'whether under Section 65 of the Indian Evidence Act, 1872, secondary
evidence in the form of oral evidence can be led or considered to prove
the contents of the document allegedly lost' is concerned, in my view,
before allowing production of secondary evidence, it must be established
that the original document is lost or destroyed or is being deliberately
withheld by the party. Supreme Court in the case of Rakesh Mohindra
Vs.Anita Beri and Ors., reported in 2016 ALL SCR 1 has held that the
party who seeks to lead secondary evidence has to lay down the factual
foundation to establish the right to give secondary evidence where the
original document cannot be produced. It is held that neither mere
admission of a document in evidence amounts to its proof nor mere
making of an exhibit of a document dispenses with its proof, which is
otherwise required to be done in accordance with law.
79. It is held by the Supreme Court that the pre-conditions for
leading secondary evidence are that such original documents could
not be produced by the party relying upon such documents in spite of
best efforts, unable to produce the same which is beyond their control.
The party who seeks to produce secondary evidence must establish for
the non-production of primary evidence. Unless, it is established that
the original document is lost or destroyed or is being deliberately
withheld by the party in respect of that document sought to be used,
secondary evidence in respect of that document cannot be accepted. In
the facts of this case, the plaintiffs could not prove before the learned
trial Judge that any of the alleged divorce deed was executed and lost
and could not have produced and thus they were entitled to lead
secondary evidence under Section 65 of the Indian Evidence Act, 1872.
In my view, the party who seeks to lead secondary evidence has to
establish that such party is not able to produce the primary document
which beyond his control or that the same is lost or destroyed or is
being deliberately withheld by the party in respect of that document
sought to be used. Unless these mandatory conditions of Section 65 of
the Indian Evidence Act, 1872 are complied with, such party cannot be
allowed to lead secondary evidence. The substantial question of law no.(i)
is accordingly answered in negative in the facts of this case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.108 OF 1993
Kashibai Namdeo Jadhav
Versus
Yamunabai w/o Namdeo Jadhav
CORAM : R.D. DHANUKA, J.
PRONOUNCED ON : 25th February 2016
Citation:AIR 2016 (NOC)387 BOM
By this second appeal filed under Section 100 of the Code
of Civil Procedure, 1908, the appellants (original defendants) have
impugned the order and judgment dated 3rd September 1992 passed by
the III Additional District Judge, Solapur allowing the appeal filed by
the original plaintiffs and setting aside the decree passed by the learned
trial Judge dismissing the suit for a decree for partition and separate
possession.
2. The original plaintiffs had filed a suit for declaration and
perpetual injunction and in the alternative for partition and separate
possession of share in certain agricultural lands. For the sake of
convenience, the parties to the present proceedings are described as
they were described in the proceedings before the learned trial Judge
in the later part of the judgment. Some of the relevant facts for the
purpose of deciding this second appeal are as under :-
3. The present dispute pertains to the lands 783, 789, 790/1,
792/2, 855, 906, 911/1, 911/2 and 777 all situated at Waphale, Taluka
Mohol, District Solapur. It was the case of the plaintiffs that the suit
lands were ancestral properties of late Namdeo Sambha Jadhav. It was
alleged by the plaintiffs that the plaintiff no.1-Yamunabai was the legally
wedded wife of Namdeo Sambha Jadhav. It was alleged that the plaintiff
nos.2 to 4 are the children begotten to the said Yamunabai from Namdeo
S. Jadhav. It was the case of the plaintiffs that the defendant no.1-
Kashibai was the first wife of Namdeo S. Jadhav and divorce took place
between Namdeo S. Jadhav and Kashibai, defendant no.1 herein on 7th
September 1963 under an alleged Deed of Divorce. The defendant nos.2
and 3 are the children of Namdeo Sambha Jadhav begotten from his
first wife Kashibai Namdeo Jadhav. It was the case of the plaintiffs that
the defendant no.1 was suffering from black leprosy. In the result,
Namdeo divorced the defendant no.1 in the year 1963 according to the
customs prevailing in Maratha community to which the parties belonged
to. It was the case of the plaintiffs that such type of divorce by mutual
consent was permissible according to the customs prevailing in Maratha
community at the relevant time.
4. It was the case of the plaintiffs that after taking divorce
from the defendant no.1, the said Namdeo S. Jadhav married with
plaintiff no.1 Yamunabai. According to the plaintiffs, there was a partition
effected between the plaintiffs and the defendants and the lands described
in para 1B of the plaint were given to the plaintiffs. Rest of the suit lands
were given to the defendant nos.2 and 3. It was the case of the plaintiffs
that since Kashibai had already taken divorce from the said Namdeo S.
Jadhav, she could not get any share in the suit properties.
5. The plaintiffs accordingly filed a suit for declaration and
perpetual injunction and in the alternative for partition and separate
possession. The said suit was resisted by the defendants by filing a
written statement. The defendants denied that the plaintiff no.1 was
married with late Namdeo Jadhav and also denied that the plaintiff nos.2
to 4 were the legitimate children of late Namdeo Jadhav. The defendants
also denied that there was any divorce between the defendant no.1 and
late Namdeo Jadhav or that the plaintiffs lived with the said late Namdeo
Jadhav. It was denied that the said Namdeo Jadhav effected any partition
of the suit lands between the plaintiffs and defendants in or about 1967 or
that the suit lands as described in paragraph 1(b) of the plaint were
allotted by the said Namdeo Jadhav to the plaintiffs. The defendants also
made various allegations about the character of the plaintiff no.1 in the
written statement. Insofar as the plaintiff nos.2 to 4 are concerned, it was
alleged that they were born to the plaintiff no1 from one Waman Chavan
and some other person. The defendants denied that the plaintiffs had any
interest of any nature whatsoever in the suit lands and opposed the reliefs
prayed by the plaintiffs.
6. The learned trial Judge framed seven issues which are
extracted as under with concluding finding recorded of each of the issue.
They are as under :-
Issues Findings
1. Do plaintiffs prove that, they got suit property
mentioned in Para 1-B of plaint in the petition
in the year 1967 ? No
2. Do plaintiffs prove that, plaintiff no.1 is legally
wedded wife of Deceased Namdeo and
plaintiff nos.2 to 4 are the legitimate children
of plaintiff No.1 from deceased Namdeo ? No
3. Do plaintiffs prove their title to suit property
mentioned in Para 1-B of plaint ? No
4. Do they further prove their lawful possession
over the suit property on the date of
institution of suit ? No
5. Whether it is just to grant discretionary relief
of declaration and injunction in favour of
plaintiffs ? No
6. Are plaintiffs entitled in the alternative to
claim partition of the suit property mentioned
in Para 1(A) and 1(B) of plaint ? No
If yes, what is their share ?
7. What decree and order ? See order below
7. On behalf of the plaintiffs, the plaintiff no.1 examined
herself as one of the witness as PW-1. The plaintiffs also examined other
four witnesses viz. Dattatraya Atre (PW-2), Ambadas Jagdale (PW-3),
Namdeo Chavan (PW-4), and Babu Parve (PW-5). The plaintiffs also
produced various documentary evidence before the learned trial Judge.
On behalf of the defendants, the defendant no.1 examined herself as
(DW-1) and also produced various documentary evidence.
8. The learned trial Judge recorded that it was an admitted
position that the suit lands were ancestral properties of late Namdeo
Jadhav. The said Namdeo Jadhav died on or before 3rd December, 1974.
The plaintiff no.1 was admittedly the mother of the plaintiff nos.2 to 4
and was admittedly married to one late Waman Chavan, who earlier
resided at the same village. It was also an admitted position that the
defendant no.1 was the first wife of late Namdeo Jadhav and was the
mother of the defendant nos.2 & 3.
9. Insofar as the issue whether the plaintiff no.1 was a legally
wedded wife of late Namdeo Jadhav or not is concerned, the learned trial
Judge held that the plaintiffs had not pleaded that there was divorce
between the plaintiff no.1 and her first husband Waman Chavan in the
plaint. The learned trial Judge held that the plaintiffs had tried to suppress
relevant facts in their plaint so far as the status of the plaintiff no.1 was
concerned. It is held that since the plaintiffs had not pleaded that the
plaintiff no.1 had divorces her first wife before marrying with Namdeo
Jadhav, the plaintiffs could not be allowed to prove that there was a
divorce between the plaintiff no.1 and her first husband in absence of any
such pleading.
10. The learned trial Judge also held that the plaintiffs had not
given any particulars of the day, date of month, season or even the year
when she had alleged to have divorced her first husband. The divorce
deed was not placed on record. It was the case of the plaintiffs that the
said alleged divorce deed between the plaintiff no.1 and Waman Chavan
was lost before about 10 to 20 years. The learned trial Judge held that the
said stand of the plaintiffs appeared to be unnatural and unreliable.
11. Before the learned trial Judge the plaintiffs produced
certified copies of the deposition of the plaintiff no.1 in R.C.S. No.121 of
1966 at Exhibit 69. The learned trial Judge held that in the said evidence
marked at Exhibit C-69, the plaintiffs had deposed on oath that the
divorce deed was in her possession. The said deposition was recorded on
20th January, 1975. The learned trial Judge has accordingly held that the
plaintiff no.1 had contradicted herself on the point of loss of the divorce
deed before the learned trial Judge and was not stating the truth about the
alleged divorce with Waman Chavan. The learned trial Judge accordingly
recorded a finding that the evidence of the plaintiff no.1 about the divorce
between herself and Waman Chavan appearing highly unnatural and
improbable. It is also held that the evidence of the plaintiff no.1 was not
wholly reliable evidence and her evidence could not be relied unless there
was substantial corroboration.
12. Insofar as the evidence of PW-2, who had alleged to have
sold the stamp papers to the plaintiff no.1 and to Waman Chavan on 12th
June, 1963 is concerned, it is held by the learned trial Judge that the
evidence of the said witness PW-2 did not show that the plaintiff no.1 and
Waman Chavan had divorced each other even if it was assumed that they
had purchased the stamp paper on 12th June, 1963. The said witness had
clearly admitted that he did not know the purchaser of the stamps
personally. It is held that the identity of the purchaser of the stamp paper
was thus not established by the evidence of Mr.Dattatraya Atre (PW-2). It
is held that the evidence of the said witness PW-2 thus did not assist the
case of the plaintiff no.1.
13. Insofar as the evidence of Mr.Babu Parve (PW-5) is
concerned, the said witness had deposed that he was the witness to the
divorce deed between the plaintiff no.1 and Waman Chavan. He further
stated that one Mr.Gaffar Saheb was subscriber of the divorce deed. The
learned trial Judge held that if Mr.Babu Parve was the attesting witness to
the divorce deed in question, the plaintiff no.1 should have stated that fact
in her evidence which crucial part of evidence which she failed to state.
14. The Lower Appellate Court has held that even if the children
were born in view of the fact that the man and woman had lived
together as husband and wife for sufficiently long time and were treated
as husband and wife by friends, relatives and neighbors and there is
presumption in favour of their marriage as per Sections 50 and 114 of
the Indian Evidence Act, 1872, such presumption of law in favour of
marriage and legitimacy is not to be repelled lightly by mere
circumstance of probabilities. The evidence should be strong, satisfactory
and conclusive.
15. In so far as the Divorce Deed dated 7th September 1963
alleged to have been executed between Namdeo and his first wife
Kashibai is concerned, it is held by the Lower Appellate Court that the
said Namdeo as well as Kashibai were illiterate and it was thus the duty
of the scribe to read over the contents to both of them which was not
done and thus the said divorce deed is not proved as per law. The Lower
Appellate Court also disbelieved the evidence of Mr.Ambadas (PW-3).
In so far as the issue as to whether there was a custom in the Maratha
Community to take such type of divorce in presence of panchas is
concerned, the Lower Appellate Court considered the oral evidence of
both the parties and held that Mr.Kasture, who was one of the witnesses
examined by the plaintiffs, in his cross-examination admitted that he did
not witness any other divorce of Maratha Community. The Lower
Appellate Court has held that the presumption of marriage in favour of
the plaintiff no.1 as well as the presumption of legitimacy in favour of
the plaintiff nos. 2 to 4 is also strengthened on account of evidence led
by Mr.Babu Parve (PW-5) who was alleged to be a witness to the
marriage between the plaintiff no.1 and Namdeo.
16. The Lower Appellate Court has held that there was a
divorce between the plaintiff no.1 and her first husband Waman Chavan.
The Lower Appellate Court has held that it was not mentioned by the
plaintiffs in their plaint about the first marriage of the plaintiff no.1
with Waman Chavan and that Waman Chavan had given her divorce.
The Lower Appellate Court has held that the plaintiff no.1 had proved
her divorce from her first husband Waman Chavan. Accordingly, it is
held that there was a presumption of marriage in favour of the plaintiff
no.1 with Namdeo Jadhav and also presumption of legitimacy in
favour of plaintiff nos.2 to 4.
17. In so far as the issue whether there was any pleading in the
plaint filed by the plaintiffs about the first marriage of the plaintiff no.1
with Waman Chavan and whether Waman Chavan had given her divorce
or not is concerned, it is held by the Lower Appellate Court that it was
stated in the plaint that the marriage of the plaintiff no.1 with Namdeo
Jadhav was legal and proper and out of the said wedlock, the plaintiff
nos.2 to 4 were born and it was sufficient to decree the suit based on
such facts pleaded by her. It is held that merely because the plaintiff
no.1 did not state about her first marriage with Waman Chavan and that
Waman Chavan had given her divorce, in absence of such statement in
the plaint, the suit should not be dismissed, as otherwise the defendants
would have brought on record about such marriage of Yamunabai with
Waman Chavan. It is held that the plaintiff no.1 had proved her marriage
with her first husband.
18. The Lower Appellate Court has held that there was ample
evidence to show that Namdeo Jadhav had divorced his first wife
Kashibai and there was no reason to discard the evidence of an
independent person. It is held that the divorce deed between the plaintiff
no.1 Yamunabai and Waman Chavan was lost. The Lower Appellate
Court accordingly allowed the appeal filed by the original plaintiffs and
has set aside the order passed by the learned trial Judge and decreed the
suit filed by the original plaintiffs.
19. Mr.Deshmukh, learned counsel appearing for the appellants
(original defendants) invited my attention to the pleadings, oral evidence
led by the parties and also the findings recorded by both the Courts
below. It is submitted by the learned counsel that there was no pleading
in the plaint filed by the plaintiff no.1 about her marriage with Waman
Chavan and that Waman Chavan had divorced her before she had
alleged to have married with Namdeo Jadhav. He submits that the
plaintiffs thus could not have been permitted to lead oral evidence
without any pleadings to that effect. He submits that the plaintiffs also
did not prove that Namdeo Jadhav had divorced his first wife Kashibai
and after such divorce between Namdeo and Kashibai, the plaintiff no.1
had married with Namdeo Jadhav.
20. It is submitted that merely because three children were
begotten out of the relationship between the plaintiff no.1 and Namdeo,
there cannot be a presumption drawn that there was a divorce between
the plaintiff no.1 and Waman Chavan and also that there was a divorce
between Namdeo and Kashibai. He submits that in such a situation,
plaintiff nos.2 to 4 could have claimed share only in case of self-acquired
properties of Namdeo and could not make any claim in the ancestral
properties of the said Namdeo. He submits that admittedly, the properties
which were subject matter of the suit were ancestral properties as pleaded
in the plaint itself. He submits that both the Courts below have not
accepted that there was a partition of the properties.
21. It is submitted by the learned counsel for the defendants that
under the provisions of the Hindu Marriage Act, 1955, the divorce can
be granted only by a decree of a competent Court unless the customary
divorce is proved. He submits that unless a specific case about prevailing
customary divorce is pleaded and proved, no presumption can be drawn
that there was a divorce between the man and woman. In support of this
submission, learned counsel for the appellants placed reliance on the
judgment of the Supreme Court in the case of Yamunaji H. Jadhav Vs.
Nirmala, reported in (2002) 2 SCC 637 and in particular paragraph 7
thereof. In support of this submission, learned counsel also invited my
attention to the averments made in the plaint and also to the oral
evidence of five witnesses examined by the plaintiffs on the issue of
customary divorce. He submits that the plaintiffs have failed to plead
and prove the customary divorce alleged to have been prevailed in
Maratha Community.
22. It is submitted that the plaintiffs had failed to prove the
marriage of plaintiff no.1 with Waman Chavan and also alleged divorce
with him. The plaintiffs had neither pleaded about the divorce of the
plaintiff no.1 with Waman Chavan nor proved the same. The plaintiffs
had also neither pleaded about the divorce between the Namdeo and
Kashibai nor proved whether the same was according to any alleged
prevailing customs in the Maratha Community or otherwise. He submits
that admittedly, in the written statement filed by the defendants, the
defendants had denied the divorce of the defendant no.1 with Namdeo
Jadhav. The onus was thus on the plaintiffs to prove that there was a
divorce between Namdeo and the defendant no.1 before the plaintiff
no.1 had alleged to have married with Namdeo Jadhav.
23. In so far as various findings recorded by the Lower
Appellate Court are concerned, it is submitted by the learned counsel for
the defendants that the findings recorded by the Lower Appellate Court
in favour of the original plaintiffs are totally contrary to the pleadings
filed by the plaintiffs and the evidence led. The Lower Appellate Court
also overlooked the fact that the evidence led by the plaintiffs could not
have been considered since the same was beyond the pleadings filed
by the plaintiffs.
24. Learned counsel for the appellants also placed reliance on
the judgment of this Court in the case of Shantaram Tukaram Patil &
Anr. Vs Dagubai Tukaram Patil & Ors., reported in (1987) Mh L.J. 179
and in particular paragraph 27 thereof in support of the submission that
legitimate children could claim share only in the self-acquired properties
and not in the ancestral properties. Reliance is also placed on the
judgment of the Supreme Court in the case of Revanasiddapa &
Anr.Vs.Mallikarjun & Ors., reported in (2011) 11 SCC 1 and more
particularly paragraphs 12 to 14, 29, 37 and 38 thereof.
25. Learned counsel for the defendants also placed reliance on
the judgment of the Supreme Court in the case of Subramani Vs.
M.Chandralekha, reported in (2005) 9 SCC 407 and more particularly
paragraphs 9, 10, 15 and 29 thereof. Reliance is also placed on the
judgment of the Supreme Court in the case of Shakuntalabai and Anr.
vs. L.V. Kulkarni and Anr., reported in (1989) 2 SCC 526 and more
particularly paragraphs 5, 19 to 21 and 26 thereof.
26. It is submitted that even the witnesses examined by the
plaintiffs were not eye-witnesses and had failed to give any other instance
of alleged customary divorce or that admittedly similar divorce had
taken place in the same community in the same village. He submits that
each of the witnesses examined by the plaintiffs were totally unreliable
and had no personal knowledge.
27. Mr.Mandlik, learned counsel appearing for the respondents
(original plaintiffs), on the other hand, invited my attention to various
pleadings, oral evidence and the findings recorded by both the Courts
below. He submits that the learned trial Judge has totally overlooked the
evidence of the witnesses led by the plaintiffs and rendered erroneous
findings. He heavily placed reliance on the findings of the Lower
Appellate Court on each of the issues in support of his submission that
the plaintiffs had not only proved the divorce of the plaintiff no.1 with
Waman Chavan but also proved the divorce of defendant no.1 with
Mr.Namdeo and thereafter, the marriage of the plaintiff no.1 with
Namdeo. He submits that the plaintiffs had also proved with the
assistance of five witnesses examined by them about prevailing customs
in the Maratha Community which permitted divorce by executing a
divorce deed in writing before panchas.
28. Learned counsel for the plaintiffs also invited my attention
to some portion of the oral evidence of the witnesses examined by the
plaintiffs. Learned counsel for the plaintiffs placed reliance on the
judgment of the Supreme Court in the case of Badri Prasad vs. Dy.
Director of Consolidation and Ors., reported in AIR 1978 SC 1557,
judgment of this Court in the case of Ningu Vithu Bamane & Ors. Vs.
Sadashiv Ningu Bamane & Ors., reported in (1986) Mh.L.J. 186 and
the judgment of the Supreme Court in the case of Union of India (UOI)
vs. Moksh Builders and Financiers Ltd. and Ors., reported in AIR 1977
SC 409 and would submit that since the plaintiff no.1 had stayed with
Namdeo Jadhav for a longer period and three children were begotten out
of the said relationship, it was proved that the plaintiff no.1 was married
to Namdeo Jadhav.
29. It is submitted that the presumption of marriage between
Namdeo and the plaintiff no.1 would presuppose that there was a valid
divorce between the plaintiff no.1 and Waman Chavan and also that there
was a divorce between Namdeo and defendant no.1 Kashibai. He submits
that the Court has to draw a presumption about the valid divorce between
the earlier spouse with the party contracting a marriage before drawing
a presumption of valid marriage between those parties based on their
cohabitation for long time. It is submitted that the defendants had
admitted that the plaintiff nos.2 to 4 were step brothers and sisters of the
defendant nos.2 & 3, and thus there was no need to lead additional
evidence by the plaintiffs to prove their status as legitimate children of
Namdeo Jadhav.
30. Mr.Deshmukh, learned counsel for the defendants in
rejoinder submits that the presumption of marriage cannot be extended
to the factum of divorce according to the alleged customs prevailing on
the date of divorce. He submits that the plea of divorce has to be specific
and has to be strictly proved and no presumption can be drawn in
respect of the factum of divorce. He submits that even if, divorce deed
was executed, unless prevailing custom of obtaining divorce by execution
of divorce deed in presence of panchas was proved, there cannot be a
valid divorce. Learned counsel for the defendants distinguishes the
judgments referred to and relied upon by the learned counsel for the
plaintiffs.
31. This Court while admitting this second appeal on 15th March
1993, has formulated the following substantial questions of law :-
(i) Whether under Section 65 of the Indian Evidence Act, 1872
secondary evidence in the form of oral evidence can be led or can
be considered, to prove the contents of a document allegedly lost ?
(ii) Whether there is a presumption under Sections 50 and 114 of the
Evidence Act, 1872 as to legality as well as factum of second
marriage of respondent no.1 with deceased Namdeo in view of the
admitted first marriage of respondent no.1 ?
32. During the course of hearing of this second appeal, learned
counsel appearing for the parties agreed that the following additional
questions may be formulated as substantial questions of law in addition
to aforesaid two questions already formulated at the time of admission
of the second appeal. By consent of the parties, this Court has formulated
following additional substantial questions of law on 27th January 2016 :-
(iii) Whether there is a recognized custom in Maratha community to
dissolve a marriage by giving divorce to each other, privately
before panchas ?
(iv) Whether the oral evidence led by the plaintiff no.1, in respect of
alleged dissolution of her first marriage with Waman Chavan, can
be considered in absence of even a whisper about the same in her
pleadings i.e. Plaint ?
(v) Whether there was actual and legal dissolution of the marriage of
the plaintiff no.1 and her first husband Waman Chavan ?
(vi) Whether there was actual and legal dissolution of the marriage of
the defendant no.1 and deceased Namdeo Jadhav ?
(vii) Whether the alleged divorce deed Exhibit 79 is sufficient to prove
the dissolution of marriage of plaintiff no.1 and Waman Chavan, in
view of the admitted fact that both of them belong to Maratha
Community and in absence of proof of any custom to that effect ?
(viii) Whether plaintiff no.1 not being legally wedded wife of Namdeo,
the original owner of suit property, has any right, title or interest
whatsoever in the suit property ?
REASONS AND CONCLUSIONS:-
33. I shall first decide the issue whether there was a recognized
custom in Maratha community to dissolve a marriage by giving divorce
to each other, privately before panchas and if so, whether there was any
averment in the plaint filed by the plaintiffs alleging such custom and
whether such custom had been proved by the plaintiffs.
34. This Court also will simultaneously deal with the issue
whether there was any actual and legal dissolution of the marriage of the
plaintiff no.1 with her first husband Waman Chavan. Unless the plaintiffs
would have pleaded and proved the divorce of plaintiff no.1 with her
husband Waman Chavan before contracting the marriage with Namdeo
Jadhav and unless it was proved that the defendant no.1 also had taken
divorce from Namdeo Jadhav according to the recognized custom in
Maratha community privately, whether the presumption could be drawn
about the valid marriage between the plaintiff no.1 with Namdeo Jadhav.
35. Before this court deals with this issue in the later part of the
judgment, it is necessary to summarize the law laid down by the Supreme
Court in case of Yamanaji H.Jadhav vs. Nirmala (supra). It has been held
that 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. It
is held that 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 custom since 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. Supreme Court has held that there was an obligation on the
trial court to have framed an issue whether there was proper pleadings 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.
Supreme Court has held that even if the plaintiff might not have
questioned the validity of the customary divorce, the Court ought to have
appreciated the consequences of their not being a customary divorce
based on which the document of divorce has come into existence bearing
in mind that a divorce by consent is also not recognizable by a Court
unless specifically permitted by law.
36. Supreme Court in case of Jairam Somaji More vs.
Sindhubai w/o. Jairam More and others, reported in 1999(3) Mh.L.J.
872 after considering section 4 and section 29(2) of Hindu Marriage Act,
1955 has held that custom cannot be only pleaded but it has to be proved
that the parties were entitled for a customary divorce. It is held that unless
and until the marriage between the petitioner and the respondent wife was
dissolved legally the husband had no right to contract a second marriage
and since the earlier divorce was not recognized by law, the parties
continued to be under marital bond. Supreme Court in case of
Rameshchandra Rampratapji Daga vs. Rameshwari Rameshchandra
Daga, reported in (2005) 2 SCC 33 has taken a similar view.
37. Supreme Court in case of Subramani & Ors. Vs. M.
Chandralekha, reported in (2005) 9 SCC 407 has held that in the absence
of any pleadings that marriage between the husband and wife could be
dissolved in their community under custom and in the absence of any
satisfactory evidence let in to prove the custom prevalent in the
community or the procedure to be followed for dissolving the marriage, it
cannot be held that marriage between the respondent and her husband
stood dissolved by executing the marriage dissolution deed. It is held that
the parties alleging the customary divorce had not proved that the
document was in conformity with the custom applicable to divorce in the
community to which the parties belonged. Supreme Court in the said
judgment also adverted to its earlier judgment in case of Yamanaji
H.Jadhav (supra) and has taken the similar view.
38. Supreme Court in case of Shakuntalabai and another vs.
L.V.Kulkarni and another, reported in (1989) 2 SCC 526 has held that a
custom cannot be extended by logical process. Supreme Court adverted
to its earlier judgment in case of Saraswati vs. Jagadambai, reported in
AIR 1953 SC 201 in which it has been held that the oral evidence as to
instances which can be proved by documentary evidence cannot be fairly
relied upon to establish custom when no satisfactory explanation for
withholding the best evidence is given. It is held that custom cannot be
extended by analogy and it cannot be established by a priori method. It is
held that the custom must be proved and the burden of proof is on the
person who asserts it.
39. A perusal of the plaint filed by the original plaintiffs clearly
indicates that it was not disclosed in the plaint that the plaintiff no.1 was
married to Waman Chavan and her marriage with Waman Chavan was
dissolved by a decree of divorce or by customary divorce. It was only
alleged that in view of the defendant no.1 suffering from black leprosy,
her husband Namdeo Jadhav had got a writing executed from her
according to the custom prevailing in their community in Hindu
community in presence of panchas and thus she did not have any right in
any of the properties of the said deceased. Except pleadings to this effect,
there was no other averments made in the plaint by the original plaintiffs.
40. Insofar as oral evidence is concerned, the plaintiffs examined
plaintiff no.1 herself. In her examination-in-chief, she deposed that she
was married with Namdeo Jadhav 25 years back which marriage took
place at Waphale. It was deposed that there was a divorce between the
defendant no.1 and Namdeo Jadhav. She deposed that the plaintiff no.1
belonged to Maratha community and in her community, there was a
custom for taking divorce in presence of panchas. It was deposed that the
defendant no.1 was suffering from black leprosy and thus the said
Namdeo had given divorce to the defendant no.1 which divorce was taken
in the Court building premises at Madha. The divorce was in writing.
She deposed that she lived with Namdeo as his wife and had produced the
divorce deed. She deposed that she was married with Namdeo six
months after Namdeo divorced defendant no.1.
41. The plaintiff no.1 in her examination-in-chief deposed that
Waman Chavan was her first husband who died 15-16 years back. One
Guljarbai was the first wife of Waman Chavan and the plaintiff no.1 was
his second wife. She deposed that she had obtained divorce before 25
years. The divorce had taken place in presence of two panchas. The said
divorce deed was executed on a stamp paper which which was purchased
by Waman Chavan and the plaintiff no.1 from Dattatraya Atre at Madha.
She deposed that the said divorce deed was however lost. She deposed
that she had obtained divorce from Waman Chavan three months before
Namdeo Jadhav divorced the defendant no.1. She admitted that the suit
land was ancestral property of Namdeo. It is deposed that there was oral
partition effected by Namdeo.
42. In the cross examination of plaintiff no.1, the said witness
however deposed that she could not tell in which year she was married
with Waman Chavan. She deposed that the divorce deed obtained by her
from Waman Chavan was lost before 10-20 years and she did not
remember the names of two panchas who were present at the time of
execution of divorce deed. She deposed that the divorce deed was lost
before she gave evidence (R.C.S.No. 121 of 1966). She deposed that she
did not remember the date, year or season of divorce with Waman
Chavan. In her cross examination, she admitted that she could not tell
any instance of any one remarrying after giving divorce to first husband.
Namdeo did not show her divorce deed obtained by the defendant no.1.
She also did not make any inquiry before marrying with Namdeo as to
whether he had given divorce to the defendant no.1. She came to know
about such alleged divorce from her father. She was not witness to the
divorce deed between the Namdeo and the defendant no.1.
43. Insofar as partition is concerned, the plaintiff no.1 deposed
that she could not tell how many years ago Namdeo effected partition of
the properties.
44. Insofar as the second witness Mr.Dattatraya Atre who was a
stamp vendor and was examined by the plaintiffs is concerned, in his
examination-in-chief, he deposed that on 12th June, 1963 Waman Chavan
and the plaintiff no.1 had purchased two stamps each of Rs.1.50
denomination. He had sold two stamps each of Rs.1.50 to Waman
Chavan. The said Waman Chavan had put his signature in the register as
a purchaser of stamp. He deposed that the entry was in his handwriting.
The plaintiff no.1 had purchased two stamps each of Rs.1.50 at serial
no.725 and had put her thumb mark in the register as a purchaser of the
stamps. He also deposed that on 7th September, 1963, Namdeo Jadhav
had purchased stamp of Rs.1.50 from him at serial no.1163 and he had
obtained his thumb mark in the register of purchaser of stamp. The entry
in the register was in his handwriting. He deposed that on 7th September,
1963, defendant no.1, wife of Namdeo Jadhav had purchased stamp of
Rs.1.50 from him at serial no.1164 and had put her thumb mark in the
register as purchaser of stamp. The witness had alleged to have obtained
the thumb mark of the defendant no.1. The witness produced two extracts
about the entries in the register marked as Exs.76 and 77.
45. The said witness however in his cross examination admitted
that he did not personally know the purchasers of the stamp and he did
not attest the thumb mark of the purchasers in the register. The witness
deposed that he had mentioned the names of the purchasers in the register
and on the stamps as stated by them.
46. The plaintiffs had examined one Mr.Ambadas Jagdale as
witness no.3. In his examination in chief, he deposed that he was working
as a clerk to the advocate since 50 years at Madha and he scribed
documents like application etc. as directed by advocate or on the request
of the parties who come to him. He deposed that the documents dated 7th
September, 1963 shown to him was in his handwriting. He deposed that
defendant no.1 had obtained divorce deed from Namdeo Jadhav. He had
scribed the documents on the say of both the parties. He scribed one
more divorce deed which was obtained by Namdeo Jadhav from
defendant no.1. Namdeo Jadhav had put his thumb mark on the
document. The witness has alleged to have attested the thumb mark. He
deposed that he had attested the thumb marks of the attesting witnesses
on the documents.
47. The said witness however in his cross examination admitted
that he did not possess licence to work as a bond-writer. He possess
licence as clerk of an advocate. He admitted that without perusing
document, he could not tell whether he scribed any document. He
admitted that he was not in a position to say whether signature or initial
of executant was to be obtained at the place of corrections or alterations
in document.
48. The fourth witness examined by the plaintiffs i.e. Namdeo
Chavan in his examination in chief deposed that he knew Namdeo
Jadhav, the plaintiffs and also the defendants. He deposed that he knew
the relationship between the defendant no.1 and Namdeo because he
resided in the same village. Plaintiff no.1 was residing in the house of the
Namdeo Jadhav since her marriage with Namdeo before 25 years. The
witness deposed that he was a witness to the marriage. In the marriage
ceremony, 5 steps were performed. He also deposed that there was a
divorce between Namdeo Jadhav and the defendant no.1. The divorce
deed was executed by the said Namdeo and defendant no.1 in presence of
two panchas by them. He deposed that there is custom of taking divorce
by documents in presence of two panchas. All the parties belonged to
Maratha community. At the time of the death of Namdeo Jadhav, the
plaintiff no.1 was living in his house whereas the defendant no.1 was
living at Angar, plaintiff nos. 2 to 4 were living in the house of Namdeo.
49. The said witness in his cross examination admitted that
Sakharbai who was sister of the plaintiff no.1 was the wife of the cousin
of the said witness. He deposed that he did not remember the date, season
or year of the marriage of plaintiff no.1 with Namdeo. About 30 persons
were present at the time of marriage but he did not remember the time of
the marriage. He also did not know whether wedding invitation cards
were given to the concerned persons. He could not describe what was
homa and the ceremony of taking five steps by the couple. Insofar as
divorce between the defendant no.1 and Namdeo Jadhav is concerned, it
was deposed that he did not witness any other divorce in the Maratha
community.
50. The fifth witness examined by the plaintiffs was Mr.Babu
Sambhu Parve. In his examination in chief, he deposed that he knew all
the plaintiffs and the defendants and also knew Waman Chavan. He
deposed that the plaintiff no.1 was the wife of Waman Chavan who had
married with Namdeo Jadhav in the month of Kartik before 25 years. He
was the witness to that marriage. Homa was performed. He deposed that
defendant no.1 was staying at Angar when the plaintiff no.1 had married
to Namdeo. He deposed that defendant no.1 was suffering from a disease
and thus the said Namdeo had divorced her. Plaintiff no.1 and Waman
Chavan also divorced each other. He deposed that he was the witness to
the divorce deed between plaintiff no.1 and Waman Chavan when
Gafoorsaheb had scribed the divorce deed. Waman Chavan put his
signature on the divorce deed and the plaintiff no.1 put her thumb
impression. He deposed that in Maratha community there was a custom
in which a divorce could be effected with mutual consent in presence of
four panchas.
51. The said witness in his cross examination deposed that he
had not received any marriage invitation card of the plaintiff no.1 with
Namdeo Jadhav. He could not tell the day or date of the marriage. His
house was not in the same locality where the house of Namdeo Jadhav
was situated. He deposed that he had learnt that defendant no.1 had a
disease and was thus divorced by Namdeo Jadhav. He attested his thumb
mark on the divorce deed which was between plaintiff no.1 and Waman
Chavan. He deposed that he could not tell any other instance of a woman
of his community remarrying after divorcing her first husband.
52. The defendant no.1 examined himself as a witness. In her
examination in chief she deposed that she married with Namdeo Jadhav
when she was minor and had never suffered from black leprosy. She also
deposed that in her community there was no custom of obtaining divorce
by consent before panchas. She denied that the said Namdeo Jadhav had
married with plaintiff no.1 or that the said Namdeo Jadhav was father of
plaintiff nos. 2 to 4. She deposed that the plaintiff no.1 was the wife of
Waman Chavan and was living with Waman Chavan in his house till his
death. She deposed that the plaintiffs had no interest in the suit property
and had never cultivated any part of the suit land.
53. In her cross examination, she deposed that the suit land was
an ancestral property of Namdeo Jadhav. She belonged to Maratha
community. Waman Chavan as well as plaintiff no.1 also belonged to
Maratha community. She did not know what was the procedure if
husband or wife in their community wanted divorce and separation. She
deposed that the plaintiff nos. 2 to 4 were living with plaintiff no.1 since
their birth. In her cross examination she denied that she was suffering
from black leprosy. She deposed that the relations between the plaintiff
no.1 and Waman Chavan were not cordial. She did not know whether the
plaintiff no.1 and Waman Chavan divorced each other on 12th July, 1963.
54. A perusal of the plaint filed by the original plaintiffs clearly
indicates that it was not pleaded that there was a divorce between the
plaintiff no.1 and her first husband Waman Chavan before she allegedly
contracted marriage with Namdeo Jadhav.
55. The question that arose before the learned trial judge was
that if there was no pleading in the plaint by the plaintiffs that there was a
divorce between the plaintiff no.1 and her first husband Waman Chavan,
whether evidence led if any on such alleged divorce could be relied upon
by the plaintiffs. The learned trial judge held that the plaintiffs had tried
to suppress the material fact in their plaint about status of the plaintiff
no.1 on the date of her alleged marriage with Namdeo Jadhav. A perusal
of the oral evidence led by the plaintiff no.1 clearly indicates that the
plaintiff no.1 could not produce the alleged divorce deed between the
plaintiff no.1 with Waman Chavan which was alleged to have been lost
before 10-20 years. The learned trial judge also considered the deposition
of the plaintiff no.1 in R.C.S.No. 121 of 1966 at Ex.69. In the said
deposition, the plaintiff no.1 had deposed that the divorce deed was in her
possession. The said deposition was recorded on 20th January, 1975. The
learned trial judge rightly held that the plaintiff no.1 had contradicted
herself on the point of loss of divorce deed and was not stating the truth
about her alleged divorce with the said Namdeo Chavan. The plaintiff
no.1 also did not seek any permission to adduce secondary evidence
about the execution and contents of the divorce deed.
56. In my view the learned trial judge has rightly held that the
evidence of the plaintiff no.1 about the alleged divorce between her and
Waman Chavan did not appear natural and reliable.
57. Insofar as evidence of PW-2 Dattatraya Atre who had alleged
that he had sold two stamp papers to the plaintiff no.1 and Waman
Chavan on 12th June, 1963 is concerned, in my view even if it was proved
that the said witness had sold any stamp paper to the plaintiff no.1 and
Waman Chavan, that would not prove that any divorce had actually taken
place between the plaintiff no.1 and the said Waman Chavan. The said
witness admitted in his cross examination that he did not know the
purchaser of the stamp personally. He was not witness to the execution of
the alleged divorce deed between plaintiff no.1 and the said Waman
Chavan. The identity of the purchaser of the stamp was also not
established in the evidence of the said Dattatrata Atre. The said witness
thus neither could prove the case of the plaintiffs on the issue of the
alleged divorce between plaintiff no.1 and the said Waman Chavan nor
about the alleged prevailing customary divorce.
58. Insofar as evidence of Mr.Ambadas Jagdale (PW-3) is
concerned, he was alleged to be working as a clerk in the office of an
advocate and had alleged to have scribed the documents on the say of
defendant no.1 and the said Namdeo Jadhav i.e. the alleged deed of
divorce. He had not perused the document before deposing that he had
scribed the said document. The said witness even could not say whether
the signature or initial of the executor was to be obtained at the place of
correction or alteration of the documents. In my view the said witness
did not prove the alleged divorce between Namdeo Jadhav with the
defendant no.1 herein. The said clerk did not possess licence to work as a
bond writer and had not personally seen the documents.
59. The evidence of Namdeo Chavan (PW-4) who was examined
by the plaintiffs on the issue of customary divorce in the community
though had deposed in his examination in chief that the divorce was
executed in presence of two panchas and there was a custom of executing
the divorce documents in presence of two panchas, he admitted that he
was not a witness to any other divorce in the Maratha community. The
said witness was admittedly a close relative of the plaintiff no.1. He also
could not remember the date, season or year of the marriage of plaintiff
no.1 with Namdeo. His evidence was inconsistent with the evidence of
plaintiff no.1.
60. Insofar as evidence of PW-5 Mr.Babu Sambhu Parve is
concerned, he deposed that one Mr. Gafoorsaheb had scribed the divorce
deed between the plaintiff no.1 and Waman Chavan. The learned trial
judge has rightly held that if the scribe of the alleged divorce deed was
alive, the plaintiffs ought to have examined the said scribe. A perusal of
the record indicates that the plaintiffs did not seek permission to lead
secondary evidence about the execution and contents of the alleged
divorce deed between the plaintiff no.1 and Waman Chavan. The
plaintiffs in my view ought to have examined Mrs.Girijabai who was the
first wife of Waman Chavan and admittedly was alive on the date of
recording the evidence who could have been a reliable witness to prove
the alleged divorce between the plaintiff no.1 with Waman Chavan and
her evidence could have been the best possible evidence to prove the case
of the plaintiffs.
61. A perusal of the record clearly indicates that it was not the
case of the plaintiff no.1 that she was a witness to the divorce between the
defendant no.1 and Namdeo Jadhav. In the written statement, the
defendants had specifically denied that the defendant no.1 had divorced
her husband late Namdeo Jadhav at any point of time. The defendant
no.1 also had specifically denied that she was suffering from any black
leprosy. The allegation of the plaintiffs that the defendant no.1 was
suffering from black leprosy and on that ground there was a divorce
between Namdeo Jadhav with the defendant no.1 on that ground or
otherwise was not proved by the plaintiffs. The evidence of the plaintiff
no.1 on this issue was hear say evidence and she had no personal
knowledge about the alleged divorce between the defendant no.1 with
Namdeo Jadhav.
62. A perusal of the evidence of all the witnesses examined by
the plaintiffs clearly indicates that none of the witness examined by the
plaintiffs could prove that in the Maratha community, divorce was
permissible and could be obtained by execution of deed of divorce in
presence of panchas or other witnesses. The witnesses admitted in the
cross examination that they had not attended any other alleged customary
divorce in the Maratha community. Except bare words in the plaint that
such divorce was permissible by executing a deed of divorce before
panchas in the plaint, the plaint was totally vague. There was no specific
evidence led by the witnesses examined by the plaintiffs on the issue of
alleged customary divorce in the Maratha community by executing deed
of divorce before panchas and such alleged customary divorce was not
proved at all.
63. The learned trial judge in my view has rightly rendered a
finding that the alleged customary divorce by execution of deed of
divorce in the presence of panchas was not proved by the plaintiffs. A
perusal of the order passed by the lower appellate court however indicates
that the lower appellate court has totally overlooked the fact that the
pleadings as well as the oral evidence led by the plaintiffs on the issue of
alleged customary divorce was totally vague and without particulars. In
my view the lower appellate court has passed the impugned order
allowing the appeal by overlooking the evidence on record mechanically
and has reversed the findings rendered by the learned trial judge. In my
view the lower appellate court could not have interfered with the findings
rendered by the learned trial judge on the issue that the alleged customary
divorce by execution of deed of divorce in presence of panchas was not
proved by the plaintiffs.
64. A perusal of the order passed by the Lower Appellate Court
clearly indicates that the Lower Appellate Court failed to appreciate the
inconsistency in the oral evidence led by the witnesses examined by the
plaintiffs on the issue of the steps taken in the marriage of the plaintiff
no.1 with Namdeo Jadhav. The Lower Appellate Court failed to
appreciate that even if the presumption in law could be drawn of a
marriage in view of the plaintiff no.1 allegedly stayed with Namdeo
Jadhav for long time and plaintiff nos.2 to 4 having begotten out of the
said relationship, that itself would not prove that the plaintiff no.1 was
divorced by her husband Waman Chavan prior to her alleged marriage
with Namdeo Jadhav. It is erroneously held by the Lower Appellate Court
that there was no necessity to point out any other instance referred to by
PW-5 Mr.Babu Parve examined by the plaintiffs.
65. It is well settled principles of law laid down by the Supreme
Court that prevalence of customary divorce in the community to which
the parties belong, contrary to general law of divorce must be specifically
pleaded and established by person propounding such custom. In my
view, in absence of any proper pleadings on behalf of the plaintiffs in
the plaint about the then alleged existing custom and customary divorce
in the Maratha Community, the plaintiffs could not have led any oral
evidence on the said issue. Be that as it may, though the oral evidence
was led by the plaintiffs by examining five witnesses, the plaintiffs, in
my view, have miserably failed to prove the prevalence of customary
divorce in the Maratha Community to obtain divorce by execution of
the document in presence of panchas when such customary divorce was
contrary to general law of divorce prescribed under the provisions of
the Hindu Marriage Act, 1955.
66. Section 13 of the Hindu Marriage Act, 1955 provides for
dissolution of marriage by a decree of divorce on various grounds set
out therein. Section 4 of the Hindu Marriage Act, 1955 provides that save
as otherwise expressly provided in the Hindu Marriage Act, 1955, 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 the Hindu
Marriage Act, 1955 shall cease to have effect with respect to any matter
for which provision is made in the said Act. Section 29 (2) of the Hindu
Marriage Act, 1955 provides that nothing contained in the said Hindu
Marriage 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 the said Act. Section 3(a) of the Hindu Marriage Act, 1955 defines
the expressions 'custom' and 'usage.' It is provided that unless the context
otherwise requires, the 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. It is provided that the rule is certain and not
unreasonable or opposed to public policy and further provided that in
the case of a rule applicable only to a family, it has not been discontinued
by the family.
67. The conjoint reading of Section 3(a), 4(a) and 29 (2) of the
Hindu Marriage Act, 1955 indicates that though Section 29(2) of the
said Act saves customary rights, a person who relies upon such custom
has to prove that such custom and usage had been continuously and
uniformly observed for a long time and had obtained the force of law
amongst Hindus in their local area, tribe, community, group or family
and such custom was not unreasonable or opposed to public policy. In
my view, the plaintiffs have miserably failed to prove at the first instance
that there was any such custom prevailing in the Maratha Community to
obtain divorce by execution of a document in presence of Panchas and
secondly, whether such alleged customary divorce was continuously
and uniformly observed for a long time in the Maratha Community and
was not opposed to public policy. None of the witnesses examined by
the plaintiffs could prove such alleged customary divorce having been
followed continuously and uniformly in their community before the
learned trial Judge.
68. A perusal of Section 4 of the Hindu Marriage Act, 1955
clearly indicates that any custom or usage as part of that law in force
immediately before the commencement of the Hindu Marriage Act, 1955
shall cease to have effect after the Hindu Marriage Act, 1955 came into
force.
69. In so far as submission of Mr.Mandlik, learned counsel for
the respondents that since there was a presumption of law of a valid
marriage between the plaintiff no.1 and the said Namdeo Jadhav in view
of the plaintiff no.1 having stayed with Namdeo Jadhav for a long period
and three children having begotten out of such relationship and thus
there was a presumption of a valid divorce between the plaintiff no.1
and the said Waman Chavan prior to contracting her marriage with
Namdeo Jadhav is concerned, I am afraid this submission cannot be
accepted. In my view, no presumption of law can be drawn in respect
of a valid divorce between the parties. The divorce can be granted only
under the provisions of Section 13 of the Hindu Marriage Act, 1955
amongst Hindus on the grounds set out therein unless such divorce is
recognized by custom. In my view, even if the plaintiff no.1 was staying
with the said Namdeo Jadhav for some time and if any issues were
begotten out of such relationship between the plaintiff no.1 and the said
Namdeo Jadhav, even if legal presumption of marriage of the plaintiff
no.1 and the said Namdeo Jadhav is drawn in accordance with law,
presumption of divorce of the plaintiff no.1 with her husband Waman
Chavan cannot be drawn by any Court of law.
70. In my view, divorce can be granted either by a decree of
Court or by custom prevailing in the community continuously and
uniformly observed and had obtained the force of law amongst such
community which was not unreasonable or opposed to public policy. The
plea of divorce has to be raised very specifically and has to be proved
strictly. Section 5 of the Hindu Marriage Act, 1955 provides that a
marriage may be solemnized between any two Hindus if neither party
has a spouse living at the time of the marriage. It is thus clear beyond
reasonable doubt that unless the plaintiff no.1 had specifically pleaded
and proved that she was divorced by Waman Chavan before she had
alleged to have married with the said Namdeo Jadhav, she could not
have contracted any marriage with the said Namdeo Jadhav. In my view,
the plaintiff no.1 was not eligible to get married to the said Namdeo
Jadhav in view of the plaintiff no.1 not having proved her divorce with
Waman Chavan before allegedly contracting the marriage with Namdeo
Jadhav.
71. A person must be eligible to get married before contracting
the marriage and not otherwise. Section 11 of the Hindu Marriage Act
provides that any marriage solemnized after the commencement of the
said Act shall be null and void and may, on a petition presented by
either party thereto, 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. It is thus clear that if the husband of the plaintiff no.1, i.e. Waman
Chavan was alive and their marriage was subsisting at the time of alleged
marriage between the plaintiff no.1 and Namdeo Jadhav and there being
no divorce between them, the defendant no.1 and Namdeo Jadhav, neither
the plaintiff no.1 nor the said Namdeo Jadhav could have contracted
marriage with each other and such marriage would be a void marriage
being in contravention of the conditions set out of Section 5 (i) of the
Hindu Marriage Act.
72. In my view, even if presumption of law could be drawn of a
valid marriage between the plaintiff no.1 and Namdeo Jadhav, there
cannot be a presumption in law that the said marriage was preceded
by a valid divorce between the plaintiff no.1 and Waman Chavan and
also between the defendant no.1 and Namdeo Jadhav unless the same
was strictly proved. Admittedly, the defendant no.1 in her written
statement had pleaded that she was never divorced with the said Waman
Chavan. The plaintiffs have failed to prove the divorce of the plaintiff
no.1 with Waman Chavan and also the divorce between the defendant
no.1 and Namdeo Jadhav before allegedly contracting the marriage with
Namdeo Jadhav. I am thus not inclined to accept the submission of
Mr.Mandlik, learned counsel for the respondents that the Court has to
draw a presumption of a valid divorce having obtained by the plaintiff
no.1 with Waman Chavan and the defendant no.1 with Namdeo Jadhav
before the plaintiff no.1 allegedly having contracted the marriage with
Namdeo Jadhav.
73. In so far as the judgment of the Supreme Court in the case
of Badri Prasad vs. Dy. Director of Consolidation and Ors. (supra) relied
by the learned counsel for the respondents (original plaintiffs) is
concerned, it is held by the Supreme Court that a strong presumption
arises in favour of wedlock where the partners have lived together for a
long spell as husband and wife and although the presumption is
rebuttable, a heavy burden lies on him who seeks to deprive the
relationship of legal origin. It is held that law leans in favour of
legitimacy and frowns upon bastardy. There is no dispute about the
proposition of law laid down by the Supreme Court in the said judgment.
The said judgment, however in my view, does not lay down a law that
similar presumption shall also be drawn in respect of the customary
divorce deemed to have been existed before a party to such alleged
customary divorce having started living together with another party for
a long spell as husband and wife. The said judgment of the Supreme
Court in the case of Badri Prasad vs. Dy. Director of Consolidation and
Ors. (supra), in my view, thus does not assist the case of the original
plaintiffs.
74. In so far as the judgment of the this Court in the case of
Ningu Vithu Bamane & Ors. Vs. Sadashiv Ningu Bamane & Ors.
(supra) relied by the learned counsel for the respondents (original
plaintiffs) is concerned, this Court in the said judgment has taken a view
that there is a legal presumption in favour of marriage and legitimacy
and the burden of proving a fact existing otherwise is on the party who
challenges the marriage between two persons and the legitimacy of the
children born of such marriage. There is no dispute about the propositions
laid down by this Court in the said judgment. In my view, even the said
judgment would not assist the case of the original plaintiffs in support of
the submission that the Court shall draw a legal presumption in favour
of a valid customary divorce alleged to have been obtained before the
plaintiff no.1 alleged to have contracted the marriage with Namdeo
Jadhav and the said Namdeo Jadhav also had alleged to have given a
customary divorce to the defendant no.1. It is thus clear that the alleged
marriage between the plaintiff no.1 and Namdeo Jadhav is void.
75. In so far as the submission of Mr.Mandlik, learned counsel
for the original plaintiffs that in one of the proceedings, the defendant
nos.2 & 3 who are sons of the defendant no.1 admitted that the plaintiff
nos.2 to 4 were step brothers and sisters of the defendant nos.2 & 3 and
thus the plaintiffs were not required to prove the admitted fact is
concerned, learned counsel placed reliance on the judgment of the
Supreme Court in the case of Union of India (UOI) vs. Moksh Builders
and Financiers Ltd. and Ors. (supra). In my view, even if there was any
such admission on the part of defendant nos.2 & 3 that would not be a
ground for drawing a legal presumption that there was any valid
customary divorce between the plaintiff no.1 with Waman Chavan and
the defendant no.1 with Namdeo Jadhav. The said judgment, in my
view, thus would not assist the case of the original plaintiffs.
76. In so far as the alleged divorce deed being Exhibit 79
produced by the plaintiffs is concerned, since the plaintiffs failed to prove
the prevailing custom of obtaining a customary divorce in the Maratha
Community by executing a document in presence of Panchas, even if
the said divorce deed was alleged to have been proved, in my view, the
said document would not be sufficient to prove the dissolution of
marriage of the plaintiff no.1 and Waman Chavan by alleged customary
divorce prevailing in the Maratha Community.
77. A perusal of the plaint filed by the plaintiffs and the evidence
led clearly indicated that the suit property was not a self-acquired
property of Namdeo Jadhav, but was an ancestral property. The plaintiffs
failed to prove any partition of the property at any point of time. In my
view, since the plaintiff no.1 was not a legally wedded wife of Namdeo
Jadhav, she could not claim right in the ancestral properties. Since the
plaintiff nos.2 to 4 were not the children out of the lawful marriage
between the plaintiff no.1 and the said Namdeo Jadhav, the plaintiff
nos.2 to 4 also cannot claim any right in the suit properties which were
admittedly the ancestral properties.
78. In so far as the question of law formulated by this Court i.e.
'whether under Section 65 of the Indian Evidence Act, 1872, secondary
evidence in the form of oral evidence can be led or considered to prove
the contents of the document allegedly lost' is concerned, in my view,
before allowing production of secondary evidence, it must be established
that the original document is lost or destroyed or is being deliberately
withheld by the party. Supreme Court in the case of Rakesh Mohindra
Vs.Anita Beri and Ors., reported in 2016 ALL SCR 1 has held that the
party who seeks to lead secondary evidence has to lay down the factual
foundation to establish the right to give secondary evidence where the
original document cannot be produced. It is held that neither mere
admission of a document in evidence amounts to its proof nor mere
making of an exhibit of a document dispenses with its proof, which is
otherwise required to be done in accordance with law.
79. It is held by the Supreme Court that the pre-conditions for
leading secondary evidence are that such original documents could
not be produced by the party relying upon such documents in spite of
best efforts, unable to produce the same which is beyond their control.
The party who seeks to produce secondary evidence must establish for
the non-production of primary evidence. Unless, it is established that
the original document is lost or destroyed or is being deliberately
withheld by the party in respect of that document sought to be used,
secondary evidence in respect of that document cannot be accepted. In
the facts of this case, the plaintiffs could not prove before the learned
trial Judge that any of the alleged divorce deed was executed and lost
and could not have produced and thus they were entitled to lead
secondary evidence under Section 65 of the Indian Evidence Act, 1872.
In my view, the party who seeks to lead secondary evidence has to
establish that such party is not able to produce the primary document
which beyond his control or that the same is lost or destroyed or is
being deliberately withheld by the party in respect of that document
sought to be used. Unless these mandatory conditions of Section 65 of
the Indian Evidence Act, 1872 are complied with, such party cannot be
allowed to lead secondary evidence. The substantial question of law no.(i)
is accordingly answered in negative in the facts of this case.
80. In so far as the substantial question of law no.(ii) is
concerned, the plaintiffs had failed to prove the divorce of the plaintiff
no.1 with Waman Chavan before allegedly contracting the second
marriage with Namdeo Jadhav and thus there could not be any
presumption under Sections 50 and 114 of the Indian Evidence Act, 1872
as to the legality as well as factum of the second marriage of the plaintiff
no.1 with the deceased Namdeo Jadhav in view of the existing first
marriage of the plaintiff no.1 with Waman Chavan. The said question of
law no.(ii) is answered accordingly.
81. In so far as the substantial question of law no.(iii) is
concerned, the plaintiffs have failed to prove any recognized custom in
Maratha community to dissolve a marriage by giving divorce to each
other privately before the panchas. The said question of law no.(iii) is
accordingly answered in negative.
82. In so far as the substantial question of law no.(iv) is
concerned, in my view, since there was no averment in the plaint
about first marriage of the plaintiff no.1 with Waman Chavan, the Lower
Appellate Court could not have considered the oral evidence led by the
plaintiff no.1 in respect of the said alleged dissolution of first marriage
with Waman Chavan. The said question of law no.(iv) is accordingly
answered in negative.
83. In so far as the substantial question of law no.(v) is
concerned, In my view, since the plaintiffs have failed to prove actual
and legal dissolution of the marriage of the plaintiff no.1 and her first
husband Waman Chavan, the said question of law no.(v) is answered in
negative.
84. In so far as the substantial question of law no.(vi) is
concerned, the plaintiffs have failed to prove that there was actual and
legal dissolution of the marriage of the defendant no.1 and deceased
Namdeo Jadhav and thus the said question of law no.(vi) is answered
in negative.
85. In so far as the substantial question of law no.(vii) is
concerned, in my view, the plaintiffs have failed to prove the customary
divorce. The alleged divorce deed Exhibit 79 was not sufficient to prove
the dissolution of marriage of plaintiff no.1 and Waman Chavan in
absence of proof of any custom or customary divorce in the Maratha
Community by execution of the document in presence of Panchas. The
said question of law no.(vii) is accordingly answered in negative.
86. In so far as the substantial question of law no.(viii) is
concerned, in my view, since the plaintiff no.1 was not a legally wedded
wife of Namdeo Jadhav, she has no right, title or interest of any nature
whatsoever in the suit property which is ancestral property. The said
question of law no.(viii) is accordingly answered in negative.
87. In my view, the impugned judgment delivered by the Lower
Appellate Court is totally contrary to the law and in ignorance of and
overlooking the documentary and oral evidence led by the parties.
Various findings recorded by the Lower Appellate Court are totally
perverse and thus are required to be interfered with by this Court under
Section 100 of the Code of Civil Procedure, 1908.
88. I therefore pass the following order :-
(i) The impugned judgment dated 3rd September 1992 passed by the
Lower Appellate Court in Civil Appeal No.246 of 1989 is set aside.
Civil Appeal No.246 of 1989 is dismissed;
(ii) The judgment and decree dated 31st March 1989 passed by the
learned trial Judge in Regular Civil Suit No.27 of 1990 is upheld;
(iii) Second Appeal No.108 of 1993 is allowed in aforesaid terms;
(iv) In view of disposal of the appeal, civil application does not survive
and is accordingly disposed of;
(v) There shall be no order as to costs.
R.D. DHANUKA, J.
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