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Madhya Pradesh High Court · body

2014 DIGILAW 485 (MP)

Ranjit Singh v. Sugan Bai

2014-04-29

A.K.SHARMA, RAJENDRA MENON

body2014
Judgment 1. This is an appeal filed under Section 28 of the Hindu Marriage Act calling in question tenability of a judgment and decree dated 28.10.2002 passed by the Additional District Judge, Ashta, District Sehore in Civil Suit Hindu Marriage No. 44-A/97 whereby an application filed by the appellant husband under Section 13 of the Hindu Marriage. Act has been dismissed. Parties herein belongs to a particular caste and it is said that they were married according to their caste sometime about 15 years back prior to institution of the present proceeding in the year 1997. 2. It was the case of the appellant husband before the Trial Court that after his marriage the respondent is not treating him properly, does not give to him the right of cohabitation available to a husband, she acts cruelly to him, even though three children have born out of their wedlock but they have died and as he has to go out in connection with his work, the respondent wife refused to stay with him and went to her parents house. It is said that when he went to call her to come back, she refused and therefore, as per religious system applicable in the community a Panchayat of the community Members were called on 4.3.1990 wherein the panchayat permitted the parties to live separately and all the belongings to each other were exchanged and respondent wife paid a sum of Rs. 3,300/- to the appellant. It is said that in fact this agreement by the Panchayat on 4.3.90 is dissolution of marriage as per customs prevailing between the party. On the ground of desertion, dissolution of marriage by the Panchayat and cruelty in not permitting the husband to cohabitate the suit was filed. However, the learned Court below having dismissed suit on the ground that same is not proved, this appeal has been filed. 3. Learned counsel for the appellant took us through the statement of various witnesses, documents executed through Panchayat and stated that now as the marriage has been dissolved and appellant has already married a second woman and from their wedlock two children have been born, it is stated that Trial Court should have decreed the suit and in dismissing the same, an error has been committed. 4. 4. Learned counsel for the respondent refuted the aforesaid and argued that finding has been recorded in accordance with law and same does not call for any interference. 5. We have heard learned counsel for the parties and perused the record. From the records it is seen that the main case of the appellant is that their marriage was sought to be dissolved based on the decision taken in the meeting by the Panchayat held on 4.3.90 and the proceeding of the said panchayat are filed as Exhibit P/1 and P/2. In support of his contention, appellant Ranjit Singh examined himself as P.W. 1. He examined one Seva Lal as P.W. 2 who was witness to the execution of the documents before the Panchayat i.e. Exhibit P/1 and P/2. Similarly, P.W. 3 Kanha Ji was also examined for the same purpose. P.W. 4 was Padam Singh Malviya who had given statement with regard to execution of the document before the Panchayat and the relationship of the parties. On behalf of the respondent wife, she examined herself as D.W. 1 and denied the allegation including execution of the document before the Panchayat. She examined her brother Moti as D.W. 2 and denied his presence in the proceedings of Panchayat on 4.3.1990. Based on the evidence that came on record the suit has been decided. 6. Ranjit Singh P.W. 1 has stated the facts as are narrated in the plaint and his main contention is that the document was executed by the Panchayat on 4.3.90, a sum of Rs. 3,300/- was not paid to him and it is his case that when this document was executed brother of the respondent one Shri Puran and his other relatives were present. P.W. 2 Sewa Lal and P.W. 3 Kanha Ji are witnesses to the execution of the document in the panchayat and they say that the document was written and executed in their presence and they have signed the same. Similarly P.W. 4 Padam Singh is the person who said to have conducted the proceeding of the Panchayat and testifies with regard to execution of the document and also says that when the document was executed, the persons as indicated in the document were present, that apart 20 to 22 other persons from the village were also present. Similarly P.W. 4 Padam Singh is the person who said to have conducted the proceeding of the Panchayat and testifies with regard to execution of the document and also says that when the document was executed, the persons as indicated in the document were present, that apart 20 to 22 other persons from the village were also present. Sugan Bai respondent wife who has examined herself as D.W. 1 denies the allegation but admits that the appellant husband has now married one Kalpana Bai and two children one a boy and another a girl. D.W. 2 is born out of this wedlock examined on her behalf is one Moti who claims to be her brother and denies having participated in the proceeding of Panchayat on 4.3.90 and denies its execution. Having considered the submissions made and the documents available on record, it is seen that the parties are living separately since 1990 and during this period the appellant husband is also married to another person and two children have been born out of his wedlock. One of the moot question warranting consideration is as to whether as per the rites and customs of the parties, a decision was taken in the panchayat as is indicated in the document Exhibit P/1 and P/2. P.W. 1 Ranjit Singh and his witnesses P.W. 2 and P.W. 3 testify with regard to execution of this document in the panchayat. Both P.W. 2 and P.W. 3 have stated that when the proceeding of the Panchayat were held on 4.3.90 respondent wife's uncle Bapu Bhura and her brother Puran were present and certain relatives of the appellant husband were also present before whom the decision was taken and the document Exhibit P/2 executed. P.W. 4 Padam Singh Malviya who had conducted the proceedings of the Panchayat also testifies to the same. He also says that the persons who were present there had affixed their thumb impression or signature on the document Exhibit P/2. If the documents available on record Exhibit P/1 and P/2 are taken note of, it would be seen that in this document signature and thumb impression of various persons are present which include the signature of Bapu Bhura the so called uncle of Sugan Bai respondent wife and her brother Puran. If the documents available on record Exhibit P/1 and P/2 are taken note of, it would be seen that in this document signature and thumb impression of various persons are present which include the signature of Bapu Bhura the so called uncle of Sugan Bai respondent wife and her brother Puran. At place marked as "C" to "C" is the signature of Bapu and portion marked as "G" to "G" is signature by Puran in Exhibit P/1. Similarly in Exhibit P/2 their signature marked at places 'A' to 'A' and 'B' to 'B' respectively. The respondent wife examined herself as D.W. 1 and denied the proceedings held in the Panchayat. She also produced her brother D.W. 2 Moti to testify that he was not present in the panchayat. However, neither Moti nor the respondent wife say anything with regard to presence of Puran and Bapu Bhure in the proceedings of the Panchayat nor do they deny existence of such a custom in the community for separation. On the contrary P.W. 2, P.W. 3 and P.W. 4 who were not members of the family testify to the execution of the document in the panchayat. When the appellant had come out with a specific case that in the proceedings of the Panchayat brother of the respondent Puran and her uncle were present as this proceeding was held as per the custom and usage prevailing in their community and when PW 2 and PW 3 say that they affixed their signature in the portion marked in the document. The respondent should have explained or produced either Bapu or Puran to deny their signature in the document. The evidence of witnesses does show that as per the custom prevailing in the caste to which the parties belong, certain proceedings of the panchayat took place and if documents Exhibit P/1 and P/2 are taken note of, it would be seen that this document speaks about breaking of the relationship, their separation, redistribution of their assets and payment of Rs. 3,300/- by the respondent wife to the appellant. The document also says that now the parties can remarry and it is an admitted position that after execution of this document the appellant husband has married one Kalpana Bai and two children have been born out of this wedlock. 3,300/- by the respondent wife to the appellant. The document also says that now the parties can remarry and it is an admitted position that after execution of this document the appellant husband has married one Kalpana Bai and two children have been born out of this wedlock. From the evidence in this regard as is available on record it is clear that parties are living separately since 1990 and in certain proceedings of the Panchayat held on 4.3.90, they have decided to separate themselves and thereafter, the appellant husband got married and since 4.3.90 i.e. atleast from the date when the documents were executed, both the parties are living separately. That being so, it is a case where as per the religious custom and tradition applicable between the parties, a decision has been taken to separate themselves and the decision having been put to execution and the execution of the decision vide Annexure P/1 and P/2 having been proved from the evidence available on record, it is a fit case where a decree for dissolution of marriage should be granted. Accordingly, the appeal is allowed. The marriage solemnized between the parties is permitted to be dissolved. The decree be passed accordingly. The appeal is allowed in part.