Andhra HC (Pre-Telangana)
Loya Padmaja @ Venkateswaramma vs Loya Veera Venkata Govindarajulu on 7 September, 1999
Equivalent citations: 1999(6)ALD413, AIR 2000 ANDHRA PRADESH 284, (2000) 2 MARRILJ 320, (1999) 6 ANDHLD 413, (2000) 1 ANDHWR 321
ORDER
Motilal B. Naik, J
1. This appeal is directed against the judgment and decree dated 4-2-1997 passed by the II Additional Subordinate Judge, Vijayawada in OP No.44 of 1993 annulling the marriage between the parties under Section 11 of the Hindu Marriage Act, 1955.
2. For the purpose of convenience, the parties are referred to as appellant-wife and respondent-husband.
3. Wife is the appellant before us. The respondent-husband filed a petition (OP No.44 of 1993) under Section 11 of the Hindu Marriage Act to declare that the alleged marriage between him and the appellant which took place on 15-9-1980 at Lord Venugopala Swamy Temple, Gudiwada as a nullity and to pass appropriate order in the circumstances of the case.
4. According to the respondent-husband, he is a resident of Jaggayyapet as on the date of presenting the petition and was working as a driver in APSRTC at Jaggayyapet. Prior to moving to Jaggayyapet, the respondent lived in Gudiwada from the years 1982 to 1987.During his stay at Gudiwada, the respondent came into contact with the appellant who is also a resident of Gudiwada. It was informed to the respondent by the appellant that she is unmarried. As by that time both of them had developed liking for each other and in the background of the fact that the appellant informing the respondent that she was unmarried, both of them went to Lord Venugopala Swamy temple at Gudiwada and exchanged garlands. Thereafter, they lived in Gudiwada. After securing a job of driver in APSRTC, they shifted their residence from Gudiwada to Jaggayyapet. They also begot a female child by name Naga Varalakshmi.
5. The respondent-husband alleged that after five or six years of their marriage, he came to know that prior to his marriage with the appellant, the appellant was a married lady whose marriage was performed with one Dontagani Jamalaiah, son of Narasimhaiah of Cherukommupalem village as per the customs in the year 1977 and the appellant lived with said Jamalaiah. While the marriage between the appellant and said Jamalaiah was in force and not being dissolved by any competent Court by a decree of divorce, the said fact of the marriage was concealed by the appellant and she married the respondent. The first husband of the appellant, viz., Jamalaiah started visiting their house at Jaggayyapet. When the respondent-husband found said Jamalaiah visiting their house on 7-4-1991, he questioned the appellant and made enquiries about the relationship. Thereafter, the wife left the society of the respondent-husband and filed MC No.7 of 1991 on the file of the Additional Judicial I Class Magistrate, Gudivada.
6. In his petition, the respondent-husband alleged that himself and the appellant are not husband and wife in the eye of law as they did not underwent the formalities required as per the Hindu customs and it is only an exchange of garland and assuch it cannot be construed as a valid marriage. Even if it is to be held that his marriage with the appellant-wife is valid, since the first marriage of the appellant with said Jamalaiah was in force and therefore, the marriage between himself and the appellant has to be declared as void. The respondent-husband, under these circumstances, sought a direction from the Court below to declare his marriage with the appellant as void.
7. The appellant-wife who is the respondent in OP No.44 of 1993, contested the matter by filing counter denying the allegations made by the respondent-husband in the petition. The appellant-wife also denied her marriage with one D, Jamalaiah said to have been performed as per customs on 28-8-1977. However, the appellant-wife pleaded that even if there was such a marriage, as she obtained a customary divorce in the presence of caste elders before her marriage with the respondent and as such, she married the respondent. The appellant-wife also denied the allegation that said Jamalaiah used to visit their house. She further stated that the respondent-husband has founded all these allegations only to seek annullment of her marriage with him on fictitious grounds.
8. On the basis of the above pleadings, the Court below framed the following points:
(1) Whether the respondent married one Dontagani Jamalaiah earlier to her marriage with this petitioner and the same is subsisting without any valid dissolution ?
(2) Whether the petitioner is entitled for dissolution of his marriage with the respondent by way of a decree ?
(3) To what relief?
9. In order to substantiate their respective averments, the respondent-husband examined himself as PW1 and also examinedone E. Apada Reddy as PW2. Exs.A1 to A4 were also got marked on his behalf, The appellant-wife examined herself as RW1 and also examined her grandmother as RW2. No documents were marked on her behalf.
10. The Court below having regard to the oral and documentary evidence found that the husband was able to prove that the wife had married one Jamalaiah and that the said marriage was subsisting at the time of the appellant's marriage with the respondent. The Court below held that the marriage between the parties is void under Section 11 of the Hindu Marriage Act as it contravenes clause (i) of Section 5 of the Hindu Marriage Act. By holding so, the Court below by a decree dated 4-2-1997 annulled the marriage between the parties, against which the wife has preferred this appeal.
11. Sri Dasaratharamaiah, Counsel for the appellant-wife submitted that the judgment and decree dated 4-2-1997 passed by the Court below annulling the marriage between the parties are erroneous. Counsel submitted that the appellant who examined herself as RW1 has deposed, while admitting her first marriage with said Jamalaiah, that her first marriage with Jamalaiah was not in force as on the date of her marriage with the respondent as she obtained customary divorce before the caste elders. She further deposed that this fact is known to the respondent at the time of her marriage with him as both of them lived in the same locality of Gudiwada town. The grandmother of the appellant who was examined as RW2 also spoken about the fact of obtaining customary divorce before the caste elders by the appellant from her first husband. Even the first husband of the appellant, viz., Jamalaiah who was examined in MC No.7 of 1991 filed by the appellant seeking maintenance, whose deposition is marked as Ex.A4 in the instant case, has also stated on oath that his marriage with the appellant was not in force as on the date of the marriage of the appellant withthe respondent as they obtained divorce customarily before the caste elders long ago. Counsel, therefore, stated that the Court below has not adverted to these vital aspects and has erroneously held that the first marriage of the appellant with said Jamalaiah was in force at the time of her marriage with the respondent. Counsel further submitted that even according to the averments made in the petition filed by the husband, though his marriage with the appellant took place on 15-9-1980, after five or six years from that date, i.e., some where in the year 1985 or 1986 he came to know about the marriage of the appellant with one D. Jamalaiah. Counsel submitted that even that is to be accepted, the respondent-husband continued to stay with the appellant upto the year 1991. It is only in the year 1991 when differences arose between them, the appellant was forced to leave the society of the respondent and she filed MC No.7 of 1991 thereafter. Counsel submitted that the respondent has condoned the appellant for her first marriage and stayed with her upto the year 1991 even though he knew about the said fact in the year 1985 or 1986 and therefore, it is not open to the respondent-husband to make hue and cry and seek annullment of his marriage with the appellant under Section 11 of the Hindu Marriage Act. Counsel further contended that the Court below has not appreciated the evidence on record, particularly the evidence of RWs.1 and 2 who categorically stated that the marriage of the appellant with Jamalaiah was dissolved by a customary divorce before the caste elders much earlier to her marriage with the respondent. Counsel also contended that in Ex.A1 which is the certified copy of the order in MC No.7 of 1991 dated 25-10-1991, the Judicial First Class Magistrate, Gudiwada held that the marriage between the appellant and Jamalaiah was dissolved by customary divorce before the caste elders. This fact has also been ignored by the Court below. Under these circumstances, Counsel submitted that the judgment and decree dated4-2-1997 passed by the Court below are unsustainable and they are liable to be set aside.
12. On behalf of the respondent-husband, Sri Anantha Reddy, learned Counsel, submitted that the counter filed by the appellant-wife in the OP discloses that she denied her first marriage with Jamalaiah but in her evidence as RW1 in the Court, she admitted the said marriage but stated that it was dissolved by a customary divorce before the caste elders. Learned Counsel stated that the respondent-husband is from Yadava community and whereas the appellant-wife is from Gowda community and there is no customary dissolution of marriage available to both these communities. Learned Counsel stated that Section 4 of the Hindu Marriage Act, 1955 has an overriding effect on the interpretation of Hindu law or custom or usage and after the commencement of the said Act, the force of such custom or usage shall stand to cease. According to the learned Counsel, even if there is a customary divorce available in the caste of the appellant, but as per the provisions of Section 4 of the Act, such customary divorce ceases to be in force. Learned Counsel therefore, submitted that in view of Section 4 of the Act, the first marriage of the appellant with Jamalaiah was still in force as on the date of their marriage with the respondent as it was not dissolved by a Competent Court of law. Counsel stated that as provided under Section 5(i) of the Hindu Marriage Act, 1955 that neither party to a marriage has a living spouse at the time of marriage, but as the appellant has her first husband living at the time of her marriage with the respondent, the Court below has rightly declared her marriage with the respondent as a nullity as it contravenes the provisions under Section 5(i) of the Act. In support of his contentions, learned Counsel has drawn our attention to the decisions reported in Smt. Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, and in Abbayolla M. Subba Reddy v. Padmamma, (FB).
13. In the wake of the above submissions, the point that arises for our consideration is whether the first marriage of the appellant with D. Jamalayya was subsisting at the lime of her marriage with the respondent on 15-8-1980 ? If so, in terms of Section 4 of the Hindu Marriage Act, 1955, whether her marriage with the respondent could be declared as null and void as provided under Section 11 of the said Act ?
14. For proper appreciation of the issue involved in this case, it is relevant to extract the provisions of Section 4 of the Hindu Marriage Act, 1955, which read thus:
"4. Overriding effect of Act :--Save as otherwise expressly provided in this Act;
(a) any text, rule or interpretation of Hindu law or any custom or usage as a part of that law in force immediately before the commencement of this Act shall cease to effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect insofar as it is inconsistent with any of the provision contained in this Act."
15. A reading of this provision does give an impression that any rule or interpretation of Hindu law or any custom or usage before the commencement of the Act ceases to have any effect with respect to any matter for which the provision is made in the said Act. Probably, we are of the view that the provisions under Section 4 of the Act have no application to the facts in issue. It is though contended by the Counsel for the respondent-husband that as on the date of the marriage of the respondent with the appellant, her first marriage with D. Jamalaiah was subsisting and that her marriage with the respondent is void as it contravened Section 5(i) of the Act, wemust say, this contention is untenable. The evidence of the appellant as RW1 and RW2 who is her grandmother, categorically shows that the appellant has obtained a customary divorce from her first husband D. Jamalaiah much earlier to her marriage with the respondent. Even the certified copy of the order in MC No.7 of 1991 which is filed by the appellant seeking maintenance for herself and for her female child, which is marked as Ex.A1 in the OP, the Court of Judicial First Class, Gudiwada has observed that the appellant has established that her first marriage with Jamalaiah was dissolved by a customary divorce before the caste elders. Her first husband D. Jamalaiah who has been examined in MC No.7 of 1991 and whose deposition is marked as Ex.A4 in this OP has also deposed that himself and the appellant obtained a customary divorce before the caste elders much before the marriage of the appellant. On a careful reading of Exs.A1 to A4 coupled with the evidence of the appellant as RW1 and her grandmother as RW2 it would clearly establish that the appellant has been able to establish that she obtained a customary divorce from her first husband Jamalaiah before the caste elders much earlier to her marriage with the respondent which took place on 15-9-1980.
16. The question, therefore, is whether the customary divorce dissolving the marriage of the appellant with her first husband Jamalaiah, obtained by the appellant before the caste elders, is recognised by the Hindu Marriage Act, 1955.
17. Section 29 of the Hindu Marriage Act, 1955 provides for 'Savings' and it reads thus:
"29. Savings :--(1) A marriage solemnised between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the partiesthereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste.
(2) Nothing contained in this 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 solemnised before or after the commencement of this Act.
(3) xxxxx xxxxx xxxxx (4) XXXXX XXXXX XXXXX
18. Sub-section (2) of Section 29 of the Act makes it abundantly clear that the right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of this Act, is saved. When there is a custom prevalent in a community either for dissolution or for performance of a marriage which is accepted and recognised, the same shall not be affected by any provisions of the Hindu Marriage Act, 1955.
19. In this case, as discussed by us, the appellant has been able to show before the Court through the evidence that though she married D. Jamalaiah, but she obtained customary divorce from him before her caste elders much before her marriage with the respondent and as on the date of her marriage with the respondent, her first marriage with Jamalaiah was not subsisting. This fact has also been substantiated by the evidence of Jamaliah who deposed in MC No.7 of 1991 and whose deposition is marked in this case as Ex.A4. Ex.A1 which is the certified copy of the order in MC No.7 of 1991 dated 25-10-1991 in which the Judicial First Class Magistrate, Gudiwada has formulated an issue as to whether the alleged oral divorce between the appellant and her first husband is valid, and on the basis of the evidence, held that the appellant's marriage with Jamalaiah ceased long ago by way of acustomary divorce before the elders and the respondent married her knowing fully well about the earlier marriage of the appellant with Jamalaiah. Though it may not be necessary for us to say further on this, incidentally it is also brought to our notice by the Counsel for the appellant that as against the order passed in MC No.7 of 1991 dated 25-10-1991, the criminal revision case No.673 of 1991 filed by the husband has been dismissed by this Court on 21-10-1992.
20. All these factors leave no scope for us to say that the first marriage of the appellant with D. Jamaliah is still subsisting as on the date of her marriage with the respondent. On the contrary, we must say that the marriage of the appellant with the respondent is in accordance with his choice and the method of their marriage was accepted and recognised by the society and they lived as wife and husband for a period of more than 10 years from the year 1980 to 1991 when differences arose which led to filing of MC No.7 of 1991 by the appellant and filing of OP No.44 of i_993 under Section 11 of the Hindu Marriage Act, 1955 by the respondent-husband.
21. Though the learned Counsel for the respondent-husband cited the decisions Yamunabai Anantrao v. Anantrao Shivram Adfiav and Abbayotta M. Subba Reddy v. Padmanitna (supra), on a reading of those decisions, we have no doubt to say that the legal implications and the issues involved in those decisions are not akin to the facts in issue in the instant case and as such those decisions have no bearing to the present set of facts.
22. For the foregoing reasons, the judgment and decree passed by the II Additional Subordinate Judge, Vijayawada in OP No.44 of 1993 dated 4-2-1997 cannot be sustained and we accordingly set aside the same. Consequently, OP No.44 of 1993 is dismissed.
23. In the result, this appeal is allowed with costs quantified at Rs.3,000/-.