https://www.indiankanoon.org/doc/21026/
Bombay High Court
Virendrakumar S/O Gulabchand ... vs Preeta W/O Virendrakumar Runwal on 18 March, 2009
Bench: P. R. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 286 OF 2008.
Virendrakumar s/o Gulabchand Runwal ...Appellant Versus
Preeta w/o Virendrakumar Runwal ...Respondent .....
Mrs. Netrali N.Gangwal (Jain), advocate for the
appellant
Mr. P.N.Sonpethkar, advocate for the respondent
.....
CORAM : P.R.BORKAR,J.
DATED : 18.3.2009.
ORAL JUDGMENT :
1. This is an appeal preferred by the husband against whom Hindu Marriage Petition (H.M.P.) No. 79 of 2001 was filed by respondent wife Preeta for restitution of conjugal rights. The appellant husband filed Regular Civil Suit (R.C.S.) No. 57 of 2004 for declaration that marriage between parties is null and void and for perpetual injunction restraining present respondent Preeta Virendrakumar Runwal from claiming to be wife of the present appellant. Originally the proceedings for annulment of marriage were filed at the Family Court, Bijapur. By the order of the Supreme Court said proceeding registered as suit was transferred from the Family Court, Bijapur to the court of Civil Judge Senior Division, Parbhani and the proceedings was renumbered as R.C.S. No. 57 of 2004 filed by husband-appellant. Both (-2-)
H.M.P. No. 79 of 2001 filed by wife for restitution of conjugal rights and R.C.S. No. 57 of 2004 for declaration that marriage is null and void and injunction were heard together and decided by the common judgment by the learned Civil Judge Senior Division, Parbhani on 25.11.2005.
2. As against the common judgment and decrees passed in said two proceedings, the wife filed common appeal bearing Regular Civil Appeal No.120 of 2005 which came to be decided by the Principal District Judge, Parbhani on 3.1.2008. In para 6 of the judgment the learned Judge has referred to necessity of filing two separate appeals against decisions in two separate proceedings, namely, H.M.P.No.79 of 2001 and R.C.S.No.57 of 2004. He observed that the appeal suffers from irregularity and he gave directions regarding recovery of court fee in appeal against the decree in R.C.S. No.57 of 2004 from the appellant. The Trial Court allowed R.C.S. No. 57 of 2004 and gave declaration that the marriage between Virendrakumar and Preeta was null and void and he also granted perpetual injunction restraining Preeta from claiming herself to be wife of Virendrakumar. He dismissed H.M.P.No. 79 of 2001 filed for restitution of conjugal rights. The learned Principal District Judge, Parbhani while deciding the common appeal bearing Regular (-3-)
Civil Appeal No. 120 of 2005 on 3.1.2008 allowed the appeal and set aside the decree passed in R.C.S.No. 57 of 2004 and dismissed it and allowed H.M.P.No.79 of 2001 for restitution of conjugal rights. It is this judgment and decree which is challenged in this Second Appeal.
3. Heard Mrs. Netrali N.Gangwal (Jain), advocate for the appellant husband and Mr. P.N.Sonpethkar, advocate for the respondent wife.
4. The substantial question of law that arises for consideration in this appeal is whether respondent Preeta proved that there was custom of private divorce with mutual consent in her community and accordingly her marriage with Rajendrakumar Gilda had been dissolved.
5. So on said point this Second Appeal is admitted. The learned advocate for the respondent waives notice after admission. With consent of both sides and as per order passed by this court earlier on 3.2.2009, the appeal is forthwith taken up for final hearing and is being decided finally at admission stage.
6. Mrs. Jain, advocate relied upon the case of Yamanaji H.Jadhav vs Nirmala [AIR 2002 SC 971] and argued that there was no pleading, but during evidence the wife (-4-)
Preeta came with a case that there was custom of divorce by mutual consent and accordingly divorce-deed was executed between her and Rajendrakumar Gilda who was her first husband and after dissolution of their marriage, she remarried the present appellant Virendrakumar and as such her marriage with Virendrakumar is not void as per Section 5(i) of the Hindu Marriage Act, 1955. She also argued that the custom or divorce deed are not duly proved and hence the suit of the appellant ought to have been decreed.
7. In R.C.S.No. 57 of 2004 Virendrakumar in para 4 has specifically stated that his marriage with respondent Preeta had taken place on 17.1.2001, but the marriage is invalid as the marriage of Preeta with Rajendrakumar Gilda who was her first husband was not dissolved and as such relationship as husband and wife between Rajendrakumar and Preeta continues. In para 3 of the plaint it is stated that one Sumanbai on behalf of parents of respondent Preeta proposed name of defendant Preeta. The plaintiff/appellant was given understanding that the defendant was given in marriage to one Rajendrakumar Gilda of Shahada (Maharashtra) and that defendant and Rajendrakumar Gilda could not pull on well and, therefore, divorce had taken place between them and thereafter plaintiff agreed to marry. It is further stated in para 4 (-5-)
that when respondent Preeta was staying at Bijapur, she was talking with Rajendrakumar Gilda on telephone and this conduct on the part of defendant Preeta, forced him to verify whether really there was divorce between respondent Preeta and Rajendrakumar Gilda. After thorough inquiry through relatives in Maharashtra, plaintiff/appellant came to know that marriage tie between respondent Preeta and Rajendrakumar Gilda of Shahada still subsists, as there was no valid divorce between them. In para 5 it is specifically stated that on the date of marriage of the appellant and the respondent, the marriage between respondent Preeta and Rajendrakumar Gilda subsisted and, therefore, there could not be valid marriage between the appellant and the respondent.
8. To this in para 5 of the written statement, it is stated that no particulars were given as to when and on what date there was contact on telephone between respondent Preeta and Rajendrakumar Gilda. It is denied that plaintiff made any inquiry through his relatives in Maharashtra to know whether really the marriage of respondent Preeta with Rajendrakumar Gilda was subsisting or was dissolved. It is denied that the respondent and her parents and Sumanbai suppressed the facts. It is further denied that the marriage of respondent Preeta with Rajendrakumar was subsisting on 17.1.2001 when the (-6-)
marriage of appellant and respondent took place. So simply there is assertion that there was divorce. It is not stated in the written statement as to when and how the divorce had taken place. It is not even whispered that there was any custom of divorce by mutual consent in the community of Rajendrakumar Gilda or the respondent and accordingly there was divorce between respondent Preeta and Rajendrakumar Gilda. No issue came to be framed regarding custom as there was no pleading.
9. In the case of Yamanaji (supra) the Supreme Court has laid down law in para 7 that as per Hindu law administered by Courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception when it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy.
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10. Learned advocate Shri Sonpethkar relied upon same case and argued that matter ought to have been remanded and opportunity should have been given to the respondent wife to plead and prove custom. In the case of Yamanaji (supra) the Supreme Court did remand back the matter to the Trial Court to frame an appropriate issue in respect of existence of provision of customary divorce in the community of parties to the proceedings. It had also granted permission to amend pleadings if parties so desire and also for leading evidence to the limited extent of proving provisions of customary divorce. However, we will have also to consider other facts mentioned in para 7 of the judgment. In that case it is observed in the earlier portion of para 7 that both courts below in that matter had erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which was acceptable in law. The same paragraph further discloses that in the courts below (in that matter) the parties did not specifically join issue in regard to the question of custom and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged, but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or written statement was held not sufficient to permit the court to countenance the (-8-)
plea of customary divorce unless and until such customary divorce is properly established in a court of law.
11. In the present case there is nothing on record to show that present respondent Preeta had no sufficient opportunity either in the Trial Court or in the First Appellate Court to seek permission for amendment and incorporate pleadings regarding alleged customary divorce in her written statement. Moreover, even during evidence in court not a word about custom is stated. The learned advocates of both sides have taken me through the entire evidence of respondent Preeta at Exh.23 and her witness Abhaykumar at Exh.28. In her examination-in-chief which is in the form of affidavit not a word is said about the alleged custom and divorce. In cross-examination, however,she was put certain questions and she stated that she was of Jain Marwari community. Her marriage with appellant Virendrakumar was her second marriage. She had earlier entered into marriage with Rajendrakumar of Shahada, District Dhule and she gave birth to a daughter Preksha from first husband. She further stated that after dispute arose with the first husband she deserted him. No proceedings were filed in the court. The divorce-deed was registered. She did not know the address of the registration office in which the divorce-deed was registered. She then stated that there was custom in (-9-)
their community to give private divorce. Suggestion that there was no such divorce was denied. According to her in such private divorce, relatives of both sides hold a meeting, discuss and then divorce is given and accepted. No divorce-deed was referred to by this witness to prove the document.
12. Witness Abhaykumar in his examination-in-chief has not stated anything regarding the first marriage of respondent or the divorce between respondent Preeta and her first husband. In cross-examination he stated that he is Marwadi Shwetambar Jain. He admitted that marriage of respondent Preeta with the appellant was her second marriage. The surname of first husband was Gilda. There was divorce between respondent and her first husband. It was divorce with consent of both. Divorce was not through court. Thus not a word about custom is stated by this witness.
13. Custom is a long standing practice followed and recognised by particular community. So in the circumstances it will have to be stated as to which persons from the same community had obtained divorce as per custom, what was the custom and since when such custom was being followed. No such details are given either in pleadings or in evidence.
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14. The learned Principal District Judge in para 9 of his judgment has observed as follows :-
" However, the petitioner has produced certified
copy of the deposition of respondent in
R.C.S.No.57/2004 along with pursis Exhibit 31. In
fact certified copy of deposition is marked
Exhibits 38 and 39. Learned Lower Court did not
take pains to go through the said deposition
produced by the petitioner. The respondent who was
plaintiff in R.C.S.No.57/2004 in his
cross-examination admitted that he had married with
defendant after due verification of divorce papers.
The petitioner has also produced copy of the
divorce deed along with list Exhibit 34. In view
of admission by respondent in his cross-examination
that he had married with petitioner after verifying
the divorce papers. Thus, respondent had knowledge
with respect to the deed of divorce and he has not
denied its execution. Therefore, usual proof for
proving the divorce deed is not required. "
Thus the learned District Judge has relied upon the certified copy of document produced with list Exh.34 in the trial Court. It is a certified copy of the registered document. It is styled as, "divorce-deed" and it states that both respondent Preeta and her first husband Rajendrakumar Gilda had decided to take divorce as per their custom and had effected divorce. This document produced with list Exh.34 is not duly proved. No question regarding the same was asked to any of the witnesses. Merely stating in the divorce-deed that there was custom is not sufficient. It will have to be proved as held by the Supreme Court in the case of Yamanaji (supra). The (-11-)
learned District Judge has curiously relied upon the certified copy of deposition of Virendrakumar recorded by the Judge, Family Court, Bijapur. The cross-examination is recorded in Kannad though examination-in-chief is in English. Translation of the cross-examination is made available by Shri Sonpethkar, advocate for the respondent. There is statement in the second paragraph of cross-examination, "It is true to suggest that I have married defendant after due verification of her divorce papers." In my considered opinion, this admission does not prove custom of divorce. It may be remembered that as stated earlier, in the plaint, itself it is mentioned in para 4 that since even after marriage of appellant and respondent, respondent was having contact with Rajendrakumar Gilda on telephone, he was forced to verify if there was really any divorce between them and thereafter he made thorough inquiry through his relatives and learnt that there was no divorce. In these circumstances, an isolated statement in the cross-examination in the deposition of appellant Virendrakumar at Bijapur cannot be used to hold that there was customary divorce. The appellant was not confronted with said admission to elicit his explanation.
15. Moreover, in the case of Yamanaji (supra) the counsel of both sides had conceded before court orally (-12-)
that there was custom of divorce and divorce had accordingly taken place, still the Supreme Court remanded the matter, allowed the parties to amend the pleadings, lead evidence and prove the customary divorce. In the present case absolutely there is no evidence to show that there was custom of having divorce by mutual consent in the community to which appellant and respondent belong. There is also no proof of divorce. Mere production of divorce deed is not enough. It is not duly proved by any witness. So in these circumstances the Principal District Judge has really committed an error in allowing the appeal and reversing the findings recorded by the Trial Court and setting aside the decree passed in R.C.S.No.57 of 2004 and allowing H.M.P.No. 79 of 2001 for restitution of conjugal rights.
16. Once it is held that divorce between respondent Preeta with Rajendrakumar Gilda as per custom is not proved, the marriage of the appellant and the respondent would be void under Section 5(i) of the Hindu Marriage Act. So petition for restitution of conjugal rights has to be rejected.
17. The parties are fighting litigation from 2001 as can be seen from the number of H.M.Petition bearing 79 of 2001 filed by the wife. It is true that in the District (-13-)
Court, respondent Preeta ought to have filed two appeals against decisions in two proceedings, namely, H.M.P.No.79 of 2001 and R.C.S.No.57 of 2004. Similarly, the present appellant ought to have filed two separate appeals; one against the order passed by the Principal District Judge in respect of decree passed in R.C.S.No.57 of 2004 for declaration that the marriage is null and void and other in respect of rejection of H.M.P.No.79 of 2001 for restitution of conjugal rights.
18. In these circumstances, in my opinion, non-filing of two appeals is an irregularity which ought to have been pointed out when the Second Appeal was registered. But no prejudice is caused to either side by their own errors. So this court entertains this common appeal and decides it. But this should not be treated as a precedent in future. Be that as it may. In the facts and circumstances of the case, the Second Appeal will have to be allowed.
19. Accordingly, the Second Appeal is allowed. The common judgment and decree passed by the District Court in Regular Civil Appeal No. 120 of 2005 is hereby set aside. The decree passed by the Trial Court in R.C.S.No.57 of 2004 is restored and H.M.P.No. 79 of 2001 is hereby dismissed. However, in the circumstances of case, the (-14-)
parties to bear their own costs.
(P.R.BORKAR, J.)
dbm/sa286.08
