This Second Appeal dismissed by a Single Judge upheld the First Appellate Court's decree. The Court held that the custom of divorce via notarized document was not ancient or certain. Additionally, the petition for annulment was time-barred.
First Appeal allowed; Decree of annulment for wife; Decree for restitution of conjugal rights upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
SECOND APPEAL NO. 124 OF 2017 WITH CIVIL APPLICATION NO.2340 OF 2017
WITH
SECOND APPEAL NO. 125 OF 2017 WITH CIVIL APPLICATION NO.2341 OF 2017
Sudarshan s/o Yamaji Pandhare, Age 35 years, Occupation Service, R/o Gokulnagari, Kopargaon Tq. Kopargaon Dist. Ahmednagar.
...Appellant. (Ori.Petitioner)
VERSUS
Sau. Pallavi w/o Sudarshan Pandhare, Age 28 years, Occupation Household, R/o. C/o. Yuraj Patil, At Post Pachora Tq. Pachora Dist. Jalgaon. ...Respondent. (Ori. Opponent)
Mr. Sachin Deshmukh, Advocate for Appellant. Mr. Milind Patil, Advocate for Respondent.
CORAM : SMT.VIBHA KANKANWADI, J.
Date of Reserving The Order : 20-06-2019.
Date of Pronouncing The Order : 11-09-2019
JUDGMENT :
No.522 of 2013 (Old No.37 of 2013) before 3rd Jt. Civil Judge, Senior
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Division, Jalgaon for annulment of marriage under Section 11 read with Section 5(1) of Hindu Marriage Act. In the same petition, the wife - present respondent had filed counter claim for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. The said petition came to be allowed by the learned Trial Court on 20-122014 and the counter claim was dismissed. Wife approached District Court by filing two separate appeals challenging the decree of annulment in one appeal and dismissal of her counter claim in second appeal i.e. by Regular Civil Appeal No.12 of 2015 and Regular Civil Appeal No.13 of 2015. By a common Judgment, learned District Judge -7, Jalgaon allowed the appeals on 27-102016, thereby setting aside the Judgment and decree passed by learned Trial Court in respect of declaration of marriage as null and void and then allowed the counter claim filed by the wife for restitution of conjugal rights. Hence, these second appeals. (Parties are now referred to as 'husband and wife').
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It is further an admitted position that, the wife had earlier married on 05-05-2005 at Wakod Tq. Jamner Dist. Jalgaon.
what case both the parties had put before the Courts below. The husband contended that, wife used to raise suspicion over his character and used to insult him by giving taunts. There were disputes between wife and the mother of the husband and under those circumstance the husband started residing with wife at Kopargaon. There was a quarrel between them on 16-08-2012. The cause for the quarrel was that, she was suspecting that husband had a affair with a girl in his Karate Coaching Class. After the arrival of wife's mother, the husband was abused him publicly and then the said complaint was lodged in which he was arrested and was detained overnight. Thereafter, again there was a quarrel between the husband and wife on 02-02-2013 and during quarrel wife, in anger, made a statement that she has committed a blunder by performing second marriage with him. It was also told by her that, her first husband was very good. According to the husband he came to know about the first marriage of the wife for the first time on that day. Wife had never disclosed him about the first marriage and he was under impression that wife had never married earlier. Thereafter, he collected the information and came to know about wife's earlier marriage on 05-05-2005. Husband therefore says that,
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the wife had a living spouse at the time of his marriage with her and there was no legal divorce between the wife and her earlier husband. He had then contacted the first husband of the wife and came to know that the marriage between wife and earlier husband lasted for about 1 ½ year. Wife had conceived from him but without his consent she had aborted that child at one hospital in Jalgaon. Therefore, the husband contends that the wife had intentionally concealed the information regarding her first marriage, and therefore, his marriage with her is null and void. He, therefore, sought declaration to that effect.
used to neglect, insult and abuse as well as assault her. She admitted that, she had performed the first marriage but she contends that, as per the custom prevalent in her community, their
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marriage has been dissolved before the panchayat. It is stated that, they both i.e. husband and wife are from 'Hatkar Dhangar' community. She herself as well as her family members had informed about her first marriage and customary divorce to the husband and his family. The mediators who had mediated at the time of settlement of marriage also had knowledge about the same, and therefore, the marriage which was performed between them was 'Shiv Vivah'. A Notarized document was executed in respect of customary divorce. She has not concealed anything from the husband, and therefore, there is no question of annulment of marriage. It is also stated that, by making such false allegations regarding concealment of first marriage, the husband has taken away her gold ornaments. She was severely assaulted in front of her mother on 15-08-2012, and therefore, she was constrained to file complaint against him. The police had filed only chapter case and then released him after he executed bond for good behaviour. At that time she had gone to her parental house for a period of one month but then returned back. But thereafter she has been deserted without any reasonable ground, and therefore, she filed the counter claim for restitution of conjugal rights.
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therefore his marriage with wife is null and void.
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since last ten to fifteen years. But then the learned First Appellate court went wrong in observing that, people of Hatkar Dhangar community have accepted and relied upon the said custom of taking divorce i.e. by executing a document of stamp paper. Merely because several people had obtained such type of divorce, it cannot be said that it was a 'custom', and therefore, the reversal of the decree of annulment of marriage was wrong. The decree has been reversed on the point of limitation also by the learned First Appellate Court, however no such point was framed by him. When the husband had adduced evidence regarding knowledge about the said fact of first marriage, it ought to have been considered properly. Whatever evidence has been adduced by the wife has been taken as gospel truth, when in fact the witness who was examined i.e. D.W.7 Ramdas Kolekar, claiming to be the founder member and president of Malhar Mahasangh, Aurangbad has clearly admitted that he is not a panch from his community. Though he has clarified that, Hatkar Dhankar caste comes under Nomadic Tribe, they are continuing the divorce by executing the deed of divorce on stamp paper. His said statement cannot be accepted as law and therefore we are required to consider as to whether such customary divorce was prevalent in the community and whether it has proved. The said witness himself
has admitted that, people from his community are also taking divorce by filing petition in Court. Wife has not led any evidence
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that any panchayat was called and in presence of panchas, the said divorce had taken place and it is not her case that the notarized document has been executed only as a proof, but the main procedure as per the custom was observed in front of panchas only. Therefore, when evidence was not led by the wife to prove that there is a custom in her community to take such kind of divorce then her marriage with earlier husband subsist when the marriage with the present husband took place. The learned trial Court had assessed the evidence properly and all the points were dealt with properly by the trial Court, and therefore, there was no necessity for the First Appellate Court to reverse the said decree. It was also submitted that, no proper evidence has been adduced to prove that the husband has deserted the wife. The quarrel was the outcome of the suspicion in the mind of the wife that husband has extra marital affair. Another fact that is required to be considered is that, when the marriage between the husband and wife is null and void, husband now cannot be directed to resume cohabitation.
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of divorce. The founder member and social worker from Hatkar Dhangar community i.e. D.W.7 Ramdas Sakharam Kolekar who is the respected person from the community has categorically stated that, several spouses have obtained divorce by executing divorce deed on stamp paper, and therefore, when he was giving the information in respect of a fact from his community, the said fact has been accepted as evidence. The learned First Appellate Court has also appreciated the evidence properly on the point that the fact about divorce between the wife and fist husband was made known to
the husband prior to their marriage. It was informed to his family members as well as the mediators who took part for settlement of their marriage. Evidence to that effect has been led by the wife by examining the mediator. Therefore, in spite of knowledge, the husband has performed the marriage with the wife and under such circumstance he cannot come with a case that the marriage was got performed by playing fraud on him. He has admitted that, the marriage between him and wife was “Shiv” marriage which is the like “Gandharva” marriage. When two sons have been born out of the wed lock; now with ulterior motive the husband is coming with a case that he had no knowledge about the first marriage of the wife and want to get his marriage annulled. This shows his conduct, and therefore, interference has been rightly made by the First Appellate Court by setting aside the Judgment and decree passed by the
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learned Trial Court.
“Evidence was led showing custom among Jat Sikhs of District Sangrur, permitting dissolution of marriage by divorce through writing executed by parties. Such divorce is recognised in view of S. 29 (2) of the Hindu Marriage Act. Under such circumstance, it cannot be said that, the wife was married and not divorcee at the time of her marriage with petitioner-husband. Marriage between petitioner and respondent could not be annulled on the ground of fraud. “
(1) Whether the alleged divorce between wife and her first husband can be said to be customary divorce ?
(2) Whether the wife had not given information regarding her first marriage and alleged divorce to the husband prior to their marriage dated 15-05-2007 ?
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(4) Whether husband is entitled to get decree for annulment of marriage ?
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community. When she had come with that case, naturally the burden was on her to prove the said custom. In her crossexamination she has stated that, except the notarized document, no proceedings for divorce had taken at any other place. Important point to be noted is that, in the written statement as well as in her examination-in-chief what she has stated is that, her earlier marriage has been dissolved in front of panchas (….....R;k fookgkph lektekU; uksVjh iap Qkjdr >kysyh vkgs- eh o jktw lkgscjko ika<js gs gkVdj /kuxj ;k lektkps vlwu vkeps lektkr iap Qkjdrhl ekU;rk vkgs-) In normal parlance the words 'Panch Farkat' would give an impression that the divorce had taken place in presence of panchas. But in view of her admission and in absence of details of the names of those panchas in whose presence the divorce had taken place, there is no substance in her said statement or use of the word “Panch Farkat”. It is then required to be seen as to whether in her community there is a custom of taking divorce on notary document. The custom should be since time immemorial. The Division Bench of
this Court (Nagpur Bench) in, Sau. Shalini Dhanraj Shirsat Vs. Dhanraj Tukaram Shirsat , reported in AIR 2017 Bombay 116, has observed that,
“Custom is rule which in a particular family or a particular class of community or in a particular district has, from long usage, obtained the force of law. It must be ancient, certain and reasonable custom being in the
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derogation of general rule of law, must be construed strictly and should be established by evidence. It is also well known and well settled that the party relying on custom must allege and prove the custom on which he relies.”
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record (Exhibit 86). He in his cross examination has admitted that, he has no documentary evidence to prove that, there is custom of “Panch Farkat” in their community. The said social worker who has been examined in this case is aged 50 only and even if we consider his testimony as it is, it can be seen from his testimony that in his community some adopt the said method of getting a document executed regarding divorce and some are approaching Court. That means, he is not sure about the alleged custom. Merely by saying that, since last many years the said practice is being adopted in the said community and giving vague statements would not prove the 'custom'. In aforesaid case of Sau. Shalini Dhanraj Shirsat Vs. Dhanraj Tukaram Shirsat (Supra) the Division Bench of this Court has held that,
“The evidence in the present case shows that the wife has not led any evidence to show existence of any customary divorce prevailing in her community. No document is filed relating to the period prior to the passing of the Act. In our view, the evidence both oral and documentary is too short to prove that there was a customary divorce practice prevailing in the community. The wife has not examined any elderly person from the community who could have deposed in support of the custom prevailing for obtaining customary divorce. Though, Section 29 (2) of the Hindu Marriage Act protects customary divorce, it is obligatory on the party relying on the said custom to prove the existence of custom, that it is ancient, certain and reasonable and it
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does not oppose to the public policy.”
In that case also the wife had taken plea of execution of 'Farkatnama' by custom. Here in this case though evidence has been led by the wife, the social worker aged 50 cannot be said to be an elderly person who could have authoritatively made that statement. Though he has stated that, he is acting as a leader of the community yet he cannot be taken as an authority to say something about “custom prevalent in his community”.
“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. The custom is explanation to the general law of divorce .”
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there is a recognized custom to dissolve a marriage privately before panchas. No doubt on the basis of evidence, the Court had come to the conclusion that, it has not been proved, however what requires to be taken note of, which can be made applicable to this case is, that though case was made out that deed of divorce was executed before panchas; yet panchas were not examined, and therefore, the marriage was held to be null and void when it was contracted when the spouse was living. At the cost of repetition it can be said that, though in the written statement-cum-counter claim, the wife had come with a case that, she had taken “Panch Farkat”, she has not led any evidence by examining those panchas in whose presence the divorce was taken. On the contrary it appears that, the divorce was only on the basis of that document (Exhibit 86) which was admittedly executed before an advocate which was prepared by that advocate and it was notarized. Such document cannot severe the relationship or the marital tie. Such mode has no legal force and such practice is against the public policy. It will have to be concluded, therefore, that the wife in this case, had living spouse at the time when she performed marriage with the present petitioner on 15-05-2007 and the said earlier marriage was subsisting.
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said to be within limitation. The husband has contended and deposed that, he came to know about the fact of first marriage of his wife only when the quarrel broke between him and wife on 02-022013. He contends that, thereafter he made investigation and came to know about the other details. The wife says that, she had disclosed everything to the husband at the time of settlement of marriage. The husband obviously denied the suggestion to that effect in his cross, however it is to be noted that he has not examined anybody else to support his contention or even in contemplation of the fact that the wife would lead evidence to prove that, at the time of settlement of marriage such fact was disclosed to the husband. He admits in his cross examination that, his marriage with wife was performed in a temple in the form of “Shiv Vivah”. In fact it ought to have been extracted by the concerned Court who was recording the evidence as to what is the meaning of “Shiv Vivah”; may be by asking Court question. But it appears that, the learned First Appellate Court has tried to extract it at the time of submissions of arguments before him and it has been specifically observed that, both the learned advocates representing the respective parties submitted that the mode and ceremony of “Shiv” marriage is marriage like a marriage of “Gandharva” marriage which
generally followed in cases of second marriage of either of the spouses. That means, this fact is even admitted by the advocate
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who was representing the husband before the First Appellate Court. Independently also it is to be noted that, the wife has examined D.W.3 Devidas Arjun Patil and D.W.4 Kishor Laxman Aadhav who were present at the time of marriage. They are not related to the wife but the father of the wife was their friend. Both of them have stated that, information regarding first marriage of wife was given to the husband at the time of marriage. In the cross-examination except denial there is nothing. There was no reason to disbelieve these two persons. Therefore, taking into consideration the said admission given by the husband and the evidence that has been led by the wife in her testimony as well as by examining two witnesses on the point, it will have to be held that the wife had given knowledge about the alleged divorce between her and the first husband to him prior to the marriage. Here it is to be noted that, though the wife has not been able to prove the custom yet from the evidence regarding intimation about the said information to the husband prior to the marriage reveals that, even the husband was under the impression that the said divorce document which has been
got executed between wife and first husband, was a correct document and then he did not question the legality of the same. Therefore, the knowledge of the husband regarding first marriage of
the wife will have to be attributed to the date of his marriage, and therefore, the petition that has been filed by him for annulment of
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marriage on 01-03-2013 was beyond the period of limitation.
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cohabitation but then he has refused to take her back. Thus the conduct of the husband shows that, now he wants to get rid of the wife; so also the sons for a reason which was in fact in his knowledge, when he performed marriage with the wife but accepted the said divorce and then performed marriage. Therefore, though the wife had failed to prove the custom and she had leaving spouse when her marriage with the present petitioner had taken place, yet the petition will have to be dismissed on the ground that it is beyond period of limitation.
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interfere the decree that has been passed by the First Appellate Court. There is no merit in the present appeals and they are therefore dismissed with costs. In view of the dismissal of the appeals, the pending civil applications, stand disposed of.
(SMT. VIBHA KANKANWADI) JUDGE
vjg/-.
3 issues framed by the court
Whether the alleged divorce between the wife and her first husband constitutes a valid customary divorce under Section 29(2) of the Hindu Marriage Act.
Whether the wife had disclosed her first marriage and alleged divorce to the husband prior to their marriage.
Whether the petition for annulment was filed within the legal period of limitation.
Colour shows how this judgement treated each authority
Jasbir Singh vs. Inderjit KaurReferred¶47
Jasbir Singh Vs. Inderjit Kaur, AIR 2003 Punjab And Haryana 317 · Who else cites this
Sau. Shalini Dhanraj Shirsat vs. Dhanraj Tukaram ShirsatExplained¶62
Sau. Shalini Dhanraj Shirsat Vs. Dhanraj Tukaram Shirsat, AIR 2017 Bombay 116 · Who else cites this
Kashibai Namdeo Jadhav and Ors. vs. Yamunabai Namdeo Jadhav and Ors.Referred¶71
Kashibai Namdeo Jadhav and Ors. Vs. Yamunabai Namdeo Jadhav and Ors., 2016 (3) Bom.C.R. 42 · Who else cites this
Yamunaji H. Jadhav vs. NirmalaExplained¶71
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5 provisions across 1 enactments
Sudarshan s/o Yamaji Pandhare
Sau. Pallavi w/o Sudarshan Pandhare
VIBHA KANKANWADI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
