JUDGMENT 1. - Smt. Gita and her father Rawa have filed this appeal against the judgment and decree dated September 27, 1982 passed by the District Judge, Bhilwara, whereby on the petition submitted by the respondent under Section 9 of the Hindu Marriage Act, a decree for restitution of conjugal rights was passed. 2. The respondent Bherulal submitted petition for restitution of conjugal rights with the allegations that he was married with Smt. Gita on November 23, 1970. in Village Kanya (District Ajmer) when both of them were minors. For the first time after the marriage Smt. Gita came to reside with the petitioner at his village Samgar on October 3, 1980 there the marriage was consume rated and both of them started living as husband and wife. On December 12 1980, the petitioner along with his wife, had gone to Bhilwara to his uncle on account of famine. On December 23, 1980, Gita's father Rawa took away both of them through the S. H O. Police Station Beawar. Thereafter Gita was taken away by her father and she did not return to join the petitioner and assume the marital relationship. The petitioner stated that the petitioner had been deprived of the company of his wife without any lawful and reasonable excuse. 3. A reply of the petition was filed, in which the allegation of marriage was denied and in the alternative it was also pleaded that in case it is found that the parties were married, then the said marriage stood prevailing in the community, by payment of Jhagra money amounting to Rs. 5,351 and a writing to that effect was executed. It was also averred that the non-petitioner Gita entered into a Nata marriage with some Kurpa son of Gokalji Gujar resident of Mataji ka Khera. 4. On the pleadings of the parties as many as five issues were framed. Issue No. 3 related to the plea based on customary divorce. One facts this issue was decided against the non-petitioner and in the alternative this issue was also considered in the manner as to whether such a plea can at all be inquired into in a petition under the Hindu Marriage Act. Issue No. 3 related to the plea based on customary divorce. One facts this issue was decided against the non-petitioner and in the alternative this issue was also considered in the manner as to whether such a plea can at all be inquired into in a petition under the Hindu Marriage Act. The learned District Judge found that such a plea cannot he inquired into in a petition under Section 9 of the Hindu Marriage Act and reliance was placed by him on a decision of this Court in Damodar v. Urmila (A.I.R. 1980 Rajasthan 57) . The learned District Judge found that issue No. I in favour of the petitioner and held that both the parties were married as alleged by the petitioner. It was also found while deciding issue No. 2, that the non petitioner Smt. Gita left the company of the petitioner without any reasonable excuse. An objection was also taken that the Court has no jurisdiction to hear the petition. This issue was also answered against the non petitioner No. 1. In view of the findings on issue No. 1 to 4, the learned District Judge granted a decree for restitution of conjugal rights in favour of the petitioner. Dissatisfied with the decree, Smt. Gita non-petitioner No. I and his father Rawa non-petitioner No. 2 have preferred this appeal. 5. I have heard Shri M. M. Singhvi, learned counsel for the appellants and Shri N. P. Gupta learned counsel for the petitioner-respondents. 6. The main question, which has been contested before me, relates to the correctness of finding on issue No. 3. On behalf of the appellant Shri M. M. Singhvi, learned counsel for the appellants submitted that the learned District Judge has not correctly appreciated the evidence of the parties relating to customary divorce and the learned District Judge was also wrong in observing that the matrimonial court is not competent to inquire into the question of dissolution of marriage of the parties in accordance with custom prevailing in the community and reliance was wrongly placed by the learned District Judge on the decision of this Court in Damodar v. Urmila (supra). 7. Shri N. P. Gupta, learned counsel for the respondent, on the other hand, supported the findings of the learned District Judge on issue No. 3. 7. Shri N. P. Gupta, learned counsel for the respondent, on the other hand, supported the findings of the learned District Judge on issue No. 3. He urged that the petitioner has denied the fact of customary divorce and has deposed that no Jhagra money had ever been received by him. The execution on the writing (Kagli) Ex. D/1 has been denied by Bherulal and he has stated that he did not sign Ex. D. 1. He has even examined one of the witnesses to the document Ex. D. 1 namely Bhoja (P. W. 4)- He has deposed that no payment of Jhagra money was made, nor any Jhagra ever arose. He denied to have signed C to D on Ex. D. 1. He also pointed out that the evidence led by the appellant on issue No. 3 has been rightly disbelieved by the learned District Judge, after thorough consideration and appreciation of the evidence. The appellants have not examined any expert so the finding as to the execution of the Kagli (Ex. D. 1) does not suffer from any infirmity and as such it may not be interfered with. As regards the legal aspect, as well, he submitted that the view taken by the learned District Judge placing reliance on the case Damodar v. Urmila (supra) is correct. 8. It has to he seen as to whether the learned District Judge has properly appreciated the evidence on issue No. 3 ? Kagli (Ex. D. 1) was scribed by Jawaharlal (N. A. W. 2) and it further bears the signatures of Ghisa (N.A. W. 3) and Bajari (N.A.W 4). One of the witnesses to the document (Ex. D. 1) namely Bhoja, has been examined by the petitioner. Thus, the entire evidence, which has come on record on issue No. 3 has to be weighed and on such evaluation of the evidence on record, it has to be found as to whether the appellant has been able to prove that the marriage stood dissolved between the parties in accordance with the custom of the community and whether that dissolution stands established by the document (Ex. D. 1). D. 1). Ghisa (N. A. W. 3), resident of Khuntia, was appointed as a Panch on behalf of the petitioner Bherulal and he has appeared as a witness on behalf of the appellant Ghisa has deposed that Jhagra had broken between Bherulal and Gita and a sum of Rs. 5,651 was settled as Jhagra money. He has stated that Ex. D. 1 was scribed by Jawahar Lal in his presence and he put his thumb impression. In cross-examination, he stated that money was not paid in his presence, but the money was paid by Jawaharlal as he inquired from him about it and he also inquired about the payment of money from Bherulal. Bherulal admitted the receipt of Jhagra money. Besides the statement of Ghisa, the appellant examined the scribe of Jawahar Lal and one witness Hazari. Jawaharlal has deposed about execution of Ex. D. I on Jetlt Vadi I St. 2031 corresponding to May 1, 1980, and the payment of a sum of Rs. 5,351 was made by him to Bheru Lai on Asad Vadi 5 St. 2037. He has stated that at both the places Bherulal signed A to B in his presence. Hazari has also proved the execution of Ex. D. I and stated that he signed at C to D at two places. Bherulal admitted the receipt of money. It is true that Bherulal has denied the execution Ex. D. 1 and Bhoja has also supported him, but on evolution and weighting the evidence of the parties, in my opinion it is proved that Kagli (Ex. D. l) was executed by Bherulal and after receipt of money he further signed the receipt part of Ex. D. 1 on Asad Vadi 5, St. 2037. It was not the duty of the appellant to have examined any handwriting expert. If the petitioner wanted to rebut the evidence of the non-petitioner appellant, it was his duty to examine the handwriting expert in rebuttal. Apart from that Bherulal even denied to have signed the petition. When in cross examination be was asked about his signature on the petitioner. If the signatures on all the pages of the petition and the signatures on Vakalatnama are compared with the signatures A to B at two places on Ex. D. 1, it would appear that these signatures have resemblance and appeared to be of one and the same person. If the signatures on all the pages of the petition and the signatures on Vakalatnama are compared with the signatures A to B at two places on Ex. D. 1, it would appear that these signatures have resemblance and appeared to be of one and the same person. The preponderance and probabilities, in my opinion, are in favour of the non-petitioner appellant and so I hold that in respect of the marriage. Jhagra took place, as Gita went in Nata with the Kumpa and a customary divorce took place between the parties and under the customary divorce the Jhagra money was paid to the petitioner. 9. The question which now remains to be considered, is as to whether an inquiry can be made by the matrimonial court relating to customary divorce ? In my opinion, such an inquiry can be made and a plea based on the customary divorce can be taken by the non-petitioner in defence, which may be the complete answer in negativing the relief claimed by the petitioner. Damodar v. Urmila's case in my opinion has no application to the facts of the present case. In that case a marriage was dissolved by the community Panchayat and it was not the case of customary divorce between the parties. It is in the context of the facts of that case that the learned Judge observed that the matrimonial court has no jurisdiction to go into the factum or validity of the alleged divorce obtained by the husband from the community Panchayat, in accordance with so called custom prevalent in the community and it is in the context of the facts of that case it was observed that the validity of the divorce granted by the Panchayat commounity can only be agitated under Section 9 of the Code of Civil Procedure Here in the present case the divorce has taken place in accordance with the custom in the parties. It is only with the consent of the parties that customary divorce can take place and the consent is by resolution of the controversy of Jhagra money and thereafter making the payment of the same, so with the intervention of the panchas, Jhagra money was settled and subsequently the payment of that Jhagra money was made. In this connection I may refer to the statement of Bherulal himself. In this connection I may refer to the statement of Bherulal himself. He has categorically admitted in cross-examination that after payment of Jhagra money, the relationship of husband and wife comes to an end and both the parties are free to contract second marriage. Thus, what was pleaded in this case was the customary divorce and the plea of customary divorce can legitimately be inquired into by the matrimonial court, hearing the petitioner under the provisions of the Hindu Marriage Act. In the light of the above discussion, in my opinion, the finding recorded by the learned District Judge on issue No. 3 is not correct and deserves to be reversed and decide issue No. 3 in favour of the non-petitioner appellant No. 1 Smt. Gita and hold that the marriage between the spouses was dissolved in accordance with the custom prevalent in the community and Mst. Gita contracted marriage with Kumpa. As the marriage has been found to have been dissolved, the petition for restitution of conjugal rights is unfounded and is not maintainable, so it deserves to be dismissed on that basis. 10. Accordingly the appeal is allowed the judgment and decree of the learned District Judge, Bhilwara dated September 27, 1982 are set aside and the petition for restitution of conjugal rights is dismissed with no order as to costs.Petition dismissed. *******