Second appeal against concurrent decrees granting a wife and minor daughter maintenance and partition. The High Court held that an alleged customary divorce deed contravening Section 13 of the Hindu Marriage Act is invalid, that maintenance rights of a minor cannot be relinquished, found no substantial question of law, and dismissed the appeal.
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.
S.A.No.1136 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 12.04.2024
CORAM
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
S.A.No.1136 of 2010 and
M.P.No.1 of 2010
1.Anbazhagan 2.Sampoornam
... Appellants
vs.
1.Senthamil Selvi 2.Minor.Nithya Represented by next friend and mother Senthamil selvi ... Respondents
Prayer:- Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 27.10.2009 in A.S.No.201 of 2008 passed by the Principal District Judge, Perambalur, confirming the judgment and decree dated 27.11.2007 in O.S.No.212 of 2001 passed by the Sub Judge, Ariyalur, Perambalur.
For appellants : Mr.R.Thiagarajan For respondents : Mr.P.Valliappan, Senior Counsel for Mr.G.RM.Palaniappan
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J U D G M E N T
The defendants are the appellants before this Court. The
respondents herein are the plaintiffs.
according to their litigative status as before the Trial Court.
The brief facts, which gave rise to the instant Second Appeal, are as
follows:
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obtained certain documents from the first plaintiff and that the first plaintiff, without knowing the same and under undue influence, have signed those documents. Therefore, according to plaintiff those documents will not bind upon the plaintiffs. Hence, the plaintiffs have come forward with the suit for maintenance, seeking partition in respect of the suit properties and claiming 3/8 share in favour of the second defendant.
the first plaintiff has executed a deed of divorce and also relinquishment deed by relinquishing her maintenance right from the first defendant.
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documentary evidence, has arrived at a conclusion that the customary divorce is not binding upon the plaintiffs and ultimately, found that the first plaintiff is the legally wedded wife of the first defendant. Apart from that, the Trial Court has also disbelieved the relinquishment deed, which was allegedly executed by the first plaintiff to relinquish her maintenance right and ultimately, decreed the suit as prayed for.
First Appellate Court, the First Appellate Court has also concurred with the finding of the Trial Court and dismissed the appeal.
the defendants are before this Court by way of this Second Appeal.
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counsel for the appellants that, when the first plaintiff was all along living in her paternal home, she has no right to seek partition as well as maintenance from the first defendant. Hence, they prayed to interfere with the judgment of the Courts below and also prayed to dismiss the suit.
respondents/plaintiffs would submit that the alleged deed of divorce is unknown to the Hindu Marriage Act, 1955. According to Section 13 of the Hindu Marriage Act, 1955, such alleged customary divorce has no sanctity in the eye of law. It is also contended by the learned Senior Counsel that the share claimed in the plaint are granted by Court is not in accordance with the correct calculation. Hence, contended that at the Second Appeal stage, even without prayer for correct share, the same can be granted. Therefore, it is the submission of the learned Senior Counsel while dismissing this appeal, the share of the second plaintiff is to be increased by modifying the decree of the Trial Court.
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S.A.No.1136 of 2010
made by both sides.
respondents/plaintiffs that the share of the second plaintiff has to be enhanced. Here, such argument cannot be entertained without having any factual foundation. In addition to the above aspect such finding was not challenged by way of filing any cross objection.
appellants/defendants that the first plaintiff had executed a deed of divorce and also relinquished her right to seek maintenance. It is a settled principle of law that the customary divorce cannot be accepted, unless such customs is proved that it was in existence for a long time. Apart from that, after the advent of the Hindu Marriage Act, 1955, any divorce in contravention to Section 13 of Hindu Marriage Act is not valid and binding. Therefore, the finding recorded by both the Courts below that the deed of divorce is not binding upon the first plaintiff is a well-
merited finding and therefore, this court is not inclined to interfere with the same.
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connected miscellaneous petition is closed. There shall be no order as to costs.
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Internet : Yes Index : Yes/No Speaking order/Non-speaking order apd
S.A.No.1136 of 2010
12.04.2024
To
C.KUMARAPPAN,J.
apd
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S.A.No.1136 of 2010
S.A.No.1136 of 2010
12.04.2024
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3 issues framed by the court
Whether the alleged customary divorce deed executed by the first plaintiff was valid and binding on her.
Whether a relinquishment deed could extinguish the wife's and minor daughter's right to maintenance.
Whether the second plaintiff's share could be enhanced at the second appeal stage without cross-objection.
2 provisions across 2 enactments
Anbazhagan
Sampoornam
Senthamil Selvi
Minor.Nithya represented by next friend and mother Senthamil Selvi
C.Kumarappan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
