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How to prove customary marriage?

Whether deft can prove customary marriage relying on evidence adduced by plaintiff even though there is not pleading to that effect in written statement?

Now when the defendant while appearing as a witness in her deposition, which deposition has remained unshattered during the ordeal of her cross-examination, has deposed that in tandem with the ingredients of the customary marriage as deposed by PW-1 in his deposition comprised in his cross-examination her marriage with deceased Kanwar Singh was solemnized in consonance with or in conformity with the observances and rituals of the custom prevailing in the area where both were residing. Further more, when the witnesses of the defendant, namely, DW-5 Prem Dutt and DW-7 Mohan Singh, have also deposed in corroboration to the deposition of DW-1, Tara Devi of her marriage having been solemnized with deceased Kanwar Singh in conformity with the custom prevalent in the area, where both were residing. Consequently, it has to be aptly concluded that the marriage inter se the deceased Kanwar Singh and defendant/respondent was solemnized in consonance with the custom prevailing in the locality or the area where both the defendant/respondent and deceased Kanwar Singh were residing. Now the effect of the aforesaid discussion, more particularly of PW-1 in his cross-examination conveying acquiescence and admission besides, communicating the elements, traits and characteristics which inhered in the custom in consonance whereof the marriage of deceased Kanwar Singh was performed with the pre-deceased wife of the latter in consonance with and in conformity whereof also the marriage of deceased Kanwar Singh was performed with the defendant/respondent herein relieves the rigour of enjoining the defendant to plead the elements and traits of the custom in consonance or in conformity whereof her marriage with deceased Kanwar Singh was solemnized. It also, hence, when loudly communicated in the deposition of PW-1, hence, estops the counsel for the plaintiff to contend that such, traits and elements or observances or rituals inconsonance whereof the marriage of the defendant/respondent herein was solemnized with the deceased. Obviously, then the aforesaid traits and characteristics are to be concluded to be constituting the tenets and canons underlying the custom, dehors the absence of adduction by the defendant of the wazib-ul-arz spelling out the existence of customary marriage in the area where both were residing. Preponderantly, when the said elements, characteristics and traits of the custom exist in the cross-examination of PW-1, then the necessity of pleading of its traits and characteristics also ought not to baulk, estop or stand in the way of reading evidence as adduced by the plaintiff as also evidence in tandem thereto adduced by the defendant, in proof of the ingredients of the custom, even if the said ingredients have remained un-pleaded in the written statement.
13. Reinforcingly, the aforesaid discussion underlines the factum of admission qua the characteristics and traits of the custom deposed by the plaintiff's witness constituting admission as well as estopping the counsel for the plaintiff from forbidding or interdicting this Court from reading the evidence led by both the plaintiff and the defendant in proof of the custom or observance of rituals for sanctifying the marriage performed in conformity thereof inter se the defendant/respondent with deceased Kanwar Singh besides, it operates as an exception to the rule that evidence when not pleaded is discardable or excludable.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.263 of 2003.
Decided on: 18th March, 2015.
Ms kavita
VERSUS

Smt. Tara Devi

Coram
The Hon’ble Mr.Justice Sureshwar Thakur, Judge.
https://www.lawweb.in/2015/06/whether-deft-can-prove-customary.html