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2022 DIGILAW 589 (HP)

BAHADUR SINGH S/O SHRI RAM NATH v. BALA DASSI, EX-W/O SHRI BAHADUR SINGH

2022-09-27

SATYEN VAIDYA

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JUDGMENT : SATYEN VAIDYA, J. 1. By way of this second appeal, appellant has assailed judgment and decree dated 26.11.2008 passed by learned District Judge, Kinnaur, Civil Division at Rampur Bushehr, H.P. in Civil Appeal No. 30 of 2008 whereby the judgment and decree dated 07.06.2008 passed by learned Civil Judge (Sr. Division), Rampur Bushehr, District Shimla in Case No. 15-1 of 2005 was affirmed. 2. Appellant was the plaintiff and respondents were defendants before the learned trial Court. The parties hereinafter shall be referred to by the status which they held before the learned trial Court. 3. Brief facts necessary for adjudication of appeal are that plaintiff and defendant No. 1 were married to each. Plaintiff claims that by a customary divorce, their marriage stood dissolved, whereas defendant No. 1 denies the factum of divorce and claims that her marriage with plaintiff still subsists. The status of defendant No. 2 as son of plaintiff is admitted. 4. Plaintiff filed a suit against defendants for possession of premises consisting of one room, one bathroom and W.C. in the house constructed over the land comprised in Khata Khatauni No. 63/131, Khasra No. 1207/331, measuring 0-01- 66 hectares, situate at Chak Khaneri, Tehsil Rampur, District Shimla, H.P. (hereinafter referred to as the ‘suit premises’). 5. Cause of action as pleaded by the plaintiff was that the defendants had forcibly taken possession of suit premises on 13.03.2005. They were ousted by the plaintiff on 14.3.2005 but they again occupied the said premises. As per plaintiff, after his customary divorce with defendant No. 1 she had no right, title or interest in the property exclusively owned by him. 6. Per contra, the suit was contested by the defendants by raising preliminary objections regarding maintainability and under valuation of suit. On merits, the factum of customary divorce was denied. It was asserted that defendant No. 1 was legally wedded wife of plaintiff. It was the plaintiff, who had deserted defendant No. 1 and her children. A daughter was also stated to be born to defendant No. 1 from the loins of the plaintiff. It was submitted that the plaintiff had married another lady and was living with her. Plaintiff had a son from that other lady. Defendant No. 1 alongwith defendant No. 2 and her daughter had been residing in ancestral house of plaintiff, but the same collapsed due to rain and snow. It was submitted that the plaintiff had married another lady and was living with her. Plaintiff had a son from that other lady. Defendant No. 1 alongwith defendant No. 2 and her daughter had been residing in ancestral house of plaintiff, but the same collapsed due to rain and snow. Thereafter, they were provided shelter by Sh. Chhering Ram. Plaintiff did not take pains to enquire about the well-being of the defendants and minor daughter. Since the defendants had no other shelter, they had every right to live with plaintiff. As per the defendants, they were ready and willing to live in the company of the plaintiff. 7. On the basis of pleadings of the parties, learned trial Court framed the following issues: 1. Whether relations inter-se the plaintiff and defendant No. 1 as husband and wife have come to an end in pursuance of a customary divorce, as alleged? OPP 2. Whether the defendants have forcibly occupied the premises in question, as alleged? OPP 3. If issue No. 2 is proved in affirmative, whether the plaintiff is entitled to a decree of possession of the suit premises, as alleged? OPP 4. Whether suit is not properly valued for Court fee and jurisdiction, if so, what is its correct valuation, as alleged? OPD 5. Whether the suit is not maintainable? OPD 6. Relief. Issues No. 1 to 5 were decided in negative and accordingly the suit of the plaintiff was dismissed. 8. Plaintiff assailed the judgment and decree passed by learned trial Court in first appeal, but again remained unsuccessful. Hence, the present appeal. 9. Appeal was admitted on 22.10.2011 on the following substantial questions of law: 1. Whether the judgment/decree dated 26.11.2008 passed by the Court below is perverse, as findings are contrary to pleadings, as relevant material having been ignored and irrelevant material have been taken into consideration and thus findings are contrary to the admissions made by respondent/defendants and evidence on record, which as such has led to miscarriage of justice? 2. Whether the findings arrived by the learned Court below is perverse and thus liable to be set-aside as the Court below failed to appreciate the fact that customary divorce being an exception to the general law of divorce and when the appellant/plaintiff had specially pleaded and established the factum of dissolution of marriage between the party by way of custom? 3. 3. Whether the action of the respondent/defendant in the form of her forcefully illegally entering and taking possession of the suit property, can be declared as rightful, without following the procedure established by law, simply on the pretext that being a wife she is entitled for separate residence under the provisions of the Hindu Maintenance and Adoption Act? 4. Whether the first appellate Court below misread, misconstrued, misinterpreted the provisions of the law with regard to ‘customary practices’ in view of the fact that the stand taken by the appellant/plaintiff stands vindicated by the admission made by the respondent/defendant No. 1 as such the findings of the two Courts below is perverse, erroneous and is error apparent on the face of record? 10. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 11. The fact that the plaintiff and defendant No. 1 are Hindu by religion is not denied. The core question around which the entire controversy revolves is regarding the existence of relationship between the plaintiff and defendant No. 1. Admittedly, the plaintiff and defendant No. 1 were married to each other. The plaintiff asserted that a customary divorce had taken place between him and defendant No. 1. 12. Section 29 in The Hindu Marriage Act, 1955 reads as under: (1) A marriage solemnised between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste. (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. (3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial separation pending at the commencement of this Act, and any such proceeding may be continued and determined as if this Act had not been passed. (4) Nothing contained in this Act shall be deemed to affect the provisions contained in the Special Marriage Act, 1954 (43 of 1954) with respect to marriages between Hindus solemnised under that Act, whether before or after the commencement of this Act. 13. Thus section 29(2) of Hindu Marriage Act though saves right recognised by the custom regarding dissolution of Hindu marriage, but to prove the existence of any right on the basis of a custom, the propounded custom, its prevalence and continuity has to be specifically pleaded and proved with reasonable certainty. 14. Reverting to the facts of the case, the plaint was clearly deficient in culling out requisite pleadings in accordance with law. Plaintiff chose to plead the factum of divorce as under: “3. That defendant No. 1 no doubt was the legally wedded wife of the plaintiff, but on account of differences defendant No. 1 after the birth of defendant No. 2 left the company of plaintiff and by way of customary divorce marriage stood dissolved with the result that even defendant No. 2 remained in custody of defendant No. 1 and his custody was never handed over to the plaintiff. Defendant No. 2 is now 19 years old.” 15. Plaintiff relied upon documents Ext.PW-4/A and Ext. PW-4/B in support of his contention. Vide Ext.PW-4/A defendant No. 1 had allegedly signed a writing in which it was committed on her behalf that she would not remain the wife of plaintiff and the plaintiff was free to marry again. Ext.PW-4/B is another document signed by defendant No. 1 with a recital that the plaintiff would not suffer any curse from the side of defendant No. 1. It is on the strength of these documents that customary divorce is stated to have taken place between the plaintiff and defendant No. 1. 16. PW-3 Budhi Singh has been examined by the plaintiff to prove these documents and the customary divorce. In his examination-in-chief the witness stated that documents Ext PW-4/A and PW-4/B were prepared in his presence. About 20- 21 years back the marriage between Bahadur Singh and Bala Dassi was dissolved mutually. He further maintained that the custom to effect divorce mutually was prevalent since the time of princely states and was still being followed in the area. Earlier a piece of wood was broken to mark divorce now it is recorded in writing. About 20- 21 years back the marriage between Bahadur Singh and Bala Dassi was dissolved mutually. He further maintained that the custom to effect divorce mutually was prevalent since the time of princely states and was still being followed in the area. Earlier a piece of wood was broken to mark divorce now it is recorded in writing. However, in his cross-examination, this witness categorically admitted that now custom of family (mutual) divorce was not existing. Plaintiff while appearing as his own witness also stated that there was a custom of mutual divorce since the time of “Bushehr State” and as per custom his marriage with defendant No. 1 was dissolved. No other witness was examined by the plaintiff to prove the existence of any such custom or its continuance etc. 17. In absence of necessary pleadings and proof as to custom, plaintiff had miserably failed to prove plea to that effect. There were no other examples proved on record to the effect that the practice or custom as claimed was applied or followed in any other case also. Both the learned Courts below have concurrently held so. No fault can be found with the findings returned by the learned Courts below in this regard. It being so, the relationship of husband and wife between the plaintiff and defendant No. 1 cannot be said to have ceased. 18. Another admitted fact of the case is that the plaintiff has married another lady and has a son from her. Plaintiff is residing with that other lady. This clearly shows the blatant neglect of defendants by the plaintiff. Defendants have never expressed intent to reside separately. They were ready and willing to live with plaintiff. It was the plaintiff, who was avoiding the defendants. Defendants have a right of shelter. 19. Similarly, both the courts below have held that forced entry of defendants in the suit premises was not proved. Again, there is no evidence to suggest the contrary, therefore, such findings also cannot be said to be perverse. 20. In view of above discussion, the substantial questions 1, 2 and 4 are answered in negative. As regards question No. 3, since no forceful entry has been proved and further keeping in view the right of wife to reside with husband and corresponding duty of husband to provide her protection/residence, the same is answered accordingly. 21. 20. In view of above discussion, the substantial questions 1, 2 and 4 are answered in negative. As regards question No. 3, since no forceful entry has been proved and further keeping in view the right of wife to reside with husband and corresponding duty of husband to provide her protection/residence, the same is answered accordingly. 21. Resultantly, the appeal fails and the same is dismissed with no orders as to costs. Judgment and decree dated 26.11.2008 passed by learned District Judge, Kinnaur, Civil Division at Rampur Bushehr, H.P. in Civil Appeal No. 30 of 2008 and judgment and decree dated 07.06.2008 passed by learned Civil Judge (Sr. Division), Rampur Bushehr, District Shimla in Case No. 15-1 of 2005 are affirmed. 22. Appeal is accordingly disposed of, so also the pending miscellaneous application (s), if any.