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AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.389 of 2002
Order reserved on: 11-3-2019
Order delivered on: 28-3-2019
Sanmet Bai, W/o Shri Vishwanath Rajwar, aged about 45 years, caste
Rajwar, Occupation Agriculture, R/o Village Thore, Tahsil Ambikapur,
Distt. Surguja (C.G.)
(Plaintiff)
—- Appellant
Versus
1. Mu. Rasekeliya Bai, Wd./o Late Shri Aghansai, aged about 45 years.
2. Butan, S/o Late Shri Aghansai, aged about 16 years (Minor), through
Natural Guardian Respondent No.1, Mus. Rasekeliya Bai
Both Caste Rajwar, R/o Village Dhore, Tah. Ambikapur, Distt. Surguja
(C.G.)
3. State of Chhattisgarh, through Distt. Collector, Surguja (C.G.)
(Defendants)
—- Respondents
For Appellant: Mr. Sushil Dubey and Mr. Aman Upadhyay, Advocates.
For Respondents No.1 and 2: –
Mr. A.K. Prasad and Mr. Rishi Mahobia, Advocates.
For Respondent No.3 / State: –
Mr. R.K. Jaiswal, Panel Lawyer.
Hon’ble Shri Justice Sanjay K. Agrawal
C.A.V. Judgment
1. The following substantial question of law was framed at the time of
admission of appeal: –
“Whether the Learned Lower Appellate Court was justified
in law in reversing the decree passed by the Trial Court and
dismissing the suit of the plaintiff by holding marriage of
defendant No.1 Rasekeliya Bai with late Aghansai proved
in the absence of legally admissible evidence of proof of
valid marriage in accordance with law?”
(Parties hereinafter will be referred as per their status and
ranking shown in the plaint before the trial Court.)
2. The suit property was held by Dular Sai. His widow namely Bechni
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had filed the instant suit for declaration of title and permanent
injunction, but during the pendency of suit, she died and her daughter
Sanmet was substituted as plaintiff in the suit, as her son Aghan Sai
had already died on 3-1-1981. The original plaintiff has filed suit that
her son Aghan Sai was impotent and on account of his impotency, his
wife left him and thereafter, Aghan Sai did not marry any woman
including defendant No.1 and defendant No.2 is not the son of Aghan
Sai out of his alleged wedlock with defendant No.1. Mutation was
done by the revenue authority in revenue records in the names of the
plaintiff and the defendants jointly leading to filing of suit for
declaration that the plaintiff is the exclusive title holder of the suit land
and also entitled for permanent injunction. Defendants No.1 2 filed
written statement stating inter alia that Aghan Sai had married
Raskeliya – defendant No.1 and out of their wedlock, defendant No.2
was born and therefore they are also entitled to succeed the suit
property of Dular Sai.
3. The trial Court decreed the suit holding that marriage had never taken
place between Aghan Sai and defendant No.1 and therefore
defendant No.2 is also not entitled to succeed the property of Aghan
Sai by virtue of Section 16(3) of the Hindu Marriage Act, 1956 against
which first appeal was preferred by defendants No.1 2 and the first
appellate Court reversed the finding of the trial Court by holding that
marriage of Aghan Sai was solemnised with defendant No.1 and
defendant No.2 is son born out of their valid wedlock and as such, set
aside the decree of the trial Court against which second appeal has
been preferred by the plaintiff in which substantial question of law has
been formulated which has been set-out in the opening paragraph of
this judgment.
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4. Mr. Sushil Dubey, learned counsel appearing for the appellant /
plaintiff, submits that the first appellate Court is absolutely unjustified
in holding that marriage of Aghan Sai was solemnised with defendant
No.1, as there is no legally admissible evidence on record to prove the
valid marriage. He further submits that birth certificate of defendant
No.2 dated 31-10-1980 has been relied upon which is not proved as
well as un-exhibited document and which has not been proved in
accordance with law, therefore, the first appellate Court is absolutely
unjustified in relying upon the said unproved document. He also
submits that there is no evidence at all on the record to hold that
marriage of defendant No.1 was solemnised ever with Aghan Sai and
therefore judgment decree of the first appellate Court deserve to be
set aside by restoring the judgment decree of the trial Court.
5. Mr. A.K. Prasad, learned counsel appearing for defendants No.1 2 /
respondents No.1 2 herein, assisted by Mr. Rishi Mahobia, submits
that the first appellate Court is absolutely justified in dismissing the
suit of the plaintiff, as there is sufficient evidence on record to hold that
marriage of defendant No.1 was solemnised with Aghan Sai and
defendant No.2 was born out of their wedlock and therefore the suit
filed by the plaintiff was rightly dismissed by the first appellate Court.
6. I have heard learned counsel for the parties, considered their rival
submissions made herein-above and also went through the records
with utmost circumspection.
7. The question for consideration is, whether the fact of marriage of
Aghan Sai with defendant No.1 Raskeliya has rightly been held to be
proved by the first appellate Court?
8. In order to decide the point and before adverting to the facts of the
case, it would be appropriate to notice the legal position with regard to
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marriage.
9. As per Hindu law, among Hindus, marriage is always considered to be
a sacrament and divorce was not recognised as a means to put an
end to marriage, it was only an exception where it is recognised by
custom. The Hindu Marriage Act, 1955 (for short, ‘the Act of 1955’)
came into force on 18-5-1955. Section 5 of the Act of 1955 lays down
conditions for a Hindu marriage and Section 7 lays down ceremonies
for a Hindu marriage by providing that a Hindu marriage may be
solemnized in accordance with the customary rites and ceremonies of
either party thereto. Sub-section (2) of Section 7 provides that where
such rites and ceremonies include the saptpadi (that is, the taking of
seven steps by the bridegroom and the bride jointly before the sacred
fire), the marriage becomes complete and binding when the seventh
step is taken. Section 11 of the Act of 1955 provides that any
marriage solemnised after the commencement of the Act shall be null
and void and may, on a petition presented by either party thereto
against the other party, be so declared by a decree of nullity if it
contravenes any one of the conditions specified in clauses (i), (iv) and
(v) of Section 5. Likewise, marriage can be dissolved between them
on any of the grounds specified in Section 13 of the Act of 1955.
Section 29 of the Act of 1955 saves the rights recognised by custom
or conferred by special enactment to obtain the dissolution of
marriage, whether solemnised before or after commencement of the
Act. Section 29(2) of the Act 1955 states 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. Clause (a) of Section 3 of the Act of 1955, which defines the
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expressions “custom” and “usage”, reads as under: –
“(a) the expressions “custom” and “usage” signify any rule
which, having been continuously and uniformly observed
for a long time, has obtained the force of law among
Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not
unreasonable or opposed to public policy; andProvided further that in the case of a rule applicable
only to a family it has not been discontinued by the family;”
11. Thus, the custom must have been observed for a long time and must
be ancient. In pages 49 and 50 of the Mayne’s Hindu Law Usage, it
is observed that,
“The beginnings of law were in Customs. Law and usage
act, and react upon each other. A brief in the propriety, or
the imperative nature of a particular course of conduct,
produces a uniformity of behaviour in following it; and an
uniformity of behaviour in following a particular course of
conduct produces a belief that it is imperative, or proper, to
do so. When from either cause, or from both causes, a
uniform and persistent usage has moulded the life, and
regulated the dealings, of a particular class of community, it
becomes a custom, which is a part of their personal law.”
12. Customs will have to be always strictly proved and in relation to
matrimonial matters particularly to existence of customs. In this
connection, the decision of the Supreme Court rendered in the matter
of Gurdit Singh v. Mst. Angrez Kaur and others 1 is more relevant
and in that case, there was an entry recorded in riwaj-i-am which had
entered custom of divorce amongst Hindu Jats of Jullundur District.
The Court, while holding dissolution of marriage by custom was still
valid and the divorced wife was entitled to enter into a second
marriage, held that riwaj-i-am was not reliable to prove custom of
divorce. The Supreme Court held so, even in a situation where there
was an entry regarding a so-called divorce.
13. In the matter of Gokal Chand v. Parvin Kumari 2, the Supreme Court
1 AIR 1968 SC 142
2 AIR 1952 SC 231
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laid down the principles to be kept in view in dealing with questions of
customary law which state as under: –
“1. It should be recognized that many of the agricultural
tribes in the Punjab are governed by a variety of customs,
which depart from the ordinary rules of Hindu and
Muhammadan law, in regard to inheritance and other
matters mentioned in Section 5 of the Punjab Laws Act,
1872.
2. In spite of the above fact, there is no presumption
that a particular person or class of persons is governed by
custom, and a party who is alleged to be governed by
customary law must prove that he is so governed and must
also prove the existence of the custom set up by him. See
‘DAYA RAM v. SOHEL SINGH’, 110 P.R. 1906 p. 390 at
410; ‘ABDUL HUSSEIN KHAN v. BIBI SONA DERO’, 45
Ind App 10 (PC).
3. A custom, in order to be binding, must derive its force
from the fact that by long usage it has obtained the force of
law, but the English rule that “a custom, in order that it may
be legal and binding, must have been used so long that the
memory of man runneth not to the contrary” should not be
strictly applied to Indian conditions. All that is necessary to
prove is that the usage has been acted upon in practice for
such a long period and with such invariability as to show
that it has, by common consent, been submitted to as the
established governing rule of a particular locality. See MT.
SUBHANI v. NAWAB’, AIR 1941 PC 21 at 32.”
14. The Supreme Court in the matter of Yamanaji H. Jadhav v. Nirmala 3
has held that custom being an exception, the general rule of divorce
ought to have been specifically pleaded and established by leading
cogent evidence by the person propounding such custom and
observed as under: –
“[T]he 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 to divorce in the community to which
the parties belong. 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,3 (2002) 2 SCC 637
7severance 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 a 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.
Therefore, there was an obligation on the trial court to have
framed an issue whether there was proper pleading 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.”
15. The principle of law laid down in Yamanaji H. Jadhav (supra) was
followed with approval by the Supreme Court in the matter of
Subramani and others v. M. Chandralekha 4 by holding that as per
Hindu law, divorce was not recognised as a means to put an end to
marriage which was always considered to be a sacrament, only
exception being where it was recognised by custom. It was further
held that for getting customary divorce in the community, it must be
specifically pleaded and established by the person propounding such
custom. Paragraphs 10 and 14 of the report state as follows: –
“10. It is well established by a 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. The High Court came to the
conclusion that the appellants failed to either plead the
existence of a custom in their community to dissolve the
marriage by mutual consent or to prove the same by
leading cogent evidence.
14. From a perusal of the above averments in the
pleadings, it is clear that the defendant-appellants did not
plead that in their community, marriage could be dissolved
under custom. They even failed to respond to the
averments made in the plaint that no custom was prevalent
in their community to dissolve the marriage under custom.
In the absence of such pleadings the trial Court rightly did
not frame an issue as to whether the marriage in the
community to which the parties belong could be dissolved
under the custom prevalent in their community.”
16. In Gokal Chand (supra), the Supreme Court has also held that
4 (2005) 9 SCC 407
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continuous cohabitation of a man and a woman as husband and wife
may raise the presumption of marriage. It was further held that but
the presumption which may be drawn from long cohabitation is
rebuttable, and if there are circumstances which weaken or destroy
that presumption, the Court cannot ignore them and observed in para
10 as under: –
“(10) … It seems to us that the question as to how far the
evidence of those particular witnesses is relevant under S.
50 is academic, because it is well-settled that continuous
cohabitation for a number of years may raise the
presumption of marriage. In the present case, it seems
clear that the plaintiff and Ram Piari lived and were treated
as husband and wife for a number of years, and, in the
absence of any material pointing to the contrary conclusion,
a presumption might have been drawn that they were
lawfully married. But the presumption which may be drawn
from long cohabitation is rebuttable, and if there are
circumstances which weaken or destroy that presumption,
the Court cannot ignore them. We agree with the learned
Judges of the High Court that in the present case, such
circumstances are not wanting and their cumulative effect
warrants the conclusion that the plaintiff has failed to prove
the factum of his marriage with Ram Piari. …”
17. The principle of law laid down in Gokal Chand (supra) was followed
with approval recently by the Supreme Court in the matter of
Dhannulal and others v. Ganeshram and another 5.
18. Reverting to the facts of the present case in the light of the principles
of law laid down herein-above, in the instant case, the dispute is with
regard to the suit property held by Dular Sai, as the suit land was
settled in the Surguja Settlement. He died in the year 1945-46 and his
son Aghan Sai married in 1957 with a woman, but alleging that he is
impotent, she left Aghan Sai and it is the case of the original plaintiff
i.e. his mother, that since he was impotent, he did not solemnize any
marriage with any woman including defendant No.1 after his wife left
him for her matrimonial home. Even the original plaintiff also claimed
5 (2015) 12 SCC 301
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that Aghan Sai – her son, never solemnized any marriage with
defendant No.1 and therefore the question of birth of defendant No.2
out of the wedlock with defendant No.1 does not arise. It is alleged
that Aghan Sai allegedly married defendant No.1 after coming into
force of the Act of 1955 and and as per the Act of 1955, marriage can
be declared void under Section 11 and can be dissolved under
Section 13 of the Act of 1955 on the grounds enumerated therein,
except customary divorce which is saved by virtue of the provisions
contained in Section 29(2) of the Act of 1955. It is the case of the
plaintiff that no such marriage has been solemnized, whereas it is the
case of defendants No.1 2 that Aghan Sai – plaintiff’s son, had
solemnized marriage with defendant No.1. In the written statement
filed by defendants No.1 2 it was simply pleaded that after Aghan
Sai’s first wife left him, he developed relation with defendant No.1 and
thereafter, remarried her in the shape of bandwa sagai. The pleading
made in the written statement is absolutely silent whether among the
parties any customary marriage in bandwa sagai form is permissible
and whether it has taken place in the shape of custom which is
continuing for a fairly long time, which defendants No.1 2 were
obliged to plead and thereafter to establish by leading evidence that
any such custom i.e. marriage in the shape of bandwa sagai which
Aghan Sai has allegedly entered with defendant No.1, is prevalent
among them. As such, the valid custom of customary marriage in
bandwa sagai form in the pleading is absolutely missing. The
defendants on whom the burden lies to prove the marriage in bandwa
sagai form have examined defendant No.1 herself as DW-1, but she
did not state about any customary marriage in bandwa sagai form
except pleading that she has married Aghan Sai in bandwa sagai
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form. Likewise, her other witness Ram Karan (DW-2) has also stated
in paragraph 16 of his cross-examination that on account of their illicit
relation, defendant No.1 became pregnant in and also stated that no
marriage took place between them, but in the same breath has stated
that the marriage was in chudi form. As such, the fact of prevalence
of customary marriage among them is not established.
19. Now, the question is, whether, even otherwise, defendant No.1 has
proved the fact of marriage with Aghan Sai?
20. Defendant No.1 (DW-1) in her written statement stated that she firstly
married Shivsai Rajwar and since he became innocent, after chod
chutti, she married Budhram Rajwar of Village Sukhri, that also
suffered the same fate and thereafter, she again entered into marriage
with Chatru Ram. She has admitted three marriages, but in the cross-
examination she has clearly admitted that she allegedly married five
persons i.e. she had five husbands. In the cross-examination, para 9,
she has stated that after Chatru left her, she was staying with Konda
and when she was staying with Konda, there was no chod chutti with
Chatru and then she allegedly entered into marriage with Aghan Sai.
She further admitted that there was no chod chutti with Konda and
she also admitted that she had already become pregnant with Aghan
Sai when she came into the house of Aghan Sai and when Aghan Sai
left her, she made an application for maintenance before the
competent court in which reply was filed vide Ex.P-2 by Aghan Sai
claiming that he is impotent and he was administered medicine by one
Bechan Das to cure the impotency by which he became insane and a
man of unsound mind.
21. The aforesaid evidence available on record clearly show that marriage
of defendant No.1 was never solemnized with Aghan Sai. Not only
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this, there is overwhelming evidence available on record to hold that
Aghan Sai was impotent. In the plaint allegations it has clearly been
pleaded by the original plaintiff that since her son Aghan Sai was
impotent, therefore, his wife left for her matrimonial house. In Ex.P-2
which is a copy of reply filed by Aghan Sai, he has clearly admitted
that he was impotent and on account of treatment, he took some
forest produce to get rid of his impotency, but on taking the said
medicine, he became a man of unsound mind. As such, since Aghan
Sai was proved to be impotent, the question of birth of defendant No.2
out of his wedlock with defendant No.1 does not arise, even if the
marriage is held to be established which is not established, as
discussed herein-above.
22. Therefore, the finding recorded by the first appellate Court that
marriage of defendant No.1 was solemnized with Aghan Sai, is
perverse and contrary to record and it is liable to be set aside.
Accordingly, judgment decree of the first appellate is set-aside and
that of the trial Court is restored. The substantial question of law is
answered accordingly.
23. The second appeal is allowed to the extent indicated herein-above
leaving the parties to bear their own cost(s).
Sd/-
(Sanjay K. Agrawal)
Judge
Soma
