JUDGMENT : Goutam Bhaduri, J. 1. The instant appeal is filed by defendant Nirmala along with others claiming herself to be the wife of Raj Kumar along-with two children born out of the first marriage performed with late Raj Kumar. The judgment and decree was passed by the learned Family Court Manendragarh in Civil Suit No.36-A/2016 on 06th July 2017. The suit having been decreed in favour of plaintiffs, the present appeal is preferred. 2. Brief facts of the case are – 2 (a) that Plaintiff No.1 Mamta, (respondent no.1 herein) along with her 3 children namely Ku. Sweta, Ku. Shephali, son Sameer and mother-in-law Ganga Bai filed a suit for declaration and injunction before the family Court. It was pleaded that plaintiff no.1 Mamta Devi was married to Rajkumar and out of that marriage, 3 children were born. Plaintiff No.5 Ganga Bai is mother of late Rajkumar. It was stated that Rajkumar was working as Fitter in SECL in South Eastern Coal Fields. He died in harness on 16.07.2009. It was further pleaded that Smt. Nirmala was first wife of late Rajkumar and they blessed with two children namely Vicky @ Vijay and geeta who were arrayed as respondents 2 and 3 respectively. It was stated that Rajkumar was married to defendant no.1 Smt. Nirmala 25 years back before filing of the suit in the year 2014. The plaintiffs stated that Nirmala deserted Rajkumar and married to Dharamlal Satnami by bangle custom (Chudi Pratha) which is a conventional practice being followed in Satnami Community and stayed in his company for four years. Subsequently, she left Dharamlal and again performed Chudi marriage with one Kheekha Ram Sonwani and till the suit was filed, she was known as wife of Kheekha Ram. Further in respect of the custom, it was pleaded that both late Rajkumar and plaintiff no.1 belonged to Satnami caste and the practice of marriage by Chhudi custom is prevailing in their community since the time immemorial. It is further pleaded that according to such custom, if the married lady leaves her husband and makes another person as her husband by performing the marriage under Chudi custom and starts living with him, the relation of earlier marriage would automatically comes to an end. It is further pleaded that according to such custom, if the married lady leaves her husband and makes another person as her husband by performing the marriage under Chudi custom and starts living with him, the relation of earlier marriage would automatically comes to an end. It is further submitted that such custom is prevailing in the Satnami community, therefore, as per the caste custom the marital relation of husband and wife between Rajkumar and Nirmala came to be dissolved 25 years back. 2(b) The plaintiff further pleaded that after Rajkumar was deserted and divorced by custom by first wife, Nirmala, the marriage of Mamta and Rajkumar was solemnised in the year 1991 according to Hindu rituals and from that marriage, 3 children were born who were plaintiffs 2 to 4 thereby they were dependents on Rajkumar. It is further stated that during the life time of Rajkumar, the names of Mamta and her children got recorded by Rajkumar in all service records being dependents and necessary documents are maintained by the employer SECL wherein name of Mamta being wife was recorded as nominee. It is further stated that the children born out of first marriage namely defendant no.2 Vicky and defendant no.3 Geeta were deserted even by Rajkumar during their childhood and they were looked after by mother of Rajkumar namely Ganga Bai who was plaintiff No.5 and the applications were filed by Ganga Bai for their maintenance wherein the Court had granted the maintenance. 2(c) Plaintiff Mamta further contended that after death of Rajkumar on 16.07.2009, the first wife Nirmala having come to know the fact of death of her first husband, filed an application for grant of succession certificate and also claimed all the retiral dues. It is because of such reason and having felt that the rights of the plaintiffs are being eclipsed, a suit was filed by Mamta along with others praying for grant of a decree to the effect that plaintiff no.1 being wife, respondents 2, 3 & 4 being the children born from such wedlock and plaintiff no.5 being the mother are dependents of late Rajkumar. The further prayer was made that since defendant no.1 Nirmala had deserted and divorced Rajkumar according to the caste custom which is prevailing in the Satnami community, therefore, she (defendant no.1) be declared as not the wife of Rajkumar on the ground of dissolution of marriage, however, defendants no.2 Vicky @ Vijay and defendant no.2 Geeta 2 be declared as son and daughter of Rajkumar. That apart, further prayer was made to declare that the plaintiffs being dependents of Rajkumar are entitled to receive the amount of retiral dues and other benefits which are lying with employer SECL i.e., defendants 4, 5 & 6. 2(d) On the other hand, in written statement, defendant Nirmala has stated that she had never divorced or left Rajkumar. It was stated that the plaintiff Mamta belonged to Kesar caste and according to the Satnami caste customs, she could not have married Rajkumar who belonged to Satnami community. It was further stated that the pleading would show that at the time of marriage, the plaintiff was minor and accordingly the marriage cannot be a valid one. Further it was stated that plaintiff No.1 Mamta in connivance with SECL officers, got her name mutated in the service records and since the defendant Nirmala never divorced or performed any subsequent marriage, the second marriage with Mamta could not have been performed and such marriage even if performed would not give any right to the plaintiffs. It was further stated that the Court was not empowered to declare plaintiff no.5 to be the mother and no cause of action arose in favour of the plaintiffs and the suit filed by the plaintiffs is liable to be dismissed. 3. The trial Court framed the issues and examined witnesses of both the parties. On behalf of the plaintiffs, Ganga Bai, mother of employee late Rajkumar was examined as P.W.1, Pitambar Lal was examined as P.W.2 who was a neighbor of Rajkumar and Dhajram Banjare who is uncle of late Rajkumar was examined as P.W.3 and Mamta was examined as P.W.4. On defence side, defendant no.1 Nirmala was examined as D.W.1. One Ram Sahai, who is also cousin brother of Rajkumar was examined as D.W.2 and one Shyam Berman, who is cousin brother of Rajkumar was examined as D.W.3 and on behalf of SECL, witness Mahendra Singh Yadav was examined. 4. On defence side, defendant no.1 Nirmala was examined as D.W.1. One Ram Sahai, who is also cousin brother of Rajkumar was examined as D.W.2 and one Shyam Berman, who is cousin brother of Rajkumar was examined as D.W.3 and on behalf of SECL, witness Mahendra Singh Yadav was examined. 4. The learned court below after evaluating the facts and evidence came to conclusion and declared that according to the caste custom (Chod Chhutti) of Satnami community which was pleaded and proved, Nirmala had divorced Rajkumar on account of her elopement with another person. The Court further held that plaintiff no.1 Mamta is married wife and plaintiff No.5 is mother of late Rajkumar. The Court further declared that plaintiffs 2, 3 & 4 arechildren of Rajkumar whereas in respect of defendants 2 & 3 Vicky and Geeta, they were also held to be son and daughter of Rajkumar. Hence this petition. 5. Learned counsel for the appellants/defendants would submit that according to Hindu rites, the marriage of plaintiff No.1 Mamta with Rajkumar having a living spouse is a complete nullity especially when plaintiff No.1 belongs to another caste. He refers to Clause (i) of Section 5 of Hindu Marriage Act, 1955 (for short the Act of 1955) and contends that it creates a bar that a male Hindu cannot perform a marriage when one's spouse is living at the time of marriage. It is further contended that the divorce in accordance with the Act, 1955 was not obtained from any competent Court, therefore, the so called divorce according to the caste custom cannot be said to be validated. Hence, the declaration of valid marriage of plaintiff no.1 who is admittedly second wife of Rajkumar would be wrong on the face of it. 6. Per contra, learned counsel for the respondents/plaintiffs would submit that the pleadings of the parties would show that they are governed by Satnami Caste wherein the customary divorce is prevalent which is pleaded and proved, as a result, it would be saved by sub-section (2) of Section 29 of the Act 1955. Both the counsel for the parties went through the statements of the witnesses to impress upon the findings arrived at by the Court below. 7. We have heard learned counsel for the parties at length and went through the pleadings and evidence. Section 5 of the Act of 1955 stipulates the conditions for a Hindu Marriage. Both the counsel for the parties went through the statements of the witnesses to impress upon the findings arrived at by the Court below. 7. We have heard learned counsel for the parties at length and went through the pleadings and evidence. Section 5 of the Act of 1955 stipulates the conditions for a Hindu Marriage. Clause (i) of Section 5 is relevant here to quote which reads as under: “5. Conditions for a Hindu Marriage.--A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled namely : (i) neither party has a spouse living at the time of the marriage”. A plain reading of Clause (i) of Section 5 of the Act shows that it lays down the condition precedent for solemnization of Hindu Marriage. In sum and substance, it stipulates a necessary condition that for a lawful marriage between any two Hindus, neither party should have a spouse living at the time of marriage. Prima facie, Section 5 the Act of 1955 manifests that the second marriage cannot be performed by a Hindu when the spouse is living. 8. The suit was filed by the plaintiffs on the ground that a custom of 'Chudi' marriage is conventionally well established in Satnami community in State of Chhattisgarh which has been in existence since ancient times allows, therefore, the “Chudi custom allows the customary divorce. Incidentally, it also raised a question as to whether such custom if established would still survive notwithstanding the provisions of section 4 & Section 11 of the Act 1955, which gives an over riding effect to the Act of 1955 and in effect repeals all existing laws whether in shape of enactment, custom or usage which are inconsistent with the Act. These words make abundantly clear that the matters expressly saved from the operation of the Act continued to be governed by the previous law, statutory or otherwise. 9. Section 29 of the Act contains saving and repeals. Sub-section(2) of section 29 reads as under : “(2) Nothing contained in this Act shall be deemed to affect any right recognised 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”. 10. 9. Section 29 of the Act contains saving and repeals. Sub-section(2) of section 29 reads as under : “(2) Nothing contained in this Act shall be deemed to affect any right recognised 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”. 10. It is manifestly clear from plain reading of sub-section (2) of section 29, that a marriage can still be dissolved in accordance with the custom governing the parties or under any other law providing for the same. The opening words of sub-section (2) of section 29 i.e., “nothing contained in this Act shall be deemed to affect any right recognized by the custom” would lead to demonstrate that the provisions of the Act do not nullify the existence of any custom which confers a right on a party to obtain a dissolution of a Hindu marriage. Normally according to the The Hindu Marriage Act, the dissolution of marriage by custom is not recognized but the saving clause of sub-section (2) of section 29 recognizes the customary divorce unless it is against the public policy. 11. The result would be that a Hindu marriage may be dissolved either under section 13 of the Act or under any special enactment in accordance with custom applicable to the parties. Section 29(2) does not disturb the practice of customary divorce occupied before the Act came into force. In other words, the explanation carved out by sub-section (2) of section 29 operates as an effect that there has been and in fact a customary divorce has taken place. This drives us to lay down the evidence led by the parties. 12. For custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient. While the minors/defendants 2 & 3 were in their tender age, Nirmala defendant no.1 who was the first wife of Rajkumar chose another male to be her husband by Chudi system, which is a custom being widely followed in Satnami caste. It was further pleaded that since ancient times, the marriage by such Chudi custom is prevailing in the Satnami caste. It was further pleaded that since ancient times, the marriage by such Chudi custom is prevailing in the Satnami caste. According to such custom, when the married woman leaves her husband and accepts another male as husband by adopting Chudi system, the marital relations with the previous husband would automatically come to an end by dissolution of marriage. In addition to such pleading, the evidence led by the parties was also seen. 13. P.W.1, mother of late Rajkumar stated that they belonged to Satnami Community and in their community, the convention of “Chudi marriage” is in practice since ancient times and there was no restraint on such practice. She has further stated that if a married woman accepts the Chudi from a different male and accepts her husband, the rights and liabilities with respect to the first husband would automatically come to an end. She further stated that Nirmala the first wife who was married to Rajkumar left two children in her Company and accepted the Chuddi from her nephew Ram Sahay Sonwani thereby Nirmala performed second marriage, stayed there for two years and then also left Ram Sahai and again accepted Chudi from one Dharamlal Ratre with whom she gave birth to a daughter and thereafter she left Dharamlal Ratre and accepted Chudi from one Kheekh Ram Sonwani of village Kotiya and started living with him as wife. She has further deposed that she herself has seen Nirmala staying with her other three husbands as the witness used to visit the places of her brother, sister and aunt. She has stated in her cross examination that no divorce was ever taken place between Nirmala and Rajkumar and had volunteered that such practice of divorce is not prevalent in their Society. She further deposes that Mamta is the wife of Rajkumar and Rajkumar married her in a temple and thereafter their marriage was socially recognised. 14. Witness No.2 Pitamber (P.W.2) has stated that he was neighbour of Rajkumar and both he and RajKumar belonged to Satnami community. He has stated that the first wife of Rajkumar was Nirmala and they blessed with two children. Thereafter Nirmala performed second marriage. He further stated that when the first wife Nirmala started staying with second husband, the marital relations with the first husband came to an end and thereafter Rajkumar performed second marriage with Mamta. He has stated that the first wife of Rajkumar was Nirmala and they blessed with two children. Thereafter Nirmala performed second marriage. He further stated that when the first wife Nirmala started staying with second husband, the marital relations with the first husband came to an end and thereafter Rajkumar performed second marriage with Mamta. In his evidence, he has described the marriage rituals of their community and accordingly, the marriage of Raj Kumar with Mamta was done. In his cross examination, he has further stated that no divorce-deed in writing was given to Rajkumar and Nirmala. In this regard, on a query being made he answered that there is no provision existing in their community to give a certificate in writing about dissolution of marriage. 15. P.W.3 Dhajaram Banjare who is uncle of Rajkumar stated that initially Nirmala was married to Rajkumar and thereafter, she developed illicit relations with one Ram Say Sonwani who happens to be cousin of Rajkumar. Consequently, Nirmala left Rajkumar and started staying with Ram Sahay as his wife. He has further mentioned the name of one Dharamlal of Barbhata village to whom she married again by Churi custom and out of such relation a baby was born and it survived for only three years. Later on, again she accepted Chudi from another person and started living with him at village Kotiya. Narrating the caste custom this witness has further stated that in Satnami community, when a married lady leaves her husband and accepts Chudi from another male, then earlier marital relation automatically comes to an end and the marriage is dissolved. He has further narrated in brief that it will be recognized as divorce if the wife elopes and wears a bangle (Chudi) from another male. He has also further stated that thereafter, Mamta and Rajkumar performed marriage in a temple and then the father of Rajkumar gathered main people of his caste and in their presence, again the marriage of Rajkumar and Mamta was solemnised as per the caste customs prevailing in their Society. In the cross examination, this witness (P.W.3) stated that he has seen Nirmala and Dharamlal staying together and accepted the suggestion that in their society, there is no dissolution of marriage or divorce by document in writing. 16. Witness No.4 Mamta herself deposed that Rajkumar was her husband and he died on 16.07.2009. In the cross examination, this witness (P.W.3) stated that he has seen Nirmala and Dharamlal staying together and accepted the suggestion that in their society, there is no dissolution of marriage or divorce by document in writing. 16. Witness No.4 Mamta herself deposed that Rajkumar was her husband and he died on 16.07.2009. She has deposed that her marriage was performed in a temple. She has deposed that out of the wedlock with Rajkumar, three children namely Sweta, Shephali and son Samir were born who were plaintiffs 2, 3 & 4 respectively. This witness has accepted the documents i.e., death certificate exhibited as Ex.P.1; the letter of SECL dated 29.4.2003 exhibited as Ex.P-2(C) which was communicated by the Labour Manager to deceased Rajkumar wherein the names of 3 children were shown as dependents i.e., Shephali (daughter), Sweta (daughter) and Samir Kumar (son); the letter written by late Raj Kumar to SECL, copy of it was also marked as Ex.P-3 to show the names of the same dependents; Form PS-3 is relating to the particulars of family members (Ex.P-6C) and Form PS-4 is relating to the details of nominee (Ex.P7C) wherein the relation of this witness has been shown as wife i.e., Smt. Mamta Devi. Therefore the documents surfaced on the face of the official records of the employer would explicitly show the marital status of deceased employee Rajkumar wherein the names of plaintiffs were recorded as wife and children. The mark sheets of children exhibited as Ex.P-8 of Ku. Sweta, Ex.P-9 of Samir and Ex.P.10 of Ku. Shefali show the name of Raj Kumar as father and their caste is shown as Satnami. 17. Now coming back to the evidence of defendant Nirmala, she has stated that the dissolution of marriage in Satnami caste is recognized after the order of the Court. She has stated in her cross examination that two children were born out of such relation with Rajkumar and accepted the fact that Ganga Bai, mother of Rajkumar, filed an application for grant of maintenance to the two children Vicky and Geeta and the amount was being paid to them after deductions from the salary of Rajkumar. She tried to demonstrate the fact that she was availing the ration benefit by showing the name of Rajkumar in the ration card in 2013. She tried to demonstrate the fact that she was availing the ration benefit by showing the name of Rajkumar in the ration card in 2013. She denied the fact that she was not the wife of Rajkumar and was kept as his concubine. She also denied the suggestion that she left Raj Kumar and had chosen Dharamlal as her husband. She has also denied the further marriage with Kheekhram Sonwani. She has denied the fact that she deserted Rajkumar and her two children therefore, the children were looked after by their grand mother Ganga Bai. She further denied the practice of marriage by “Chudi custom” and the practice of divorce “Chod Chutti” in Satnami community which she belonged. D.W.2 & D.W. 3 have also not stated anything except made an effort to say that the practice of Chudi custom is not recognized. 18. The person from S.E.C.L., Mahendra Singh (D.W.4), an employee of SECL (D.W.4) proved the official documents. Service book of late Rajkumar was proved as Ex.D-7. The nomination-form filled-up as per the gratuity Rules was proved, copy of which has been exhibited as Ex.D.8-C. Form P.S-3 was proved as Ex.D-9, copy of which has been filed as Ex.9(C) whereby the particulars of family members were filled in to show that Mamta Devi was wife and Sweta and Shephali were daughters of late Rajkumar. Further the order directing to record the names in LTC option form was filed as Ex.D-11, copy of which has been placed as Ex.11(C). 19. Reading of the aforesaid pleadings along with evidence would show that sufficient pleading in the plaint was made about the existing practice of Chudi custom of marriage and customary divorce (Chod Chutti) in Satnami community and the denial of defendant no.1 Nirmala was a simplicitor. No specific denial was made by her by elaborating the nonexistence of customary divorce and custom of Chhudi marriage in Satnami caste. Reading of evidence of plaintiff witness Ganga Bai (P.W.1) and other witnesses Pitambarlal (P.W.2) and Dhaja Ram (P.W.3) and Ganga Bai (P.W.4) would amply show that such customary divorce was properly pleaded and proved as they have similarly stated that customary divorce was existing in the community of Satnami and when a married woman accepts the Chudifrom a person other than the husband, the marriage automatically comes to an end. 20. 20. The Supreme Court in the matter of Gurdit Singh Versus Angrez Kaur reported in AIR 1968 S.C. 142 has recognized the customary divorce wherein it was held that when the existence of custom has been proved in a community to which the parties belong, in such case, the custom of divorce would be saved and would lead to a valid divorce. Further in Dr. Surajmani Stella Kujur v. Durga Charan Hansdah AIR 2001 S.C. 938 (Para 11) the Apex Court held that that the importance of the custom in relation the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 saving the validity of a marriage solemnized prior to the commencement of the Act which otherwise be invalid after passing of the Act. The Court further observed that nothing in the Act can affect any right, recognised by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnised before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. 21. In the instant case, the evidence and pleadings on the custom would show that since ancient time, the Chudi Custom of marriage and the customary divorce i.e., Chod Chhuttiis existing in Satnami community and there is a well established practice of such unbroken rituals which has not been negated by any cogent evidence by the defendants. Therefore, the customary divorce which is prevalent in the Satnami community to which late Raj Kumar and Nirmala adopted and acted upon would lead to prove the relationship between the parties and on this point we would be guided by section 50 of the Indian Evidence Act, 1852 to form our opinion as to the relationship of one person to the other and in view of the depositions of Ganga Bai (P.W1) mother of late Raj Kumar as also other witnesses Pitambar Lal (P.W.2) and Dhajaram (P.W.3) who had special means of knowledge as to the existence of relationship of the parties with late Rajkumar. Thus the crucial facts which emerged from the pleadings and evidence of parties would clearly show that defendant Nirmala is the first wife of late Rajkumar and after she performed Chudimarriage with a second male as per the caste custom, the first husband Raj Kumar married to plaintiff Mamta. Therefore, it would be relevant to hold that defendant Nirmala had deserted the first husband late Rajkumar by accepting Chudi from a second male as per the prevalent caste custom, as such, her relations of first marriage with Rajkumar would automatically come to an end. 22. In view of what has been discussed above, we are of the view that importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29(2) thereby dissolution of marriage by prevailing custom can be recognized. 23. In the result, we do not find any merit in the appeal warranting interference in the judgment and decree passed by the learned court below. Appeal is dismissed. Accordingly, a decree be drawn.