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Sanmet Bai vs Mu.Rasekeliya Bai And Others 50 … on 28 March, 2019

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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; and

Provided 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
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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 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
9

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

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