After the Hindu Marriage Act, 1955 has come into force by virtue of Section 4, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in the Hindu Marriage Act, 1955. Section 4 gives overriding application to the provisions of the Act and in respect of any of the matters dealt with in the Act, it repeals in effect all existing laws, whether in the shape of enactments or otherwise, which are inconsistent with the Act. Section 13 of the Hindu Marriage Act, 1955, provides the grounds for divorce. Thus, there is a provision made under the Hindu Marriage Act, 1955 for divorce, and any custom relating to divorce which was prevalent in the community of which the parties belong shall cease to have any effect after the commencement of the Hindu Marriage Act. That being the position, there could not have been any divorce in a caste-panchayat. Besides this the custom as pleaded should contain essential attribute of that, it is reasonablety continued for a long period and has been observed without interruption and is certain in respect of its nature, is completely missing from the pleadings, of the custom by the appellant. It has been pleaded only that there was a divorce between the appellant and the respondent in a caste-panchayat according to the custom prevalent in caste to which the parties belong. In my opinion, this is not a sufficient pleading for the purposes of proof of the custom nor there is sufficient evidence on record to prove the essential features for establishing the custom prevalent. In view of lack of particulars and the evidence to support the custom the appellant has completely failed to prove and prove the custom prevalent in the community of the appellant and respondent, and therefore, he is not entitled to claim any protection and advantage for refusal under the custom to pay the maintenance to the wife-respondent.
2. The plaintiff/respondent's case was based on the allegations that she was legally married with the appellant. The appellant never kept her well and always used to say that she is not according to his liking and he will get the second wife. About 10-11 years back the appellant snatched away all the ornaments of Savitri Bai and sent her to her parents place where she is residing. In spite of repeated demand no maintenance had been paid to her by her husband appellant. It is further contended that the appellant husband had treated her cruelty. It is further specifically alleged that the appellant has performed two marriages after the marriage with the respondent/plaintiff. He married to Gomtibai daughter of Chittarsingh Patel and thereafter with Dhannabai daughter of Ghanshyam Patel. He has one daughter from Dhannabai. Thus, the appellant has performed marriages with two other ladies, therefore, the plaintiff/respondent has claimed maintenance from the appellant. The appellant/defendant filed his written statement denying allegations of desertion and cruelty. However, the fact of the marriage with two ladies has not been denied by the appellant/defendant in his written statement. The real bone of contention of the appellant in his written statement is that the plaintiff/respondent was his married wife upto 16.3.1972 only as on 16.3.1972 in a caste panchayat held at village Mangunwa, tehsil Patan he has given divorce to his wife Savitribai as per the caste-custom prevalent in the community and thus, thereafter there is no relationship of husband and wife remained subsisting and the appellant is not liable to pay any maintenance to the plaintiff/appellant.
3. The Counsel for the appellant has employed only the point that after the divorce according to the caste-custom dated 16.3.1972 in a caste-panchayat. which is recorded in document (Ex. D 1), there is ho relationship of husband and wife remained subsisting between the parties, and therefore, the Trial Court has committed an error in granting maintenance to the plaintiff-respondent.
4. That, the fact of the two marriages of the appellant with two ladies mentioned in the plaint is not denied by the appellant/defendant in his written statement and thus, the performance of the marriage with other two ladies stands proved. Under Section 18 of the Hindu Adoption * Maintenance Act, 1956. a Hindu wife whether married before or after the commencement of the Act is entitled to a maintenance by her husband even though she lives separately from her husband if he has another wife living, or. if he keeps a concubine in the same house in which his wife is living or--habitually resides with a concubine elsewhere. The appellant has a daughter from the marriage with Dhannabai which proves the fact that the appellant is living with Dhannabai and that entitles the respondent to claim maintenance from the appellant.
5. After the Hindu Marriage Act, 1955 has come into force by virtue of Section 4, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in the Hindu Marriage Act, 1955. Section 4 gives overriding application to the provisions of the Act and in respect of any of the matters dealt with in the Act, it repeals in effect all existing laws, whether in the shape of enactments or otherwise, which are inconsistent with the Act. Section 13 of the Hindu Marriage Act, 1955, provides the grounds for divorce. Thus, there is a provision made under the Hindu Marriage Act, 1955 for divorce, and any custom relating to divorce which was prevalent in the community of which the parties belong shall cease to have any effect after the commencement of the Hindu Marriage Act. That being the position, there could not have been any divorce in a caste-panchayat. Besides this the custom as pleaded should contain essential attribute of that, it is reasonablety continued for a long period and has been observed without interruption and is certain in respect of its nature, is completely missing from the pleadings, of the custom by the appellant. It has been pleaded only that there was a divorce between the appellant and the respondent in a caste-panchayat according to the custom prevalent in caste to which the parties belong. In my opinion, this is not a sufficient pleading for the purposes of proof of the custom nor there is sufficient evidence on record to prove the essential features for establishing the custom prevalent. In view of lack of particulars and the evidence to support the custom the appellant has completely failed to prove and prove the custom prevalent in the community of the appellant and respondent, and therefore, he is not entitled to claim any protection and advantage for refusal under the custom to pay the maintenance to the wife-respondent.
6. As the result thereof the appeal fails and is dismissed with costs.
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Madhya Pradesh High Court
Halkai vs Savitri Bai on 25 September, 1993
Equivalent citations: I (1994) DMC 45
1. Respondent/plaintiff No. 1 Savitri Bai and one Ku. Deokibai plaintiff No. 2 filed a suit against the appellant Halkai for grant of maintenance. During the pendency of the suit plaintiff No. 2 became major and married and is residing with her husband, therefore, the Trial Court had not granted maintenance to her. As there was no maintenance granted to Deokibai plaintiff No. 2 the plaintiff did not prefer appeal against that part of the order. The Trial Court has granted maintenance to Savitri Bai @ 250/- per month from 8.10.82.2. The plaintiff/respondent's case was based on the allegations that she was legally married with the appellant. The appellant never kept her well and always used to say that she is not according to his liking and he will get the second wife. About 10-11 years back the appellant snatched away all the ornaments of Savitri Bai and sent her to her parents place where she is residing. In spite of repeated demand no maintenance had been paid to her by her husband appellant. It is further contended that the appellant husband had treated her cruelty. It is further specifically alleged that the appellant has performed two marriages after the marriage with the respondent/plaintiff. He married to Gomtibai daughter of Chittarsingh Patel and thereafter with Dhannabai daughter of Ghanshyam Patel. He has one daughter from Dhannabai. Thus, the appellant has performed marriages with two other ladies, therefore, the plaintiff/respondent has claimed maintenance from the appellant. The appellant/defendant filed his written statement denying allegations of desertion and cruelty. However, the fact of the marriage with two ladies has not been denied by the appellant/defendant in his written statement. The real bone of contention of the appellant in his written statement is that the plaintiff/respondent was his married wife upto 16.3.1972 only as on 16.3.1972 in a caste panchayat held at village Mangunwa, tehsil Patan he has given divorce to his wife Savitribai as per the caste-custom prevalent in the community and thus, thereafter there is no relationship of husband and wife remained subsisting and the appellant is not liable to pay any maintenance to the plaintiff/appellant.
3. The Counsel for the appellant has employed only the point that after the divorce according to the caste-custom dated 16.3.1972 in a caste-panchayat. which is recorded in document (Ex. D 1), there is ho relationship of husband and wife remained subsisting between the parties, and therefore, the Trial Court has committed an error in granting maintenance to the plaintiff-respondent.
4. That, the fact of the two marriages of the appellant with two ladies mentioned in the plaint is not denied by the appellant/defendant in his written statement and thus, the performance of the marriage with other two ladies stands proved. Under Section 18 of the Hindu Adoption * Maintenance Act, 1956. a Hindu wife whether married before or after the commencement of the Act is entitled to a maintenance by her husband even though she lives separately from her husband if he has another wife living, or. if he keeps a concubine in the same house in which his wife is living or--habitually resides with a concubine elsewhere. The appellant has a daughter from the marriage with Dhannabai which proves the fact that the appellant is living with Dhannabai and that entitles the respondent to claim maintenance from the appellant.
5. After the Hindu Marriage Act, 1955 has come into force by virtue of Section 4, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in the Hindu Marriage Act, 1955. Section 4 gives overriding application to the provisions of the Act and in respect of any of the matters dealt with in the Act, it repeals in effect all existing laws, whether in the shape of enactments or otherwise, which are inconsistent with the Act. Section 13 of the Hindu Marriage Act, 1955, provides the grounds for divorce. Thus, there is a provision made under the Hindu Marriage Act, 1955 for divorce, and any custom relating to divorce which was prevalent in the community of which the parties belong shall cease to have any effect after the commencement of the Hindu Marriage Act. That being the position, there could not have been any divorce in a caste-panchayat. Besides this the custom as pleaded should contain essential attribute of that, it is reasonablety continued for a long period and has been observed without interruption and is certain in respect of its nature, is completely missing from the pleadings, of the custom by the appellant. It has been pleaded only that there was a divorce between the appellant and the respondent in a caste-panchayat according to the custom prevalent in caste to which the parties belong. In my opinion, this is not a sufficient pleading for the purposes of proof of the custom nor there is sufficient evidence on record to prove the essential features for establishing the custom prevalent. In view of lack of particulars and the evidence to support the custom the appellant has completely failed to prove and prove the custom prevalent in the community of the appellant and respondent, and therefore, he is not entitled to claim any protection and advantage for refusal under the custom to pay the maintenance to the wife-respondent.
6. As the result thereof the appeal fails and is dismissed with costs.
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