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2010 DIGILAW 1288 (HP)

Kewal Kumar v. Pawna Devi

2010-12-30

DEEPAK GUPTA

body2010
JUDGMENT : Deepak Gupta, J. 1. By means of this petition, the petitioner has challenged the order dated 26.08.2003 passed by the learned Senior Sub Judge, Kangra at Dharamshala whereby he has granted interim maintenance @ Rs.500/- per month to the petitioner (here-in-after referred to as the respondent) w.e.f. April 1999 and has also directed the petitioner to pay litigation expenses of Rs.1,000/- to his wife, the respondent. 2. The main ground of challenge is that the marriage between the parties stood dissolved by mutual consent according to customary law and therefore, the Senior Sub Judge did not have any jurisdiction to award compensation. 3. The undisputed facts are that petitioner-husband married the respondent on 4th December, 1998. According to the husband, the wife was pregnant at the time of marriage and therefore, the parties agreed to get the marriage dissolved by customary divorce and a Fharkhati Namain this behalf was executed on 25.2.1999. The wife filed a petition under Section 125 of the Criminal Procedure Code seeking maintenance, which was dismissed by the Judicial Magistrate 1st Class, Dharamshala, vide order dated 18.12.2000 holding that the marriage stood dissolved by mutual consent and the learned Magistrate found that the respondent was living in adultery. The learned Sessions Judge also relied upon the divorce entered into mutually between the parties. During the course of the proceedings the husband has also filed an application No. 585 of 2008 and placed on record judgement of the Civil Judge (Jr. Division) 2, Dharamshala dated 15.3.2005 whereby the suit of the wife, seeking a declaration that there is a subsisting marriage between the parties, has been dismissed. This suit was dismissed on the ground that the marriage between the parties has been dissolved by a customary divorce in terms of the Fharkhati Nama. 4. I have heard Shri Janesh Gupta, learned counsel for the husband and Pt. Om Prakash, learned counsel for the respondent-wife. 5. Shri Janesh Gupta, learned counsel for the husband urges that in view of the fact that the marriage between the parties has been dissolved by a mutual consent and in view of the findings recorded in criminal proceedings that the wife was pregnant at the time of the marriage no maintenance should be awarded to the wife. 5. Shri Janesh Gupta, learned counsel for the husband urges that in view of the fact that the marriage between the parties has been dissolved by a mutual consent and in view of the findings recorded in criminal proceedings that the wife was pregnant at the time of the marriage no maintenance should be awarded to the wife. It is further urged that since the suit of the wife has been dismissed and no appeal against the same has been filed, the marriage having dissolved the main petition filed by the wife for restoration of conjugal rights itself is not maintainable. 6. On the other hand Shri Om Prakash, learned counsel for the respondent contends that in view of Section 4 of the Hindu Marriage Act, 1955 the provisions of the act shall override any custom and therefore, there could be no customary divorce and as such, the orders of the Courts holding that the marriage between the parties had been dissolved by way of customary divorce are without jurisdiction. 7. Section 4 of the Act reads as follows:- “Overriding effect of Act.-Save as otherwise expressly provided in this Act,- (a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.” 8. A bare reading of this Section shows that the provisions of the Act will override in custom or usage in force prior to the promulgation of the Act. However, there is a savings section in the act itself. Section 29 of the Act contains the savings clause and sub-section 2 of Section 29 reads as follows:- “(2). Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.” 9. The words of Section 4 clearly show that the provisions of this Section are subject to express provisions contained elsewhere in the Act. The words of Section 4 clearly show that the provisions of this Section are subject to express provisions contained elsewhere in the Act. Section 29(2) expressly saves the rights recognized by custom or conferred by any special enactment to obtain dissolution of Hindu marriage. It is, therefore, obvious that divorce by custom is saved. It is well known that under ancient Hindu law there was no right of divorce but dissolution of marriage was recognized under various customary laws. If such custom is established then the same will prevail and is saved under the provisions of Section 29(2). Reference may be made to the judgement of the Apex Court in Yamanaji H. Jadhav vs. Nirmala (2002) 2 SCC 637,wherein the Apex Court held that the custom must be properly pleaded and proved. 10. As far as the present case is concerned, the wife herself had filed a civil suit in the Court of the Civil Judge (Jr. Division)-2, Dharamshala, copy of which judgement has been filed in these proceedings. In the said case, she had specifically raised a plea that her marriage is still subsisting and not being dissolved under any custom. Issues 5 and 5(A) in the said suit reads as follows:- “5. Whether the marriage of plaintiff and defendant No.1 has been dissolved under the custom in accordance with ‘Farkhati Nama’ dated 25.2.1999? OPD. 5(A) Whether the parties are governed by custom of Farkhati Nama, if so, what is that custom? OPD.” These issues were decided in favour of the husband and against the wife and the Court came to the conclusion that a custom does exist and the learned trial Court also held that such custom is valid and is saved by Section 29(2) of the Act. There is no material on the record to show that this judgement has been challenged by the wife though it was delivered as far back on 15.3.2005. By this judgement, it was held that there was no marriage subsisting between the parties. If there is no marriage subsisting between the parties the petition under Section 9 for restoration of conjugal rights itself is not maintainable and as such the order of grant of maintenance pendente lite could not also have been passed. 11. In view of the above discussion, the petition filed by the husband is allowed. If there is no marriage subsisting between the parties the petition under Section 9 for restoration of conjugal rights itself is not maintainable and as such the order of grant of maintenance pendente lite could not also have been passed. 11. In view of the above discussion, the petition filed by the husband is allowed. The order of the learned Court below granting pendente lite maintenance to the respondent-wife is set-aside. No order as to costs.