7 of

the printed caste rules sanctioned by the State and published in the Gazette. He also directed the Respondent to restore Mina to the Appellant. In

these proceedings the Respondent had executed a bond undertaking to produce Mina when called upon and to pay Rs. 1000/ - as penalty if he

failed to do so.

The Respondent No. 2 appealed against this decision to the Sar Nyayadish who dismissed the appeal by his order dated 12-7-45. In this appeal,

Respondent No. 2 had filed an applications that the bar Nyayadhish should recommend to the Member of the State Council in charge of this

department that the parties should he referred to a Civil Court. The learned Sar Nyayadhish rejected this application also. In the meanwhile i.e.,

during the pendency of this appeal Respondent No. 2 gave away Mina to one Jodha of Ahmedabad, and consequently the Special Diwan

Nyayadhish ordered his bond to be forfeited. In an appeal from the Special Diwani Nyayadhish''s order forfeiting the bond (Nat appeal No. 11 of

1946-47) the learned Sar Nyayadhish by his order dated 8-2-47 (Ex. 18) not only confirmed it but held that by removing Mina from the

jurisdiction of the Morvi State and re-marrying her at Ahmedabad the Respondent No. 2 had committed a breach of Rule 15 of the caste rules and

ordered him to pay Rs. 2000/- as vel money to the Appellant Kama and to pay a fine of Rs. 200/- to the caste. The learned Sar Nyayadhish

further ordered him to be ex-communicated until he carried out the order. It should be stated here that the order to pay vel money and fine could

only be make on the assumption that Mina was remarried to Kama by ghargharna a finding which the Sar Nyayadhish had confirmed as early as

12-7-45. The Respondent appealed against this order to the State Council which by its order dated 27-2-47 (Ex. 19) ordered him to proceed

under the Hazur order No. 5068 dated 27-9-42 under which the parties may, after obtaining permission of the Member of the State Council

concerned, have recourse to a Civil Court. The Respondent thereafter applied to His Highness the Maharajah Saheb of Morvi against the Sar

Nyayadhish''s order and prayed that the present Appellant Kama may be directed to approach a Civil Court to establish the marriage but His

Highness ordered him to prefer his application to the Nyay Court. In the context of the Hazar Order No. 5068 His Highness'' order must he

construed as requiring the Respondent to pre sent his application to the Special Diwani Nyayadhish and the Sar Nyayadhish as provided by that

order. His Highness'' order (Ex. 2) is dated 5-10-47 and the present suit is filed by the Respondent on the strength of that order.

The Respondents allege in this suit that Mina was not the lawfully married wife or Kama, that the proceedings and orders of the Special Diwani

Nyayadhish set out above were without jurisdiction and prayed for a declaration that as Mina was not the lawfully married wife of Kama, the

Plaintiff-Respondents were not liable to pay vel to Karma or fine to the accused and that the Defendant-Appellant was not entitled to ask for any

sum for vel money They also prayed for a declaration that the Respondent No. 2 was not liable to have his bond forfeited. The Appellant had

raised a number of defences in the trial Court but the defence which now survives was whether the cognizance this suit by the Civil Court was not

expressly barred by the law of the Morvi State which brought into existence the Court of the Special Diwani Nyayadhish and invested it with

exclusive jurisdiction to try disputes arising out of caste rules. The Appellant had also contended that Mina was lawfully re-married to him.

The learned Civil Judge held that the Civil Court''s jurisdiction was barred and therefore dismissed the suit. He did not enter into the question

whether Mina had in fact contracted a ghargharna re-marriage with Kama. In appeal the learned Assistant Judge held that the question whether the

Respondent No. 1 Mina was the lawfully married wife of the Appellant Kama was one of status and essentially of a civil nature and the Civil

Court''s jurisdiction to try the suit was not barred by any law of the Morvi State. He also held that the alleged ghargharna was not proved. As a

result of these findings, he gave the declaration that there was no ghargharna or any bind of marriage between the Respondent Mina and the

Appellant Kama, and therefore there was no liability to pay any vel money to Kama on Mina''s remarriage with Jodha. He dismissed the Plaintiff''s

claim for relief in respect of the bond which was ordered to be forfeited by the Sar Nyayadhish. This second appeal is against the learned Assistant

Judge''s order.

The question for determination in this appeal is whether the jurisdiction of the Civil Court to entertain the suit is barred and if not what orders

should be passed. In order to appreciate the question of jurisdiction, it will be necessary to describe briefly the constitution of what were called the

Nat Courts"" in the Morvi State. Certain low castes were asked to frame rules for the management of their internal affairs and these rules were

sanctioned and registered by the State and published in the Critical Gazette. A Special Tribunal called the Not Court (or caste Tribunal) was

authorised to administer these rules. The functions of this Court were at first exercised by the Revenue Department, but in 1942 this jurisdiction

was transferred to the Diwani Nyayadhish (Civil Judge). He was styled as the Special Diwani Nyayadhish and. was directed as such Special

Diwani Nyayadhish to try caste disputes according to the rules of the castes concerned. An appeal was provided to the Sar Nyayadhish against

the decision of the Special Diwani. ""Nyayadhish and the decision of the Sar Nyayadhish was final. The order however provided for granting

permission by the Member of the State Council in charge of the Nat Department to the parties to have the question decided by a Civil Court. This

permission could be granted on the concurrent recommendation of the Special Diwani Nyayadhish and the Sar Nyayadhish. The order re-

constituting the Nat Court and transferring the jurisdiction from the Revenue Department is the Hazur order No. 5068 dated 27-9-42.

The Special Diwani Nyayadhish and the Sar Nyayadhish who exercised this jurisdiction were also the ordinary Civil Courts of the State but

while they were subject to the appellate jurisdiction of the Hazur Court and later of the State High Court in civil matters their orders when

exercising this special jurisdiction were final. The provision in the order for obtaining the permission of the Member in charge of the State Council

to institute a suit for determination of a dispute arising out of the caste rules shows that the civil Courts were precluded from entertaining a suit in

respect of any question over which the Courts of the Special Diwani Nyayadhish and the Sar Nyayadhish exercised jurisdiction.

The printed rules published in the Gazette of the Bharwads of Machhukatha have been produced in the suit and their purport has been very fully

stated by the learned Assistant Judge in his judgment. It will therefore be sufficient to state that these rules relate mainly to matrimonial matters such

as betrothals, marriages ghargharna, dervata, lakhna (divorce) the duty of the father of a bride to restore her to her husband, the duty of the

husband to maintain his wife and the forfeiture of the husband''s rights over the wife if he did not call her without sufficient reason after being called

upon to do so or if he cut off her nose or ears. They further provide for customary payments and penalties or fines in case of breach of any of the

rules by a caste-man. The payment of vel is directed to be made on the occasion of a re-marriage and it appears to me to be in the nature of

compensation to the former husband or the family of deceased husband on the occasion of a woman''s re-marriage. The rules also provide for ex-

communication and Rule 19 is in the nature of a residuary rule under which in respect of those matters which are not expressly provided in these

rules the Revenue Officer and later the Special Diwani Nyayadhish was authorised to pass orders on the advice of a majority of the patels or

leaders of the caste and impose the penalty of a fine. The order of the Sar Nyayadhish which is challenged in this suit purports to have been passed

under this rule and it cannot be seriously disputed that the Court acting as the Nat Court was the only Court which had jurisdiction to determine a

dispute under this rule and its decision could not be challenged in a Civil Court except in the manner provided under the Hazur Order No. 5068

dated 27-9-42. We have already stated that the Respondent No. 2 had attempted to obtain permission to have the question of his liability to pay

vel and fine decided by a Civil Court by means of an appeal to the State Council which directed him to proceed under the Hazur Order No. 5068.

He had also approached His Highness the Maharaja Saheb with a request that the Appellant should be referred to a Civil Court but this

application was also rejected. Therefore the orders of the Sar Nyayadhish directing him to pay vel and fine were conclusive and could not be

questioned in a Civil Court.

The suit as stated already asks for two reliefs viz. (1) a declaration that Mina is not the wife of Kama and (2) a declaration that the Respondent

is not liable to pay vel money and fine. So far as the first relief is concerned it is argued that the jurisdiction of the Civil Court cannot be barred as it

depended upon a decision of the legal relations between the parties. We concede that there is nothing in the caste rules which excludes the

jurisdiction of the Civil Courts to determine the question whether A is the wife of B and though the Nat Courts would have to determine this

question incidentally in order to enforce the rules of the caste the jurisdiction of the Civil Court cannot be barred in the absence of any express

provision to that effect in the Hazur Order. Therefore the suit so far as it relates to the claim for the, declaration that Mina is not the married wife of

Kama is cognizable by the Civil Court. The learned Assistant Judge held that ghargharna was not proved. This finding being one of fact is binding

on the Appellant in second appeal and consequently it must be held that no remarriage has taken place between her and Kama.

So far as the declaration about the Respondent No. 2''s liability to pay vel money and fine is concerned, we are of the opinion that if this

declaration is granted, it will have the effect of setting aside the order of the Sar Nyayadhish passed in the exercise of his exclusive jurisdiction. The

Respondents could not obtain the requisite permission to have this question decided by a Civil Court and consequently it would not be open to us

to hold contrary to Sar Nyayadhish''s order that the Respondent is not liable to pay vel money and fine.

The position therefore is that the suit asks for two reliefs one of which can be granted by the Civil Court while in respect of the other relief, its

jurisdiction is barred. A similar case was decided in -- Antu v. Gulam Muhammad Khan 6 All 110 (A) where the Court granted the relief which it

was competent to grant and declined the other relief. That decision is not exactly on all fours with the present case but provides a useful guide as to

what orders should be passed in such cases. Therefore following this decision, we declare that Mina is not the married wife of Kama, but this

declaration shall not affect the liability of the Respondent No. 2 to pay vel and fine under the orders of the Sar Nyayadhish dated 8-2-47 in the nat

appeal No. 11 of 1946-47. The Respondents prayer for the declaration that they are not liable to pay vel and fine is dismissed and to this extent

the appeal is allowed. In view of the peculiar nature of the question involved in this appeal we make no order for costs.

Shah, C.J.

I agree.