Karnataka High Court
Narayana Naik vs Smt Leelavathi N on 1 February, 2019
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
MISCELLANEOUS SECOND APPEAL NO.178 OF 2012
BETWEEN:
NARAYANA NAIK
S/O BATYA NAIK
AGED ABOUT 47 YEARS
ATTENDAR
PUTTUR CO-OPERATIVE TOWN BANK
NO.34, NEKKILADY VILLAGE
POST PUTTUR D.K. - 574 325 ... APPELLANT
(BY SRI G.BALAKRISHNA SHASTRY, ADV.)
AND:
SMT.LEELAVATHI N.
D/O GOVINDA NAIKA
AGED ABOUT 46 YEARS
R/AT NADUSARU PUCHA VILLAGE
ASSISTANT LIBRARIAN
CENTRAL LIBRARY MADIKERE
POST MADIKERI, KODAGU - 571 201 ... RESPONDENT
(BY SRI S. VISHWAJITH SHETTY, ADV.)
THIS MSA IS FILED UNDER ORDER 43, RULE-1(u) LAND
ACQUISITION ACT, AGAINST THE JUDGMENT AND DECREE
DATED 30.07.2012 PASSED IN R.A.23/2007 ON THE FILE OF
THE PRL.SENIOR CIVIL JUDGE AND A.C.J.M., PUTTUR, D.K.,
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND ORDER DATED 04.01.2007 PASSED IN
O.S.20/2006 ON THE FILE OF THE PRL.CIVIL JUDGE
(JR.DN.), PUTTUR, D.K., DISMISSING AND REMANDING THE
MATTER TO THE TRIAL COURT WITH DIRECTION TO RE-
MSA No.178/2012
2
ADMIT THE SUIT UNDER ORIGINAL NUMBER AND DISPOSE
THE SUIT IN ACCORDANCE WITH LAW .
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Whether the order dated 30.07.2012 passed by the Principal Senior Civil Judge and A.C.J.M., Puttur, D.K. in R.A.No.23/2007 setting aside the order dated 04.01.2007 in O.S.No.20/2006 passed by the Principal Civil Judge (Jr.Dn.), Puttur, D.K. and remanding the matter to the Trial Court is sustainable in law is the question involved in this case.
2. The appellant and the respondent belongs to Marathi Community which comes under a Scheduled Tribes. Their marriage was performed on 07.05.2001 at Bhuvanendra Kala Mandira, Puttur as per their customs. After some time some trouble arose in the marriage. Therefore, appellant filed M.C.No.25/2003 on the file of the Principal Civil Judge (Senior Division) Puttur seeking MSA No.178/2012 3 dissolution of the marriage under Section 13(1) (ib) of Hindu Marriage Act, 1955.
3. Respondent contested the said petition on several grounds, one amongst them were that Section 2 (2) of the Hindu Marriage Act bars application of the said Act to the persons belonging to Scheduled Tribes. Thereafter the appellant filed memo before the Senior Civil Judge, Puttur in M.C.No.25/2003 seeking withdrawal of the petition on the ground that he has already divorced the respondent as per their custom. Therefore, the petition was dismissed.
4. Respondent filed O.S.No.20/2006 on the file of the Principal Civil Judge (Junior Division) Puttur, D.K. against the appellant for permanent injunction from he contracting second marriage.
5. The appellant appeared in the said suit and filed his written statement contending that there is MSA No.178/2012 4 already a customary divorce and Hindu Marriage Act does not apply to them etc.
6. On the basis of such pleadings, the Trial Court framed the following issues:
"1. Whether plaintiff proves that the marriage between plaintiff and defendant still subsists?
2. Whether plaintiff proves that defendant is trying to enter into second marriage during the subsistence of marriage with plaintiff?
3. Whether defendant proves that there is no bar to the persons from scheduled tribes to enter into second marriage during subsistence of first marriage?
4. Whether plaintiff is entitled for relief claimed?
5. What order or decree?"MSA No.178/2012 5
7. When the matter was set down for plaintiff's evidence, appellant/defendant filed memo to treat issue No.3 as preliminary issue.
8. The learned Civil Judge vide order dated 04.01.2007 treated issue No.3 as preliminary issue and held that Hindu Marriage Act, 1955 which bars bigamous marriage is not applicable to the parties. The Trial Court further held that there is no bar to the persons belonging to Scheduled Tribes to contract second marriage and therefore plaintiff cannot maintain the suit. Ultimately Trial Court dismissed the suit holding issue No.3 in appellant's favour.
9. The respondent challenged the said order before the Principal Senior Civil Judge, Puttur, D.K. in R.A.No.23/2007. The First Appellate Court on hearing the parties by the impugned order set aside the Trial Court's order and remanded the matter to the Trial Court with a direction to record the evidence of both MSA No.178/2012 6 sides and dispose of the matter in accordance with law on the following grounds:
i. Defendant did not demonstrate that the jurisdiction of the trial Court is ousted in entertaining the suit for permanent injunction;
ii. The contention of the defendant that there is already customary divorce, requires pleadings and proof;
iii. Defendant's contention that there is no prohibition as per the customs of the Scheduled Tribes people to under go bigamous marriage requires evidence and therefore issue No.3 could not have been treated as preliminary issue.
10. Sri G. Balakrishna Shastry, learned counsel for the appellant submits that Sub Section 2 of Section 2 of Hindu Marriage Act, 1955 bars operation of the said Act to persons belonging to the Scheduled Tribes. He further submits that once if the Hindu Marriage Act 1955 does not apply, there is no legal bar for contracting bigamous marriage. He further submits that the Civil MSA No.178/2012 7 Court can grant permanent injunction only, if there is infringement of any legal right and as there is no law conferring the said right on the plaintiff, Trial Court was justified in dismissing the suit on the preliminary issue.
11. Per contra, Sri S. Vishwajith Shetty, learned counsel for the respondent submits that the fact of the Trial Court considering issue No.3 as preliminary issue itself is erroneous. Referring to Order 14 Rule (2) (a) & (b) C.P.C., he contends that only issue relating to the jurisdiction of the Court and bar to the suit created by any law for time being in force can be treated as preliminary issues. He further contends that when defendant pleaded that his custom did not bar him contracting bigamous marriage, it was for him to plead and prove such custom and that is an issue of fact.
12. As rightly submitted by the learned counsel for the respondent having regard to Order 14 Rule 2 sub Rule 2 of C.P.C. the Trial Court could have tried issue No.3 as preliminary issue had it been a pure question of MSA No.178/2012 8 law i.e. if it related to jurisdiction of the Court or bar of any law to file suit.
13. It is no doubt true that Section 2 (2) of the Hindu Marriage Act makes the Act non applicable to the people of the Scheduled Tribes unless the Central Government issues a notification in the Official Gazette or otherwise issues a direction contrary to Section 2(2) of the Act.
14. However, appellant himself contended that their marriage was Governed by the customs prevalent amongst Scheduled Tribes people. He contended that the custom of his caste permits him to undergo bigamous marriage. Therefore, it was for him to adduce evidence in proof of such custom.
15. When the marriage is governed by customs then what were the incidents of such marriage, rights and obligations of the parties to the marriage under such customs is again a question of fact.
MSA No.178/20129
16. Section 38 (1) of the Specific Relief Act, 1963 states that a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. Section 38 (1) does not refer to legal obligations. Therefore to read the word 'legal' before the word 'obligation' in Section 38 (1) of the Specific Relief Act, is not the correct interpretation of the said Section, more so when customs have the force of law.
17. It was for the defendant to adduce the evidence in proof of the custom relating to the marriage in their community. Rights and obligations of the parties to such customary marriage, whether he could undergo second marriage without knowledge and consent of the other spouse in such customary marriage, were the questions of facts and they were not pure questions of law.
18. It is also material to note that the learned Trial Court in the very order refers to the rival MSA No.178/2012 10 contentions of the parties regarding issue No.3 being a question of law or not and in the next portion of the very order gives a finding on that issue. Even that procedure is also incorrect.
19. Order 41 Rule 23 empowers the Appellate Court to reverse the findings of the Trial Court, if the findings was given on the preliminary issue and remand the matter.
20. The First Appellate Court rightly exercised the power under Order 41 Rule 23 in holding that issue No.3 is not pure question of law, reversing the finding on issue No.3 and remanding the matter. The said order does not call for interference of this Court. Therefore, the appeal is dismissed.
Sd/-
JUDGE HR