Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 693 (BOM)

PRIYA v. HITESH

2019-03-08

S.M.MODAK, SUNIL B.SHUKRE

body2019
JUDGMENT : Sunil B. Shukre, J. Heard. 2. Admit. 3. Heard finally by consent by dispensing with the paper book. 4. This appeal questions the legality and correctness of the judgment and decree dated 29th June, 2018 passed in Hindu Marriage Petition being Hindu Marriage Petition No.A-872/2015 thereby declaring that the marriage of the appellant with the respondent was null and void in terms of Section 5 (i) read with Section 11 of the Hindu Marriage Act, 1955 (hereinafter called as, "the Act of 1955"). Briefly stated, the facts of the case are as under : (A) The marriage of the appellant with the respondent was solemnized on 24.12.2013 at Nagpur. It was in accordance with the religious rights and customs applicable to the Sindhi community to which both the parties belong. After the marriage, the appellant started to co-habit with the respondent in matrimonial house at Nagpur. But, soon after some discord arose between the two and it also affected the other members of the family of the respondent. Some talks were held between the parents and maternal relatives of the appellant on the one hand and respondent and in-laws of the appellant on the other, but there was no solution found to put an end to the discord. (B) As the intensity of the strain of relationship between the appellant and the respondent increased, the respondent started making some inquiry about the antecedents of the appellant. After making inquiry the respondent learnt in or about third week of 2015 that the appellant was already married with one Sushil Kumar Khubchandani, resident of Maa Bhawani Kirana Stores, Near Badi Masjid, Nainpur (M.P.) and that the appellant had conceived pregnancy from her previous husband which was however, prematurely terminated. The respondent was disturbed as he was not informed about the previous marriage and appellant's previous spouse. The respondent also found that at the time of marriage, there was no legal divorce obtained by the appellant from her first husband and all these facts were suppressed by the appellant. The respondent felt deceived by the appellant and, therefore, he filed a petition under Section 11 of the Act of 1955 seeking declaration that the marriage having been performed in violation of the first condition of Section 5 of the Act, 1955 was null and void. 5. The petition was resisted strongly by the appellant. She filed her detailed written statement. 5. The petition was resisted strongly by the appellant. She filed her detailed written statement. She denied specifically that the petitioner learnt about her first marriage with Sushil Kumar Khubchandani. She denied that she was married to Sushil Kumar Khubchandani and had got pregnant and also aborted the pregnancy. She denied that there was any suppression of material facts from the respondent and his family members before their marriage was fixed. She averred that as there was no previous marriage whatsoever, there was no question of hiding anything from the respondent. Then she also pleaded about the harassment given to her by the respondent and what the respondent used to say regarding his own incapacity to complete the marriage. 6. On merits of the case, the learned Judge of the Family Court found that there was substance in the petition of the respondent and recording specific finding to the issues framed in the matter concluded that the marriage of the parties was null and void having been performed in violation of Section 5(i) of the Act of 1955 and thus decreed the petition by his judgment and order dated 29.6.2018. Not being satisfied with the same, the parties are before this Court in the present appeal. 7. We have gone through the record of the case including the depositions of the witnesses of both sides, documents adduced in evidence and the impugned judgment and order. We have heard learned counsel for the appellant and learned counsel for the respondent. The only point that arises for our determination is : (i) Whether the respondent has proved that his marriage with the appellant was solemnized in violation of Section 5(i) of the Hindu Marriage Act, 1955 ? 8. Before we turn to the evidence adduced by the parties, it would be appropriate for us to first consider the pleadings of the parties. The material pleading from respondent's view point is about the first spouse of the appellant living at the time of her marriage with the respondent on 24.12.2013. The respondent has specifically pleaded that before his marriage with the appellant, the appellant had been married to Sushil Kumar Khubchandani, that she had got pregnant from him and that she had aborted the pregnancy and that she had not taken any legal divorce from him before performing marriage with the petitioner. These pleadings are denied by the appellant. The respondent has specifically pleaded that before his marriage with the appellant, the appellant had been married to Sushil Kumar Khubchandani, that she had got pregnant from him and that she had aborted the pregnancy and that she had not taken any legal divorce from him before performing marriage with the petitioner. These pleadings are denied by the appellant. The appellant denied that she had performed any marriage with Sushil Kumar Khubchandani, that she carried pregnancy from him, that she aborted the fetus while in the womb and that she had not obtained any divorce from him. She also denied that these facts were suppressed by her from the respondent. She gave an explanation that as nothing of the sort as alleged specifically by the respondent took place, there was no question of hiding any facts by her from the respondent. 9. A careful reading of the written statement of the respondent would show that apart from such specific denial of the pleading raised by the respondent, the appellant also stated that at the time of marriage she was a bachelor. In the written statement, nowhere it is stated by the appellant that although she was married to Sushil Kumar Khubchandani for the first time before her marriage with the respondent took place, she had obtained divorce from him through a mutual divorce deed signed by both the parties witnessed by the respectable panchas from Sindhi community and that it was in accordance with the customs prevailing in Sindhi community. 10. On perusal of the evidence of the respondent, we find that the evidence of the respondent and his witnesses is consistent with the pleading raised by the respondent. They establish as a reasonable probability of high degree that at the time of marriage of the appellant with the respondent, the respondent having not obtained any legal divorce from her previous husband Sushil Kumar Khubchandani who was admittedly alive on the date of the marriage was not qualified and eligible to perform marriage with the respondent. There is not a slightest circumstance which would take the evidence of the side of the respondent to improbability of the assertions made by them. There is not a slightest circumstance which would take the evidence of the side of the respondent to improbability of the assertions made by them. On the contrary, a question has been asked to the respondent during the course of his cross examination as to whether or not he knew the divorce obtained before the Panchas of Sindhi community was valid and the answer given by the respondent was that he did not know anything about it. This question only indicates that there is an indirect admission regarding performance of marriage by the appellant with Sushil Kumar Khubchandani with the admission being that any divorce obtained in the presence of Panchas of Sindhi community is valid in law. Validity of such a customary divorce does not depend upon the positive or negative opinion given by a party and it has to be determined to be so by a Court of law. Therefore, saying by the respondent that he did not know anything about the validity or otherwise of the divorce obtained before the Panchas cannot be taken as establishing the validity of a customary divorce by implication. 11. On the contrary, the evidence of the appellant and her witnesses is seen to be not consistent with the pleading of the appellant and it is also found to be going beyond the pleading. In her pleadings, the appellant stated that she was a bachelor and that she had never performed any previous marriage with Sushil Kumar Khubchandani and that being the fact there was no question of her hiding any material from the respondent. But, in her evidence before the Court she changed her stand. In her examination-in-chief she admitted that she had performed a marriage prior to her marriage with the respondent, but that marriage was dissolved on the basis of a divorce deed executed as per the customs prevailing in Sindhi community and that this fact was informed to the respondent and his other family members. Thereafter, the appellant asserted that her present marriage with the respondent was legal and valid. In cross-examination, she admitted that earlier she got married with Sushil Kumar Khubchandani on 16.2.2009, that, she co-habited with him for about two years and that she had no issue from out of the first wedlock. Thereafter, the appellant asserted that her present marriage with the respondent was legal and valid. In cross-examination, she admitted that earlier she got married with Sushil Kumar Khubchandani on 16.2.2009, that, she co-habited with him for about two years and that she had no issue from out of the first wedlock. When a specific question was put to her regarding her pleading in the written statement that at the time of her marriage with the respondent, she was a bachelor and she answered that the pleading so taken was correct. Then, she said that the pleading was wrong and further stated that she could not assign any reason as to why did she make a wrong pleading in her written statement. In the cross-examination, she also admitted that the fact that her sister Naina Amit Ramani obtained divorce from her husband through the Court thereby indicating that the appellant knew the importance of getting marriage dissolved through the Court. Similar, more or less, are the facts stated by other witnesses of the appellant i.e. RW 2 Rajani, RW 3 Sangeeta and RW 4 Anil, insofar as they relate to first marriage of the appellant. 12. The evidence of the respondent thus shows that the fact that the appellant had performed her first marriage with Sushil Kumar Khubchandani before solemnization of her present marriage with the respondent has been established through the clear admissions given by the appellant and her witnesses. This fact is also established because of the high degree of probability of the evidence adduced by the respondent. But, there is an explanation given by the appellant as regards status of her first marriage. According to the respondent and her witnesses, the first marriage had stood dissolved already when the appellant performed her marriage with the respondent and such dissolution occurred through a divorce deed executed between the appellant and Sushil Kumar Khubchandani in the presence of Panchas before a notary public. According to them, this divorce deed was registered by notary public and was executed as per the customs applicable to Sindhi community. But, the facts constituting the explanation given by the appellant and her witnesses regarding dissolution of the first marriage being the material facts were required to be pleaded specifically. These material facts, however, were not pleaded. According to them, this divorce deed was registered by notary public and was executed as per the customs applicable to Sindhi community. But, the facts constituting the explanation given by the appellant and her witnesses regarding dissolution of the first marriage being the material facts were required to be pleaded specifically. These material facts, however, were not pleaded. Therefore, as per the settled law, the evidence tendered without material pleadings having been raised by the appellant ought not to have been taken on record and if it was taken, it required to be ignored. A useful reference in this regard may be made to the cases of Harihar Prasad Singh and others vs. Balmiki Prasad Singh and others, (1975) 1 SCC 212 , Ram Sarup Gupta (dead) by LRs. vs. Bishun Narain Inter College and others, (1987) 2 SCC 555 , Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 , Ram Sukh vs. Dinesh Aggarwal, (2009) 10 SCC 541 and Commissioner of Central Excise, Bangalore-1 vs. Bal Pharma Limited, Bangalore and others, (2011) 2 SCC 620 . So, such evidence of the appellant which went beyond the pleadings deserves to be ignored and was rightly ignored by the trial Court. 13. Even if the evidence adduced by the appellant beyond her pleading is considered, just for the sake of argument, still, this evidence being deficit in material facts necessary for proving the case of customary defence would not help the appellant in any manner. In our country, severance of marital status is recognized only when it is done in the manner and before the authority prescribed by law. This law requires that a Hindu marriage can be put to an end only through a decree obtained from a Civil court in accordance with the provisions of the Hindu Marriage Act, 1955. Prior to enactment of a Hindu Marriage Act, 1955 the Hindu Law as it was then prevailing gave no recognition to the practice of obtaining divorce by parties to the marriage as the marriage was considered to be a sacrament, an inseverable holy bond between two souls residing in two individual bodies, unless there was a custom prevailing in the community to which parties to the marriage belong permitting such severance. Now, with the enactment of Hindu Marriage Act, otherwise disperse rules of Hindu Law governing the institution of the marriage have been codified and now the divorce could be obtained from a competent Court of Civil Court on any of the grounds stated in Section 13 of the Act. Such divorce is also permissible by following a custom prevailing in the community of the parties to the marriage by way of an exception. This would suggest that a custom which stands as an exception to the general law of divorce assumes form of a material fact, as it constitutes cause of action, and, therefore, it is required to be pleaded specifically and also established by the party propounding it. If any authority for this proposition of law is required, it could be found in the judgment of the Hon'ble Apex Court in the case of Yamanaji H. Jadhav vs. Nirmala, (2002) 2 SCC 637 . The observations of the Hon'ble Apex Court made in paragraph 7 are relevant and, therefore, they are reproduced thus : "In the view that we are inclined to take in this appeal, we do not think it is necessary for us to go into the contentions advanced by the learned counsel for the parties in this case, because we find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong to. As per the 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 where 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. 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 the 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." 14. Same is the view taken by the Hon'ble Supreme Court in many more cases two of which are reported as Rameshchandra Rampratapji Daga vs. Rameshwari Rameshchandra Daga, (2005) 2 SCC 33 and Subramani and others vs. M. Chandralekha, (2005) 9 SCC 407 . 15. The issue does not end with mere inclusion of a material fact regarding customary divorce in a pleading of the party. Even if such a pleading is there, the custom or usage permitting dissolution of the marriage by means otherwise than through a decree of Civil Court obtained under Section 13 of the Hindu Marriage Act must be proved to have acquired the force of law and that would mean that following of the custom or usage continuously and unanimously for a reasonably long period of time, the conditions subject to which the custom or usage is to be followed and the instances of following such a custom or usages must necessarily be proved by adducing relevant evidence. 16. Section 4 of the Hindu Marriage Act, 1955, lays down that save as otherwise expressly provided in the Hindu Marriage Act, 1955 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 the Hindu Marriage Act shall cease to have effect with respective to any matter about which a provision is made in the Act of 1955. Section 29(2) of the Act of 1955 is a saving provision which protects rights acquired through custom or usage having force of law. Section 29(2) of the Act of 1955 is a saving provision which protects rights acquired through custom or usage having force of law. Therefore, if there is a pleading that first marriage was dissolved by following a custom or usage applicable to or prevailing in the community of the party pleading, the custom or usage must be proved to have acquired force of law by its consistent following by the members of the community in general since time memorial or at least for reasonably long period showing its wide spread acceptance by the members of that community and that it is not unreasonable or against public policy. A learned Single Judge of this Court in the case of Kashibai Namdeo Jadhav and others vs. Yamunabai Namdeo Jadhav and others, (2016) 2 AIRBomR 755 has taken a view that though Section 29(2) of the Act of 1955 saves customary right, a person who relies upon such custom must prove that custom or usage by showing that it has been continuously and uniformly observed for a long time and thus has obtained force of law amongst members of the community or tribe or group or family and that such custom is not unreasonable or opposed to public policy. 17. All these material aspects of the customary divorce put forward as a new plea directly in the evidence have not been even cursorarily referred to in the evidence of the appellant. 18. It is the contention of the learned counsel for the appellant that fifth witness of the appellant, RW 5, Indrakumar (notary public) has proved an entry taken in the notary register regarding execution of the divorce deed. This entry is at Exh.-56. This entry by itself would not prove the contents of the divorce deed and also the fact that the divorce deed was executed as per the custom or usage prevailing in the Sindhi community and having force of law, which facts are required to be proved independently through the evidence of those having personal knowledge of those facts and that too subject to condition that there is a pleading taken regarding customary divorce. None of these essentials is present here. Therefore, the entry vide Exh.-56 takes case of the appellant nowhere near the goal that she wishes to achieve by setting up a defence as a new case. 19. None of these essentials is present here. Therefore, the entry vide Exh.-56 takes case of the appellant nowhere near the goal that she wishes to achieve by setting up a defence as a new case. 19. A careful perusal of record of trial Court further reveals that there is also additional evidence in the nature of an affidavit filed on record by the petitioner and that was done by him with the permission accorded to him by the Family Court. In this affidavit, it has been specifically stated by the respondent that at the time of his marriage with the appellant, her first husband was alive. This evidence has not been controverted in any manner by the appellant. 20. The discussion so far made would only show that on the one hand there is an admission by the appellant about the performance of the first marriage with Sushil Kumar Khubchandani and no dispute raised by the appellant about the first spouse being alive at the time of second marriage, on the other hand there is no pleading about the dissolution of the first marriage as per the custom applicable to Sindhi community and whatever evidence has been adduced in this regard is of highly deficit nature indicating utter failure of the appellant to prove and establish prevalence of customary divorce in Sindhi community in accordance with law and also the customary divorce having taken place. 21. Learned counsel for the appellant submits that even if there is a doubt about the divorce, the doubt would carry no significance if there is a custom prevailing in Sindhi community opening the way for customary divorce. She places her reliance upon the view taken by the learned Single Judge of the Gujarat High Court in the case of Bai Jivatbai Jethmal vs. Milkiram Deepchand and another, 1961 CriLJ 469. With due respect to the learned counsel for the appellant, we must say that this case would render no assistance to the case of the appellant for the reason that in the present case it has not been proved by the appellant that the custom regarding divorce is in existence in Sindhi community and that there is no pleading raised in this regard. 22. 22. In the result, we find that the conclusions reached by the learned Judge of the Family Court are based upon the pleadings of the parties and the evidence available on record and this evidence, highly probablises the case of the respondent that there was a violation made by the appellant of Section 5(i) of the Act of 1955 and, therefore, it was in the fitness of things to grant a declaration of the marriage of the parties as being null and void in terms of Section 11 of the Act of 1955. We find no illegality nor any perversity nor any error in the approach adopted by the learned Judge of the Family Court. There is no merit in the appeal. 23. The appeal stands dismissed. No costs.