Law Web: What are ceremonies necessary for validating marriage of widow?

Any customary rite as spoken to by witnesses shall be

taken as sufficient proof of marriage. We should indeed push for an

agenda that approves of minimum formalities so long as the society

recognizes them as sufficient. If after the ceremonies, however

informal and modest they were, the man and woman lived together

as husband and wife and that itself ought to be taken as sufficient.

Every State has responded in its own way to approve of expression

of intentions as sufficient to supplant elaborate ceremonies. In

Tamil Nadhu, the suya mariyada (self-respect) was statutorily

recognized by an amendment to the Hindu Marriage Act in 1967. In

Punjab, it is karewa form which is the approved form of remarriage

of a widow. Even a legislation legitimizing remarriage of widows

will obtain its full value only if it approves of minimal ceremonies

accompanying such functions as sufficient to validate the marriage.

It will be abominable to look for ceremonies like saptapati, a la

brahminical form, to legitimise a customary form of marriage

prevalent among jat sikhs. Section 7(2) shall be construed to include

any minimal ceremony, sans religiosity, so long as it is acceptable to

the community. Available literature on the subject suggests that

Widow re-marriage in the kerawa form prevalent in Punjab is

known 'as a marriage by a widow with the brother or some other

male relative of her deceased husband and requires no religious

ceremonies and confers all the rights of a valid marriage'

(underlining mine; see 38 P.R. 1879; 316 of 1879; 26 P.R. 1880; 36

P.R. 1881; 48 P.R. 1890; 98 P.R. 1890; 54 P.R. 1900-reproduced

from punjabrevenue.nic.in). In the book Haryana: Past and Present

by Suresh K.Sharma (Mittal Publications, 2006), it is stated (at page

45) "Karewa or a widow marrying one of the brothers of her

deceased husband is known among the Jats, Ahirs, Gujars and

Harijans is un-accompanied by ceremonies or any kind. The woman

merely resumes her jewels and coloured clothes which had ceased to

wear on her husband's death. Sometimes, there is a public ceremony

to give it a sanctimonious touch; generally living together is held to

constitute karewa." In Women and Social Reform in Modern India:

A Reader by Sumit Sarka, and Tanika Sarkar, (Indiana University

Press, 2008), the authors state: "The agrarian needs which allowed

bride price also sanctified widow-remarriage. Like the former, this

was also a feature which the agriculturist castes shared in common

with the lower castes. However, the custom of widow-remarriage as

followed here had special features of its own. Known as kerewa,

karao, or chaddal andazi, the custom was a throw back to the old

Rig-vedic niyog (levirate marriage) which was prevalent in the

geographical region of Haryana- Punjab and associated with the

early vedic Aryan settlements. Karewa, a white sheet coloured at the

corners, was thrown by the man over the widow's head signifying

his acceptance of her as his wife. This custom represented social

consent for cohabitation. There could be certain variations. For

example, it could take the form of placing churis (glass bangles) on

the widow's wrist in full assembly and sometimes even a gold nath

(nose ring) in her nose and a red sheet over her head with a rupee

tied in one of its corners. This could be followed by the distribution

of gur (jaggery) or sweets. Significantly, this form of marriage was

not accompanied by any kind of religious ceremony, as no woman

could be customrily married twice, that is, go through the ceremony

of biah (religious wedding). After Karewa the widow merely

resumed her jewels and coloured clothes which she had ceased to

wear on her husband's death. So much so that sometimes mere

cohabitation was considered sufficient to legitmize the relationship

and it conferred all the rights of a valid marriage.

Punjab-Haryana High Court

Darbara Singh vs Jaswant Kaur on 8 January, 2014

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CORAM: HON'BLE MR. JUSTICE K. KANNAN

Citation; AIR 2014 P&H 100

I. The litigious journey so far

1. The 8th defendant in the suit is the appellant in both the

appeals before this Court. It was admitted by the 1st plaintiff that she

had been married to one Chand Singh and after his death, she

entered into the karewa form of marriage which was registered

through an instrument dated 17.05.1972. The document was also

registered. Harnek died on 16.07.1975. The suit relates to the estate

of Harnak Singh. The respondents 1 and 2 herein were the

plaintiffs. It was also pleaded that Harnek Singh had executed a

Will in favour of the 2nd plaintiff, who was the son of the 1st plaintiff

through her previous marriage with Chand Singh. The 8th defendant

alone contested the suit contending the alleged fact of karewa

marriage and the validity of the karewanama. The execution of the

Will was also denied. The contention was that the 8th defendant had

been looking after Harnek Singh during his lifetime and after his

lifetime, the property fell to his possession. The trial Court

dismissed the suit holding that the Will had not been proved and

even the marriage had not been proved. The Court held that after

coming into force of the Hindu Marriage Act, the marriage has to be

accompanied with anyone of the ceremonies mentioned in the Act to

validate the same and the mere execution of the karewanama cannot

validate the marriage. As regards the plea that the karewanama itself

must be treated as constituting a Will bequeathing the property of

Harnek Singh to pichlag son of the 1st plaintiff through Chand

Singh, the Court held that Harnek Singh could not have intended to

execute a Will through the said instrument and could not be treated

as a bequest in favour of the 2nd plaintiff. The suit was dismissed.

Both the plaintiffs 1 and 2 filed independent appeals which were

allowed and hence, the second appeals are before this Court at the

instance of 8th defendant.

II. The substantial questions of law

2. The substantial questions of law framed at the time of

arguments are reproduced to secure an appropriate focus for

consideration in this case:-

i) Whether a mere execution of karewanama without proof of governing customary ceremony to celebrate a marriage between Jat sikhs valid and impress the character of the person showing as the wife as having obtained to such a legal status?

ii) Whether the plaintiff had actually improved upon the version to set out accompaniment of religious ceremony only for the purpose of the suit, when there had been no such case at the time of mutation proceedings pending before the authorities? iii) Whether the terms of the karewanama could be treated as constituting a Will within the definition of the Indian Succession Act?

iv) Whether in any event if the karewanama were to be construed as a Will, was it not affected by suspicious circumstances as already found by the trial Court and hence invalid?

III. Validity of karewa form of marriage-Ingredients of proof

3. I will take up the issue of the validity of the karewa

marriage, for, that would decide the issue of whether the 1st plaintiff

could claim herself to be the owner of the property as a heir to

Harnek Singh and exclude the 8th defendant from claiming the

property as a collateral heir. The learned counsel appearing on

behalf of the appellant would contend that after the death of Harnek

Singh, there were proceedings before the revenue authorities for

mutation of entries in relation to the land with the village records

and at that time, specific evidence was elicited from the 1st plaintiff

that there had been no ceremony of marriage. The 1st plaintiff knew

about the futility of the claim to the status as a wife, if the ceremony

of marriage had not been proved and, therefore, a new case was

introduced as an afterthought in suit to make it appear as though that

there had been a form of marriage and karewanama was written

subsequently. The learned counsel would, therefore, argue that the

marriage was not valid and the counsel would refer me to a decision

of the Supreme Court in Bhaurao Shankar Lokhande and another

Versus The State of Maharashtra and another-AIR 1965 Supreme

Court 1564 (V.52 C 265) that held that the word "solemnize"

appearing under the Hindu Marriage Act would mean in connection

with the marriage, 'the celebration with proper ceremonies and in

due form'. It followed, therefore, that unless marriage was

'celebrated and performed with proper ceremonies and due form', it

could not be said to be 'solemnized'. I must immediately point out

that this decision was rendered in the context of a prosecution of a

criminal offence of Section 494 IPC. The standard of proof of what

would qualify as bigamy and the validity were, therefore, considered

from the extracting standard of proofs necessary in order that second

marriage was taken as established for an offence of bigamy. This

ought not to be necessarily taken as laying down a proposition that

for a karewa form of marriage, there were any particular ceremonies

and rituals that were required to be established in order that a claim

to status as a wife was possible. This was however brought out in

yet another case that went to Supreme Court from this court and

dealt with in Surjit Kaur Versus Garja Singh and others-AIR 1994

Supreme Court 135. The Court held that mere living together as

husband and wife would not confer the status as such and if the

nature of ceremonies performed were not brought out, the customary

form of marriage cannot be upheld. In that case, there was evidence

that apart from the karewanama, the ceremonies of marriage were

performed in the village and gur was distributed. The Supreme

Court confirmed the judgment of the High Court and held that the

marriage that is proved must be a marriage which was a valid one

and in that case that a valid marriage had not been proved. I would

Kumar Sanjeev

2014.01.08 14:51

I attest to the accuracy and

integrity of this document

chandigarh

Regular Second Appeal No.606 of 1986 (O&M) -6-

find this judgment as not laying down any law that any detailed

ceremonies were required or that any particular ceremony had been

found as necessary. The case must be confined to treatment of fact

by the High Court as not establishing a marriage and the Supreme

Court itself as not disturbing the finding of the High Court. As a

principle of law, all that could be stated is that the ceremony shall be

that which custom recognized.

4. The learned counsel appearing on behalf of the appellant

will bring before me certain vital contradictions in evidence even as

regards the alleged ceremonies accompanying the karewa marriage.

PW3-the 1st plaintiff would state that the karewa ceremony had been

performed about 6/7 months after the demise of Chand Singh. She

also admitted that karewanama itself did not disclose any

ceremonies as having been performed. The father of the 1st plaintiff

Kapoor Singh was examined. He was 80 years of age. His evidence

was given in 1981 and would state that the karewa marriage was

solemnized 4 years ago, which would take the period to be

somewhere around 1977. He would at the same time also state that

the Chand Singh died about 10 years ago which was a manner of

eliciting a contradiction to the 1st plaintiff's version that she

contracted a karewa marriage after 6 or 7 months after the demise of

Chand Singh. The witness however give the details of the ceremony

that he had tied the turban on the head of Harnek Singh and he in

turn put chaddar on Jaswant Kaur. Thereafter gur was distributed.

He spoke about the shagun as having been given by him. Numberdar

Kartar Singh, Sarpanch Naranjan Singh, Jagroop Singh and Sardara

Singh who were all present there. After the karewa, Jaswant Kaur

lived at the house of Harnek Singh as wife. He would also state that

the parties were Jats by caste and dependent on agriculture. There

was no particular ceremony in karewa marriage. He would admit

that shagun was not entered in the ledger. PW5 Jagroop Singh was

the Numberdar, who claimed that both Chand Singh and Harnek

Singh were his father's brothers. He also gave evidence about the

fact that after the karewa, Harnek Singh and Jaswant Kaur lived as

husband and wife. PW6 was the document writer for karewanama.

PW7 would recall the karewa as having been performed in May

1972 and he was present there being a Sarpanch. He also spoke

about the fact that the father of the plaintiff had tied the turban to

Harnek Singh and shagun was given.

The averments in the plaint is as follows:-

".........After the death of Chand Singh, the plaintiff Jaswant Kaur entered into kerewa marriage with Harnek Singh according to customary rights. A kerewanama in this behalf was also executed by Harnek Singh and Jaswant Kaur on 17/5/1972, and was got registered with the Sub Registrar, Sangrur on the same date. ...."

The further details of marriage are given as under:-

"That as already submitted Chand Singh and Harnek KumarSingh deceased were jat sikhs by caste. The plaintiff and Kapur Singh father of Jaswant Kaur are also jat sikh by caste and agriculturists by profession for the last several generations. They furnish namberdars and form part village community (sic). They are governed by customary law in the matters of marriage, remarriage, divorce and other matters according to which a widow can enter into a kerewa marriage with another person without performing any religious ceremony and the kerewa marriage thus performed confers all the rights of a valid wife on such a woman, who has entered into kerewa marriage. She is entitled to inherit the estate of the deceased 2nd husband as his lawfully wedded wife."

5. The counsel for the respondents would state that all

these details have been brought forth for the first time in the plaint,

since she did not give details of the customary rights before the

revenue authorities in the mutation proceedings. I will not take this

lapse as very material, for, ceremonies attendant at marriage are to

bring legitimacy in relationship and bring a certain solemnity to the

occasion, as recognized by custom. Karewa form of marriage itself

was a social response to bring respectability to young widows, who

were rehabilitated by marriage to certain class of persons, such as,

the deceased husband's brother or any such near relative. It is not

expected that such forms of marriage would be attendant with any

elaborate ceremonies. The Hindu Marriage Act does not prescribe

any particular ceremonies. Section 7 reads:

"Ceremonies for a Hindu marriage

(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

(2) Where such rites and ceremonies includes the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken."

IV. Karewa form of marriage-a social response to bring respectability to widow through remarriage-elaborate ceremonies, unnecessary.

6. Any customary rite as spoken to by witnesses shall be