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2022 DIGILAW 615 (CHH)

Chitrekha Kawar D/o Shri Itwar Singh Kawar v. Anand Rameshwar S/o Nohar Lal Kawar

2022-12-20

GOUTAM BHADURI, RADHAKISHAN AGRAWAL

body2022
JUDGMENT : RADHAKISHAN AGRAWAL, J. 1. The instant appeal is filed under Section 19(1) read with Section 28 of the Family Courts Act, 1984 (for brevity ‘Act’ of 1984) by the appellant/wife (for brevity ‘wife’) against the judgment and decree dated 22.06.2017 passed by the Family Court, Korba (CG) in Civil Suit No. 134-A/2016 whereby the suit filed under Section (7) (1)(g) of the Restitution of Conjugal Rights has been dismissed. 2. Appellant/wife has moved application with the averment that she and respondent/husband (for brevity ‘husband’) belong to Scheduled Tribe and their marriage was solemnized in the year 2012 as per their social rituals and customs and from their wedlock they were blessed with a girl child. It is stated that during pregnancy the appellant/wife was suffering from deficiency of blood and the husband did not take care of her therefore she left to her parents house at BALCO Nagar where she got treated by her father. It is stated that she gave birth to a girl child and after few days, her husband and in-laws took them to their maternal house. However, after 2-3 days, the husband informed her father to take his daughter as she is physically and mentally not fit. It is further stated that the husband kept the infant girl child away from the appellant/wife and did not allow her to feed. Appellant/wife has stated that she was ill-treated by her husband and in-laws and looking to the condition of his daughter, she was taken by her father to Balco Nagar and was given treatment for six months. It is stated that the total expenses of Rs. 8-10 lacs was spent by her father. Appellant has stated that after the birth of her child, she was kept away by the husband and therefore a social meeting was convened where the respondent/husband denied to keep the appellant/wife with him and has also refused to give the child. Thereafter on 29.06.2016, another meeting was convened where the parties amicably relegated and agreement was entered into between the parties and the husband paid Rs. 5,00,000/- towards the expenses for her treatment. On 14.03.2016, father of appellant/wife has written a letter to the head of the society for granting her maintenance of Rs. 5,000/- per month. Thereafter on 29.06.2016, another meeting was convened where the parties amicably relegated and agreement was entered into between the parties and the husband paid Rs. 5,00,000/- towards the expenses for her treatment. On 14.03.2016, father of appellant/wife has written a letter to the head of the society for granting her maintenance of Rs. 5,000/- per month. She has further stated that the husband has deserted her and has kept her away from discharging her matrimonial obligations and therefore she has filed application for Restitution of Conjugal Rights. 3. The husband has filed reply wherein it has been pleaded that the application is not applicable as there is no provision. It has been pleaded that the wife and husband belong Scheduled Tribe and as per the agreement dated 28.02.2016, by mutual consent between the parties, the husband has agreed to pay Rs. 5,00,000/- as maintenance vide Ex.D-1. It has been stated by the respondent/husband that the wife herself has stated that their marriage is governed by the customary practices of the tribes and that the application under Section 7(1)(g) for restitution of conjugal rights is a promissory estoppel and is against the law, therefore the same may be rejected. Husband has further stated that in Para 7 of the agreement, the wife has stated that she has no objection if the daughter is under the protection of her father. Respondent/husband has further stated that the marital relations have completely dead and in the tribal society (Kanwar), as per the agreement entered into between the parties before the society at village Dhanras in the house of the appellant/wife, with the consent of the wife, the marriage has been dissolved and when the marital relation is not in existence, then prima-facie the application for restitution of conjugal rights is liable to be rejected. 4. Counsel for the appellant/wife submits that the Family Court has committed illegality by not appreciating the evidence and documents on record and relied on the evidence without pleadings. It is submitted that the Family Court has wrongly held that the applicant is living separately from her husband without reasonable cause and it has erred in relying upon the agreement deed Ex.D-1 which according to the appellant/wife, the Family Court has dismissed the suit for restitution of conjugal rights without considering the grounds raised by her and without appreciating the evidence adduced by her in support of her averment. 5. 5. Per contra, counsel for the respondent/husband submits that trial court has properly appreciated the evidence on record and rightly dismissed the case of the appellant/wife. It is submitted by the respondent/husband that as per the agreement dated 28.02.2016, by mutual consent between the parties vide Ex.D-1 the marriage has been dissolved. 6. Heard counsel for the parties and perused the material available on record. 7. Appellant/wife (AW-1) in her written statement has stated that the parties belong to Scheduled Caste (Kanwar) and their marriage was solemnized in the year 2012 as per social rites and rituals at vilage Dhanras, Korba. She has stated that she resided at her matrimonial house for about one year and she gave to a girl child on 25.05.2013. She has stated that as her health was deteriorating when she was pregnant, her husband informed his father to take her for treatment and then she was given treatment by her father at Balco Nagar, Korba where she gave birth to a girl child. Thereafter the respondent/husband took her and the baby with him to the matrimonial house where she was not allowed to feed her baby and kept away from her. She has stated that the husband informed the father of the appellant/wife to take her for proper medication. She has stated that she was not given her child and when after 6-7 months of treatment at Blaco Nagar, which cost upto 8-10 lacs, her father asked the in-laws to take her they refused to take her and on 15.11.2015, in a society meeting the appellant/husband refused to give the child to her and in the second meeting on 29.02.2016, agreement deed was signed by which Rs. 5,00,000/- was given for the treatment given by her father. She has stated that she was threatened by the husband and family members for signing the agreement. 8. In her cross-examination she has stated that the respondent/husband has paid for the expenses of her treatment and after delivery of child, he took them to her matrimonial house. She has stated that she went for her treatment with her father along with her child. She has stated that the in-laws and her husband refused to give her child and that she is ready and willing to live with husband and discharge her matrimonial obligations. She has stated that she went for her treatment with her father along with her child. She has stated that the in-laws and her husband refused to give her child and that she is ready and willing to live with husband and discharge her matrimonial obligations. She has also stated that the marriage has been dissolved as per their society and it was in writing as well. 9. Ramayan Singh (AW-2) has stated that a social meeting was convened wherein his daughter was willing to live with her husband and daughter but the family members of respondent/husband gave Rs. 5,00,000/- and agreement has been entered into which was signed by the wife and her father. 10. Itwar Singh (AW-3) father of the appellant/wife has stated that marriage of his daughter with the respondent was solemnized in the year 2012 as per social rites and rituals at vilage Dhanras, Korba. He has stated that when his daughter became pregnant, she was suffering from deficiency of blood and therefore the respondent/husband informed him to get her treatment and thereafter she gave birth to a girl child. He has stated that the respondent then took his daughter and her child where she was kept away from her child and not allowed to feed her baby. He has stated that they informed him to take his daughter to get her properly treated. However, after giving treatment for 6-7 months, he informed the respondent/husband to take her but on 15.11.2015, they have called for a social meeting wherein an agreement was entered into and the marriage was dissolved. Jirjodhan Singh (AW-4) has also supported the statement of AW-2 & AW-3. 11. Respondent/husband (NAW-1) has stated that their marriage was solemnized in the year 2012 as per social rites and rituals at village Dhanras, Korba. He has stated that after the birth of child, she was not able to look after her and she frequently used to visit her parents house. He has stated that before the members of the society, the wife was sent to Balco Nagar Korba for her treatment but there was not change in her behaviour and the members have stated that if he is not willing to live with her then he can pay the expenses for her living. In the said meeting, it was agreed that amount of Rs. In the said meeting, it was agreed that amount of Rs. 5,00,00/- has to be paid and agreement was entered into vide Ex.D-1. Shivnarayan Singh (NAW-2) has stated that the parties belong to Kanwar tribe. He has stated that the appellant was keeping ill health and was unable to fulfill the marital obligations and therefore the respondent/husband denied to live with her and as per agreement deed, Rs. 5,00,000/- have been paid and the marriage was dissolved at the social level. He has also stated that in the tribal community divorce is valid at social level. Nohar Lal (NAW-3) father of the respondent/husband and Manharan Singh Kanwar (NAW-4) have also given similar statement to that of Shivnarayan Singh. 12. From the above evidence, it is clear that both the parties belong to ‘Kanwar’ tribe and the marriage between the parties has been dissolved in a social meeting vide agreement deed Ex.D-1. 13. There is no precedent which bars members of the Scheduled Tribe to approach the Family Court by filing any suit or proceedings relating to matters mentioned in Clauses (a) to (g) of the Explanation to Section 7 of the Family Courts Act. If at all, such matter is filed, seeking adjudication under the law, applicable to them i.e. Customary Laws, they cannot resort to the provisions of Hindu Marriage Act, 1955, if the parties are not governed by the Hindu Marriage Act, 1955. Reference is made to the decision of this Court in the case of Rajendra Kumar Singh Munda vs. Smt. Mamta Devi in F.A. No. 186 of 2008, vide judgment dated 20th August, 2015. This Court affirmed the order of the Family Court, dismissing the suit for divorce, filed by a member of Schedule Tribe, under Section 13 of the Hindu Marriage Act, 1955, on the ground that the Hindu Marriage Act does not apply. Customary Laws are applicable in the matters of succession, where parties are governed by Customary Laws. [See Bharat Bhushan vs. Tej Ram and Others, (2016) 15 SCC 655, T. Ravi and Another vs. B. Chinna Narasimha and Others, (2017) 7 SCC 342 and Narayanan Rajendran vs. Lekshmi Sarojini, (2009) 5 SCC 264 ]. 14. Customary Laws are applicable in the matters of succession, where parties are governed by Customary Laws. [See Bharat Bhushan vs. Tej Ram and Others, (2016) 15 SCC 655, T. Ravi and Another vs. B. Chinna Narasimha and Others, (2017) 7 SCC 342 and Narayanan Rajendran vs. Lekshmi Sarojini, (2009) 5 SCC 264 ]. 14. As per agreement deed Ex.D-1, dated 29.02.2016, a settlement has been entered into by which the appellant has agreed that “she will not reside with the respondent/husband and she can only meet the child time to time and has set free the respondent/husband for second marriage. She will also not interfere in his personal life. Secondly, she has obtained cash of Rs. 5,00,000/- from the husband as permanent settlement and also agreed that she will not claim for any kind of legal rights to marriage. Lastly, the child will be under the protection of respondent/husband and she has no objection for the same. 15. The word “Jurisdiction” is defined under Section 7 of the Act of 1984. Family Court having a jurisdiction to decide a suit or proceeding between the parties for dissolution of marriage and other related matters, above provision is applicable to all religions and communities and the Court is conferred with a power to adjudicate the matters under Section 7 of the Act of 1984. There was no material to support such finding and it has been arrived at without there being any pleading and necessary specific issue in this regard. 16. It is well settled proposition of law that when custom becomes part of the tribal community as a law, it will guide their attitude and practice in their social and economic life. Custom is considered as the guiding principle amongst them, which will acquire the status of law, the Family Court has not considered the application of custom amongst the Tribes. It is also a well settled principle that for assumption of jurisdiction by a Court or a Tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the Court or Tribunal has power to decide adjudicatory facts or facts in issue, based upon the pleadings of the parties. It is also a well settled principle that for assumption of jurisdiction by a Court or a Tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the Court or Tribunal has power to decide adjudicatory facts or facts in issue, based upon the pleadings of the parties. Whether the parties are able to plead and prove the custom governing the matters of divorce between them for seeking relief was an issue to be decided on merits after considering the pleadings and evidence on record. In such a case, where parties claimed to be governed by Customary Law, a Court or a Tribunal ought to have framed an issue to that effect. Once it is found that the parties are governed by the Customary Law, the parties are required to plead and prove the customs, by which, they are governed in matters concerning marriage and divorce etc. 17. While dealing with the course to be followed by the Family Court in a matter of divorce involving Customary Law, Hon’ble Supreme Court in case of Yamanaji H. Jadhav vs. Nirmala, (2002) 2 SCC 637 , observed as follows: “7......As per the Hindu Law administered by courts in India divorce was not recognized as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognized 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. 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 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. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the Court.....” 18. Further, Hon’ble Supreme Court in case of Subramani and Others vs. M. Chandralekha, (2005) 9 SCC 407 observed as follows: “10. It is well established by long chain of authorities that prevalence of customary divorce in the community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom....” 19. It was thus necessary for the Family Court to call upon the party, seeking divorce/restitution of conjugal rights etc. under the Customary Law to plead and establish such custom by leading evidence. In any event, learned Family Court ought not have dismissed the suit since the parties belonged to Tribal Community and are governed by Customary Law, which is not a codified substantive law, like the Hindu Marriage Act, 1955, Special Marriage Act, 1954 and Divorce Act, 1869. 20. In case of Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah and Another, (2001) 3 SCC 13 , Hon’ble Supreme Court has held as follows: “10. 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, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence.” 21. In view of the above authoritative pronouncements of law on the issue by the Hon’ble Supreme Court as well as in view of the facts and circumstances of the instant case, the matter needs to be remanded back to the Family Court for reconsideration. 22. In the result, the appeal is allowed. Impugned judgment and decree dated 22.06.2017 passed by the Family Court, Korba, C.G. is set aside. The matter is remanded to the Family Court, Korba to reconsider the case in accordance with law. The Family Court is also directed to frame a specific issue in regard to customary law for divorce/restitution of conjugal rights etc. In this regard, we permit the parties to amend their pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary law. The Family Court shall make endeavour to conclude the proceedings expeditiously. The parties are directed to appear before the Family Court concerned on 30.01.2023. In this regard, we permit the parties to amend their pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary law. The Family Court shall make endeavour to conclude the proceedings expeditiously. The parties are directed to appear before the Family Court concerned on 30.01.2023. Record of the Family Court be sent back forthwith.