One important factor which has to be noticed in the present case is that the petitioner-husband himself admits that customary divorce was prevalent in their area and existed till the year 1960 or thereabouts. According to the husband custom has discontinued thereafter. Once this fact was admitted that custom was in existence then the burden shifted upon the husband to show that the custom had ceased to exist. A party is not required to prove something which the opposite side admits. The husband has admitted that the custom existed till 1960 though according to him it ceased to exist thereafter. The witnesses of the wife had given certain instances of the customs. Therefore, in my opinion the learned trial Court was right in holding that the earlier marriage between Kavita and Nand Lal had come to an end on account of the divorce by mutual consent obtained by them in accordance with the custom of the area which was applicable to them.
2. The brief facts necessary for decision of the appeal are that the parties were married on 22nd April, 1996 at Kandaghat. It is an admitted fact that prior to this marriage the wife Kavita was married to one Nand Lal and that a daughter was born out of her wedlock with Nand Lal. The ground for annulment of marriage taken by the husband was that he had been wrongly informed by the wife and her father that the wife had been validly and legally divorced from her earlier husband Nand Lal. According to the husband in fact no such divorce had taken place. His case, therefore, is that since the wife already had a living spouse from whom she had not obtained any divorce the marriage between him and the wife is void and may be annulled.
3. The respondent contested the claim petition. The main ground of contest was that she had obtained divorce according to custom from her previous husband Nand Lal. She further avers that the husband who at the relevant time was employed in the Courts at Kandaghat was residing in her father's building and was well aware of the fact that she had obtained divorce as per custom. She submits that in fact when the papers for mutual divorce were written the petitioner was present and it was only thereafter that he had married the respondent.
4. The learned trial Court came to the conclusion that the petitioner due to his own acts and conduct was estopped from filing the petition since he was aware about the previous marriage and divorce from the respondent. The trial Court also held that the customary divorce was prevalent and recognized in the area and that such customary divorce did take place between the wife and her previous husband Nand Lal. Aggrieved against this judgment dismissing his petition the husband filed the present appeal.
5. I have heard Shri Bhupender Gupta, learned Senior Counsel appearing on behalf of the husband and Ms. Ritu Chauhan, learned Counsel for the wife and have also perused the entire record.
The main grounds raised by Mr. Bhupender Gupta, learned senior Counsel are that the custom has not been pleaded or proved as required under law. He submits that a party must plead and prove that the custom is ancient, continuous and its origins are lost in the mist of antiquity. He further submits that the custom, if any, was applicable only to the lower caste and not to Rajputs. He further submits that the wife has not proved any codified custom nor has proved any instances of such divorce among people within her close relationships or the larger village family relationship to show that such a custom existed. He further submits that even the so called deed is no divorce deed in the eyes of law and in fact there is no recital in the said deed also that the deed has been drawn according to some custom.
6. On the other hand Ms. Ritu Chauhan, learned Counsel submits that custom has been pleaded in the reply. She further submits that two witnesses have been produced to prove the same and to show that the custom did exist amongst the upper caste also. She further submits that in fact the husband himself has admitted the custom though according to him the custom cease to exist after 1960. Further she submits that the conduct of the husband is such that it totally disentitles him to a decree of annulment of marriage.
7. The wife in support of her plea that custom existed has produced RW-1 Shiv Dutt. He in fact is the Pundit who conducted the marriage of the parties in April, 1996. He states that Kavita had got a divorce by mutual consent from her previous husband Nand Lal. He also states that petitioner Chain Singh was well aware of this fact. According to him such divorce is recognized as per the custom of their area amongst Kanait Rajputs. He has stated that a number of divorces have been conducted by mutual consent in accordance with such custom prevalent amongst the people of the area belonging to the upper castes. He has given two instances of such divorces of Ram Krishan who was a Brahmin and of one Krishan Dutt.
8. The respondent also examined RW-2 Narayan Singh Thakur who is a member of the Block Samiti and was earlier Pradhan of the Panchayat. According to him also, divorce by mutual consent, is recognized as per the custom of their area. He states that the same custom is applicable to the Jaunaji area to which the husband belongs. He also submits that a number of such divorces by mutual consent were done in front of the Panchayat when he was the Pradhan thereof.
9. The previous husband of the wife i.e. Nand Lal also admitted that the parties had obtained customary divorce by mutual consent as per writing Ext. RW-3/2.
10. The husband in rebuttal appeared as his own witness. He in his examination-in-chief admits that his father-in-law had told him that Kavita had obtained divorce from her previous husband. According to him customary divorce by mutual consent is not recognized amongst Rajputs. In cross-examination he admits that till 1960 such custom was in existence and divorce by mutual consent was recognized by such custom. According to him at that time the 'lagan' used to go to the King but since now the system of paying the 'lagan' had stopped the system of obtaining customary divorce by 'reef had also come to an end.
11. The main emphasis of Mr. Bhupender Gupta, learned senior Counsel was that the allegations of custom should be pleaded in detail to show that the custom has been in existence for a reasonably long period and is continuing since then. He submits that due to absence of such pleading the wife cannot be permitted to prove the same. In support of his contention he has relied upon Halkai v. Savitri Bai 1 (1994) DMC 45 and Asha Rani v. Gulshan Kumar, AIR 1995 Punjab and Haryana 287. In the latter case a single Judge of the Punjab and Haryana High Court held as follows:
10...I have discussed the evidence adduced by the appellant about the alleged customary mode of dissolution of marriage. Appraising that evidence, it is rightly held by the trial Court that neither the existence of the custom nor the fact of divorce is established. Since the appellant pleaded a custom of dissolution which is altogether derogatory to general Hindu Law the burden was on her to prove the existence and the incidents of the alleged custom which must measure up to the essentials of a valid custom and be ancient, certain and reasonable. Custom cannot be extended by analogy nor one custom deduced from another.
12. He also relied upon the judgment of the Apex Court in Yamanaji H. Jadhav v. Nirmala , wherein the Apex Court held that custom permitting divorce against the provisions of Hindu Marriage Act being an exception to the general law of divorce ought to have been especially pleaded and established by the parties propounding such custom. It held that, therefore, an issue in this regard should have been framed and parties should have been permitted to lead evidence. The case was remanded to the trial Court after making said observations.
13. In the present case, issue in this regard was specifically framed, which reads as follows:
5. Whether the respondent and Nand Lal were legally divorced on 22.2.1995 as per custom prevailing to the community?....OPR.
14. No doubt it is true that the pleading with regard to custom in the written statement is not very happily worded. However, a clear case has been set-up in the reply that on 22.2.1995 the respondent (Kavita) and Nand Lal were divorced as per custom prevalent in their community and papers in this regard were prepared and also that the present petitioner was aware of all the happenings and was present when the papers with regard to divorce were prepared.
15. One important factor which has to be noticed in the present case is that the petitioner-husband himself admits that customary divorce was prevalent in their area and existed till the year 1960 or thereabouts. According to the husband custom has discontinued thereafter. Once this fact was admitted that custom was in existence then the burden shifted upon the husband to show that the custom had ceased to exist. A party is not required to prove something which the opposite side admits. The husband has admitted that the custom existed till 1960 though according to him it ceased to exist thereafter. The witnesses of the wife had given certain instances of the customs. Therefore, in my opinion the learned trial Court was right in holding that the earlier marriage between Kavita and Nand Lal had come to an end on account of the divorce by mutual consent obtained by them in accordance with the custom of the area which was applicable to them.
16. Another ground which militates against the plea of the husband is that from the evidence discussed above it is apparent that the husband was well aware of the fact that the wife had obtained a customary divorce from her earlier husband. In fact the wife and her witnesses Shiv Dutt, RW-1 and Manmohan Singh, RW-4 who scribed the document have clearly stated that Chain Singh was present when the divorce deed was prepared. This assertion has been made in the reply also. The husband has not even said a word that he was not present when the divorce deed was executed. The husband admittedly knew that the wife had been married earlier. It was his duty to inquire about the validity and legality of her divorce. If he was satisfied with the customary divorce at the stage of marriage he cannot now turn around and say that the divorce was illegal. The marriage between the parties took place in April, 1996 and the petition was filed on 27.3.1997, almost after one year. It is thus clear that there are some other reasons for filing the petition. The petitioner was fully aware to the earlier marriage of his wife and in my opinion he was also aware about the fact that she had obtained divorce as per custom. He was satisfied with the validity of the customary divorce at that stage and, therefore, cannot now challenge the same.
17. In view of the above discussion, I am of the considered opinion that the learned trial Court has rightly decided the case and no interference is warranted in appeal. The appeal is accordingly dismissed with no order as to costs.
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Himachal Pradesh High Court
Chain Singh Verma vs Smt. Kavita on 15 December, 2005
Equivalent citations: 2006 (3) ShimLC 206
1. This appeal under Section 28 of the Hindu Marriage Act is directed against the judgment and decree passed by the learned District Judge, Solan in Hindu Marriage Petition No. 15-S/3 of 97, decided on 25.10.1999 whereby the petition filed by the husband for annulment of marriage has been dismissed.2. The brief facts necessary for decision of the appeal are that the parties were married on 22nd April, 1996 at Kandaghat. It is an admitted fact that prior to this marriage the wife Kavita was married to one Nand Lal and that a daughter was born out of her wedlock with Nand Lal. The ground for annulment of marriage taken by the husband was that he had been wrongly informed by the wife and her father that the wife had been validly and legally divorced from her earlier husband Nand Lal. According to the husband in fact no such divorce had taken place. His case, therefore, is that since the wife already had a living spouse from whom she had not obtained any divorce the marriage between him and the wife is void and may be annulled.
3. The respondent contested the claim petition. The main ground of contest was that she had obtained divorce according to custom from her previous husband Nand Lal. She further avers that the husband who at the relevant time was employed in the Courts at Kandaghat was residing in her father's building and was well aware of the fact that she had obtained divorce as per custom. She submits that in fact when the papers for mutual divorce were written the petitioner was present and it was only thereafter that he had married the respondent.
4. The learned trial Court came to the conclusion that the petitioner due to his own acts and conduct was estopped from filing the petition since he was aware about the previous marriage and divorce from the respondent. The trial Court also held that the customary divorce was prevalent and recognized in the area and that such customary divorce did take place between the wife and her previous husband Nand Lal. Aggrieved against this judgment dismissing his petition the husband filed the present appeal.
5. I have heard Shri Bhupender Gupta, learned Senior Counsel appearing on behalf of the husband and Ms. Ritu Chauhan, learned Counsel for the wife and have also perused the entire record.
The main grounds raised by Mr. Bhupender Gupta, learned senior Counsel are that the custom has not been pleaded or proved as required under law. He submits that a party must plead and prove that the custom is ancient, continuous and its origins are lost in the mist of antiquity. He further submits that the custom, if any, was applicable only to the lower caste and not to Rajputs. He further submits that the wife has not proved any codified custom nor has proved any instances of such divorce among people within her close relationships or the larger village family relationship to show that such a custom existed. He further submits that even the so called deed is no divorce deed in the eyes of law and in fact there is no recital in the said deed also that the deed has been drawn according to some custom.
6. On the other hand Ms. Ritu Chauhan, learned Counsel submits that custom has been pleaded in the reply. She further submits that two witnesses have been produced to prove the same and to show that the custom did exist amongst the upper caste also. She further submits that in fact the husband himself has admitted the custom though according to him the custom cease to exist after 1960. Further she submits that the conduct of the husband is such that it totally disentitles him to a decree of annulment of marriage.
7. The wife in support of her plea that custom existed has produced RW-1 Shiv Dutt. He in fact is the Pundit who conducted the marriage of the parties in April, 1996. He states that Kavita had got a divorce by mutual consent from her previous husband Nand Lal. He also states that petitioner Chain Singh was well aware of this fact. According to him such divorce is recognized as per the custom of their area amongst Kanait Rajputs. He has stated that a number of divorces have been conducted by mutual consent in accordance with such custom prevalent amongst the people of the area belonging to the upper castes. He has given two instances of such divorces of Ram Krishan who was a Brahmin and of one Krishan Dutt.
8. The respondent also examined RW-2 Narayan Singh Thakur who is a member of the Block Samiti and was earlier Pradhan of the Panchayat. According to him also, divorce by mutual consent, is recognized as per the custom of their area. He states that the same custom is applicable to the Jaunaji area to which the husband belongs. He also submits that a number of such divorces by mutual consent were done in front of the Panchayat when he was the Pradhan thereof.
9. The previous husband of the wife i.e. Nand Lal also admitted that the parties had obtained customary divorce by mutual consent as per writing Ext. RW-3/2.
10. The husband in rebuttal appeared as his own witness. He in his examination-in-chief admits that his father-in-law had told him that Kavita had obtained divorce from her previous husband. According to him customary divorce by mutual consent is not recognized amongst Rajputs. In cross-examination he admits that till 1960 such custom was in existence and divorce by mutual consent was recognized by such custom. According to him at that time the 'lagan' used to go to the King but since now the system of paying the 'lagan' had stopped the system of obtaining customary divorce by 'reef had also come to an end.
11. The main emphasis of Mr. Bhupender Gupta, learned senior Counsel was that the allegations of custom should be pleaded in detail to show that the custom has been in existence for a reasonably long period and is continuing since then. He submits that due to absence of such pleading the wife cannot be permitted to prove the same. In support of his contention he has relied upon Halkai v. Savitri Bai 1 (1994) DMC 45 and Asha Rani v. Gulshan Kumar, AIR 1995 Punjab and Haryana 287. In the latter case a single Judge of the Punjab and Haryana High Court held as follows:
10...I have discussed the evidence adduced by the appellant about the alleged customary mode of dissolution of marriage. Appraising that evidence, it is rightly held by the trial Court that neither the existence of the custom nor the fact of divorce is established. Since the appellant pleaded a custom of dissolution which is altogether derogatory to general Hindu Law the burden was on her to prove the existence and the incidents of the alleged custom which must measure up to the essentials of a valid custom and be ancient, certain and reasonable. Custom cannot be extended by analogy nor one custom deduced from another.
12. He also relied upon the judgment of the Apex Court in Yamanaji H. Jadhav v. Nirmala , wherein the Apex Court held that custom permitting divorce against the provisions of Hindu Marriage Act being an exception to the general law of divorce ought to have been especially pleaded and established by the parties propounding such custom. It held that, therefore, an issue in this regard should have been framed and parties should have been permitted to lead evidence. The case was remanded to the trial Court after making said observations.
13. In the present case, issue in this regard was specifically framed, which reads as follows:
5. Whether the respondent and Nand Lal were legally divorced on 22.2.1995 as per custom prevailing to the community?....OPR.
14. No doubt it is true that the pleading with regard to custom in the written statement is not very happily worded. However, a clear case has been set-up in the reply that on 22.2.1995 the respondent (Kavita) and Nand Lal were divorced as per custom prevalent in their community and papers in this regard were prepared and also that the present petitioner was aware of all the happenings and was present when the papers with regard to divorce were prepared.
15. One important factor which has to be noticed in the present case is that the petitioner-husband himself admits that customary divorce was prevalent in their area and existed till the year 1960 or thereabouts. According to the husband custom has discontinued thereafter. Once this fact was admitted that custom was in existence then the burden shifted upon the husband to show that the custom had ceased to exist. A party is not required to prove something which the opposite side admits. The husband has admitted that the custom existed till 1960 though according to him it ceased to exist thereafter. The witnesses of the wife had given certain instances of the customs. Therefore, in my opinion the learned trial Court was right in holding that the earlier marriage between Kavita and Nand Lal had come to an end on account of the divorce by mutual consent obtained by them in accordance with the custom of the area which was applicable to them.
16. Another ground which militates against the plea of the husband is that from the evidence discussed above it is apparent that the husband was well aware of the fact that the wife had obtained a customary divorce from her earlier husband. In fact the wife and her witnesses Shiv Dutt, RW-1 and Manmohan Singh, RW-4 who scribed the document have clearly stated that Chain Singh was present when the divorce deed was prepared. This assertion has been made in the reply also. The husband has not even said a word that he was not present when the divorce deed was executed. The husband admittedly knew that the wife had been married earlier. It was his duty to inquire about the validity and legality of her divorce. If he was satisfied with the customary divorce at the stage of marriage he cannot now turn around and say that the divorce was illegal. The marriage between the parties took place in April, 1996 and the petition was filed on 27.3.1997, almost after one year. It is thus clear that there are some other reasons for filing the petition. The petitioner was fully aware to the earlier marriage of his wife and in my opinion he was also aware about the fact that she had obtained divorce as per custom. He was satisfied with the validity of the customary divorce at that stage and, therefore, cannot now challenge the same.
17. In view of the above discussion, I am of the considered opinion that the learned trial Court has rightly decided the case and no interference is warranted in appeal. The appeal is accordingly dismissed with no order as to costs.
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