Gujarat High Court
Umang Bhupendrakumar Shah vs Priyanka D/O. Sureshkumar Popatlal ... on 20 March, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025
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Reserved On : 13/03/2025
Pronounced On : 20/03/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2672 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
In R/FIRST APPEAL NO. 2672 of 2023
With
CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2024
In R/FIRST APPEAL NO. 2672 of 2023
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2024
In R/FIRST APPEAL NO. 2672 of 2023
With
CIVIL APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 2 of 2025
In R/FIRST APPEAL NO. 2672 of 2023
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2025
In R/FIRST APPEAL NO. 2672 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN
VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
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UMANG BHUPENDRAKUMAR SHAH
Versus
PRIYANKA D/O. SURESHKUMAR POPATLAL KOTECHA W/O. UMANG
BHUPENDRAKUMAR SHAH
==========================================================
Appearance:
MR NV GANDHI(1693) for the Appellant(s) No. 1
PARTY IN PERSON(5000) for the Defendant(s) No. 1
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NEUTRAL CITATION
C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
CAV JUDGMENT
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN VAISHNAV) 1 This First Appeal has been filed by the appellant who was the original applicant in Family Suit No.285 of 2017 before the Family Court at Rajkot. By the judgement and order dated 15.10.2022, the family suit of the appellant for declaring the marriage with the respondent void has been dismissed.
2 Facts in brief are as under:
2.1 The appellant got married with the respondent on 30.05.2013. This marriage, according to the appellant, was after he obtained a divorce on 24.09.2012 in Family Suit No.85 of 2012. The appellant approached the Family Court by filing Family Suit No. 285 of 2017 requesting that the marriage with the respondent be declared void.Page 2 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025
NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined It was his case that the marriage between the appellant and the respondent which was performed on 30.05.2013 be declared void. This was on account of the applicant's case that on the date of their marriage, the respondent was already married. Therefore, the marriage between the appellant and the respondent be declared as void since the respondent, on the date of their marriage, was married and it was only on 13.05.2016 that the respondent obtained a decree of divorce by mutual consent from her previous husband.
2.2 It was the appellant's case before the Family Court therefore that though the respondent had by a Deed of Customary Divorce dated 05.02.2013 obtained a customary divorce, the actual legal separation of the earlier marriage happened only when the respondent obtained a decree of divorce in the Family Court on 13.05.2016.
2.3 Obviously therefore, when the practice of obtaining Page 3 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined a customary divorce had no sanctity in law, the present marriage, solemnized in the year 2013, be declared void as the previous marriage between the respondent and her husband was subsisting till 13.05.2016. A prayer accordingly was made before the Family Court. 2.4 The respondent filed a reply before the Family Court denying these allegations. It was her case that the Customary Divorce was obtained in the year 2012 prior to the marriage intended to between the appellant and herself. It was her case that the appellant was earlier married to one Sonika Chhibar, from whom he took a divorce by mutual consent on 24.09.2012. In her reply, she made allegations that the appellant was in a relationship with one Niharika Singh. She also in the reply, stated that though the marriage between the appellant and herself was subsisting, the appellant was still in a relationship with his previous wife Sonika Chhibar. She submitted that though a Customary Divorce was taken on 05.02.2013, a need occurred for obtaining a Page 4 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined decree of divorce and therefore, a decree of divorce was obtained on 13.05.2016.
2.5 Based on the evidence on record, essentially Exh.30- the deposition of the appellant read with his cross- examination, Exh.36, the customary Deed of Divorce dated 05.02.2013 between the respondent and one Pratik Vasantrai Manek, Exh.37 Hindu Marriage Petition under Sec.13(B) between the respondent and the previous husband Pratik Vasantrai Manek and Exh.38 a decree dated 13.05.2016 obtained by the respondent of dissolution of the previous marriage and after examination and cross-examination of the respondent at Exh.47, the Family Court came to the conclusion that the provisions of the Hindu Marriage Act for declaring the marriage void could not have been invoked by the appellant as he had knowledge of the customary divorce which the respondent had obtained at the time of his marriage. The Family Court observed that by taking false shelter of obtaining a legal decree by the respondent Page 5 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined from her previous marriage for the purposes of facilitating the respondent to move to a foreign country, the whole mechanizm was nothing but abuse. The Family Court held that after having enjoyed married life for over a period of four years with the respondent and having accepted her as his wife though there was no legal decree of divorce, the present suit so filed by the petitioner to declare his marriage null and void was only with a view to take disadvantage of the legal provisions of the Hindu Marriage Act,1955.
3 Mr.N.V.Gandhi, learned counsel appearing for the appellant, would invite our attention to paragraphs 9 to 11 of the decision of the Family Court and submit that the findings of the Family Court were perverse. 3.1 Mr.Gandhi, learned counsel, would submit that admittedly, on the date when the appellant and the respondent got married on 30.05.2013, though there was a decree of Customary Divorce from the previous Page 6 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined marriage by the respondent, by a deed dated 05.02.2013, the fact that the legal consent decree was only obtained on 13.05.2016, indisputably establishes the appellant's case that on the date of the marriage i.e. on 30.05.2013, the respondents' previous marriage was subsisting. The Family Court, therefore, committed an error in not declaring the marriage of the appellant with the respondent as void.
3.2 Mr.Gandhi, learned counsel, would submit that from Exhs.36, 37 and 38 i.e. the Deed of Customary Divorce, the application for Sec.13(B) and the judgement dissolving previous marriage of the respondent were clearly proving that the appellant was entitled to a valid decree of divorce on the date of the marriage. Mr.Gandhi, learned counsel, would therefore submit that the Courts proceeded with a presumption that since the appellant had knowledge of divorce of the respondent at the time of his re-marriage, and therefore, he was taking false shelter of the provisions of the Hindu Marriage Act, 1955, Page 7 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined were misconceived.
3.3 Mr.Gandhi, learned counsel, would further submit that the Court has not properly appreciated the evidence of the appellant which nowhere suggested that the divorce by consent from previous marriage was applied for by the respondent on instructions of the appellant. Mr.Gandhi, learned counsel, would submit that, admittedly, the marriage was void and the Trial Court failed to appreciate that as per the provisions of the Hindu Marriage Act, the marriage being void, the observations that the appellant wanted to take shelter of the provisions of the Act, was contrary to the principle that there can be no estoppel against law. 3.4 In support of his submissions that there can be no estoppel against law, Mr.Gandhi, learned counsel, relied on the following decisions:
(I) In the case of Maharshi Dayanand University Vs. Surjeet Kaur, reported in 2010(0) AIJEL-SC 48597.Page 8 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025
NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined
(ii) In the case of Union Territory, Chandigarh Vs. Managing Society, Goswami, Gdsdc., reported in 1996(0) AIJEL-SC 33517.
(iii) In the case of H.S.Rikhy, Manohar Lal, P.Goyle Vs. New Delhi Municipal Committee., reported in 1961(0) AIJEL-SC 10402.
3.5 Mr.Gandhi, learned counsel, would further submit that, admittedly, from the memo of the application filed by the appellant, it was clear that it was his case that the Deed of Customary Divorce had no backing in law as it was not affirmed and supported by the members of the community. He would rely on a decision of the Division Bench (Coram: Hon'ble Mr.Justice J.B.Pardiwala & Hon'ble Ms.Justice Vaibhavi D. Nanavati) of this Court in the case of Bhartiben W/o. Amitbhai Vitthalbhai & D/o. Ravjibhai Kavani Vs. Amitbhai Vitthalbhai Sojitra, wherein, the Division Bench has held that a Customary Divorce is not a divorce legally enforceable. Mr.Gandhi, learned counsel, also relied on a decisions in Page 9 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined the case of Yamanaji H. Jadhav Vs. Nirmala., reported in (2002) 2 SCC 637 and in the case of Mahendra Nath Yadav Vs. Sheela Devi., reported in (2010) 9 SCC
484., which required legal decree in absence of proof of customary divorce.
4 Ms.Priyanka Sureshkumar Kotecha, respondent, has appeared in person. She submitted that if the prayer of the application filed before the Family Court is read, the only prayer was to set aside and declare the marriage between the appellant and the respondent void. There was no prayer to declare the Customary Divorce Deed of the previous marriage invalid.
4.1 Reading paragraphs 5 to 8 of the application, the Party-in-Person, Ms.Priyanka, would submit that it is incorrect for the appellant to state that he was unaware of the Customary Deed when it has specifically been so stated in the application. Reading the Memorandum of Marriage entered into between the parties on 30.05.2013, she would submit that even the Memorandum of Page 10 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined Marriage records that the appellant and the respondent, both were divorcees and that the appellant was aware that the respondent had entered into a customary divorce by the deed of 05.02.2013.
4.2 Ms.Priyanka, Party-in-Person, would therefore submit that the appellant is lying that he was not aware of the deed when the marriage had subsisted for over 12 years now and both, i.e. the appellant and the respondent were staying under one roof. Inviting our attention to page 551 of the paper book and photographs at Exh.75, she would submit that it is an admitted position that the appellant is in a relationship with whom he had previously entered into marriage and in fact, he was still continuing the relationship with the lady and out of that relationship there were two children. 4.3 The Party-in-Person, would then invite our attention to the civil application for additional evidence. She would harp upon the documents which are annexed to the civil application, namely, the documents of one Winny Page 11 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined Immigration & Education Services to indicate that the appellant had resorted to subterfuge of obtaining a decree of declaring the marriage void when in fact, he was aware of the previous marriage and the divorce through customary deed which was not even the subject matter of challenge. She would rely on the decision of the Hon'ble Supreme Court in the case of Sanjay Kumar Singh Vs. State of Jharkhand., in Civil Appeal No. 1760 of 2022 dated 10.03.2022, to support her submission that these documents produced by way of additional evidence be permitted to be taken into consideration which the Trial Court had considered in holding that the whole device of filing the petition by the appellant was to take false shelter under the provisions of the Hindu Marriage Act, 1955.
5 Having considered the submissions made by the respective parties, we may, first consider what the appellant had presented before the Family Court to get the relief of declaring the marriage on 30.05.2013 Page 12 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined entered into between the appellant and the respondent as void.
5.1 Reading of the application before the Family Court indicates that it was the case of the appellant that both, i.e. the appellant and the respondent were divorcees. It was the case of the appellant that the respondent had so informed him of the Customary Divorce Deed. However, such a Decree of Divorce through custom was not a recognized mode of separation. Reading paragraph 6 of the application indicates that a positive assertion was made that such a Deed of Divorce could not be said to be valid as it was signed by one member of each of the families and therefore had no legal backing. The application, however, went on to state that despite this, the appellant married the respondent. It was only on 13.05.2016, that the respondent obtained a legal Decree of Divorce under Sec.13(B) of the Hindu Marriage Act on 13.05.2016. The application for declaring the marriage dissolved by mutual consent which was filed by the Page 13 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined respondent under Sec.13(B) in context of the previous marriage was only filed on 03.11.2015. It was in this context that a prayer was made for declaring the marriage as void.
5.2 Essentially therefore, on reading the plaint filed before the Family Court, the prayer made for declaring the marriage void has to be read in context of the plaint. It was specifically pleaded by the appellant that since the Decree of Divorce obtained on 05.02.2013 by a Customary Divorce Deed was not a legal mode of divorce and since a proper legal valid decree of dissolution of the previous marriage was obtained by the respondent only on 13.05.2016, since on the date when the present parties got married i.e. on 30.05.2013, as the previous marriage of the respondent was subsisting, the marriage be declared as void.
5.3 We also note that based on the arguments and the evidences before the Family Court, the Family Court had framed issues at Exh.26 for determination of the case. Page 14 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025
NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined The issues read as under:
1) Whether plaintiff proves that first marriage of the defendant wife was in existence at the time of marriage with the plaintiff?
2) Whether plaintiff proves that the defendant wife took divorce decree of her first marriage from the competent court only after marrying the plaintiff?
3) Whether plaintiff proved that the defendant wife had not taken legal divorce in accordance with law and defendant's first marriage was in existence till the date of divorce decree passed by the competent Family Court?
4) Whether the defendant-wife proves that plaintiff has deserted her as alleged?
5) Whether the plaintiff is entitled to the relief as claimed for?
6) What order and decree?
5.4 We note that apart from the issue whether the Page 15 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined plaintiff proves whether the first marriage existed at the time of the marriage with the respondent, other issue that was framed was whether the appellant proves that the respondent wife had not taken legal divorce in accordance with law. Perusal of the judgement would indicate that the Family Court decided all the issues in the negative, except issue No.2, which was partly affirmative and issue No.4 in the affirmative.
5.5 If we peruse the reasonings of the Family Court, the Family Court, on appreciating the cross-examination of the appellant, opined that since the appellant had the knowledge of divorce of the respondent at the time of his re-marriage, he was taking false shelter of the provisions of the Hindu Marriage Act. The Family Court, further held that since the formality of legal divorce was subsequently completed on 13.05.2016, based on documents at Exhs. 37 and 38, these documents would be of no help to the petitioner. The Family Court further held that in view of the admission in the cross-examination Page 16 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined that the petitioner wanted to take the respondent to a foreign country, it is proved that it was on the appellants instructions that the respondent took a divorce decree to complete formality of divorce in a legal way. On Exh.36, which is a Deed of Customary Divorce, the Trial Court opined that it was a Divorce Deed entered into so as to facilitate production before the passport authority. Moreover, the Family Court held that now that the marriage had subsisted for a period of more than three years and the appellant had accepted the respondent as wife, a declaration that the marriage be declared as null and void cannot be granted.
5.6 We have been taken through the oral evidence of the appellant. Reading of the evidence would indicate that apart from his Examination-in-Chief, where he has stated that the marriage between the present respondent took place on 30.05.2013, it is the specific case of the appellant that though the respondent had informed him of the previous marriages' dissolution, no document was Page 17 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined produced to suggest a valid dissolution of marriage. It was his testimony that the Deed of Customary Divorce could not be said to be a valid mode of separation, and therefore, on the date when they got married, the marriage of the respondent was subsisting which was only dissolved on 13.05.2016.
5.7 Perusal of the cross-examination of this witness would indicate that, though, he admitted that he was aware of the customary divorce, nowhere reading of the cross-examination of this witness would give us a belief that the entire story of instructing the respondent to obtain a decree of divorce by mutual consent from the previous marriage was at his instructions. The documents, namely, E-mails and correspondences with Winny Immigration & Education Services, in no way would suggest that the subsequent legal decree for mutual consent was at the instructions of the appellant. 5.8 We note that the reasonings of the Trial Court, based on such presumptions in paragraph 9 and 10 of the Page 18 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined judgement are obviously perverse. In fact, if the examination and cross-examination of the parties are perused, except allegations and counter allegations made against each other, the fact that the marriage of the respondent with the previous husband was subsisting when the present appellant and the respondent got married cannot be disputed.
6 The Trial Court, therefore, clearly fell in error in opining that the present application was with a view to take a false shelter of the legal provisions. Obviously, in light of the Hon'ble Supreme Court's decisions in the case of Maharshi Dayanand University (supra), Union Territory, Chandigarh (supra) and H.S.Rikhy, Manohar Lal, P.Goyle (supra), when it is an undisputed proposition of law that when a previous marriage subsists, a subsequent marriage is void, there cannot be any estoppel against the operation of law. From the facts of the case on hand, it is apparent that when the appellant got married on 30.05.2013, the respondent's Page 19 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined previous marriage had not been dissolved and subsisted till a valid decree of divorce was obtained on 13.05.2016. 6.1 That brings us to the second limb of the argument which the party-in-person has so vehemently made, inasmuch as, no prayer was made by the appellant with regard to declaring the Deed of Customary Divorce as bad. Reading of the plaint as a whole, which it must be so read, indicates that it was a specific pleading of the appellant before the Family Court that the Deed of Divorce through custom was not legally binding as it was not recognized by law. It was in this very context that the Trial Court framed the issues, including the one with regard to whether that the dissolution of the previous marriage was legal and valid. Obviously therefore, it was incumbent upon the Trial Court to consider and decide the issue of the validity of the Customary Divorce Deed. 6.2 Unfortunately, the Trial Court has misdirected itself in deciding the issues jointly and ousting the appellant only on the ground that there was no valid reason for Page 20 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined declaring the marriage void on the ground that the action was to take false shelter of the provisions of the Hindu Marriage Act, 1955. This, as we have in the earlier part of our decision, found to be misconceived. 6.3 Even as per the decision in the case of Bhartiben W/o. Amitbhai Vitthalbhai (supra), divorce through customary deeds is not a recognized mode of obtaining a Decree of Divorce. That has been discussed by the Division Bench in paragraphs 6 to 13 of the decision, which read as under:
"6. At this stage, we would like to refer Section 29(2) of the Hindu Marriage Act, 1955, which reads thus:
"29(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 solemnized before or after commencement of this Act."
7. At this juncture, it would also be apposite to refer to 23rd Edition, Hindu Law, published by Sir Dinshaw Fardunji Mulla, explaining the realm of Section 29(2) of the Hindu Marriage Act, 1955, which reads thus:
"Divorce was not known to the general Hindu law but then in certain communities, divorce was recognised by custom and the courts upheld such custom when it was not opposed to Page 21 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined public policy. The scheme and object of the present Act is not to override any such customs, which recognised divorce, and effect is given to the same by the saving contained in this sub- section. It is not the necessary for the parties in any such case to go to the Court to obtain divorce on the ground recognised by custom. The custom must, of course, be a valid custom. There exists a custom among the Sikh Jats of Amritsar district, under which a husband can dissolve his marriage even otherwise than under the provisions of the present Act. When the material on record does not show the existence of a custom of divorce on the basis of which the purported deed of divorce is entered into and custom has not even been pleaded, divorce cannot be granted on the basis of custom."
7.1 The Supreme Court in case of Yamanaji H. Jadhav vs. Nirmala reported in AIR 2002 SC 971 has held in paragraph 7, which reads thus:
"7. In the view that we are inclined to take in this appeal, we do not think it is necessary for us to go into the contentions advanced by the learned counsel for the parties in this case, because we find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong to. As per the Hindu Law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom.Page 22 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025
NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined 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. Thus 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. Therefore, 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. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence and was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true in the courts below that the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such Page 23 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined customary divorce is properly established in a court of law. In our opinion, even though 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 recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case. It is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26th of June, 1982 has come into existence and which is the subject matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the process of or outside court) in their community and then test the validity of the divorce deed dated 26.6.1982 based on the finding arrived at in deciding the new issue."
7.2 The Supreme Court in case of Subramani and others vs. M. Chandralekha, reported in AIR 2005 SC 485, has held in paragraph 15, which reads thus:
"15.....The courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable to divorce in the community to which the parties belong. As per the Hindu law administered by Page 24 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined 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. Thus, such a custom being an exception to the general law of divorce ought to have been specially pleaded and establish by the party propounding such a custom since the 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. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleading 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."
7.3 Further, the Supreme Court in case of State of M.P and another vs. Dungaji (D) by Lrs. And another., reported in AIR 2019 SC 3665 has held in paragraphs 8 and 9, which reads thus:
"8. Now, so far as the impugned judgment and Order passed by the High Court declaring and holding that the marriage between Dungaji and Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the Act 1960 and therefore after divorce, the property inherited by Kaveribai from her mother cannot be treated to be holding of the family property of Dungaji for the purposes of determination of surplus area is concerned, at the outset, it is required Page 25 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined to be noted that as such there were concurrent findings of facts recorded by both the Courts below specifically disbelieving the dissolution of marriage between Dungaji and Kaveribai by way of customary divorce as claimed by Dungaji-original plaintiff. There were concurrent findings of facts recorded by both the Courts below that the original plaintiff has failed to prove and establish that the divorce had already taken place between Dungaji and Kaveribai according to the prevalent custom of the society. Both the Courts below specifically disbelieved the Divorce Deed at Exhibit P5. The aforesaid findings were recorded by both the Courts below on appreciation of evidence on record. Therefore, as such, in exercise of powers under Section 100 of the CPC, the High Court was not justified in interfering with the aforesaid findings of facts recorded by both the Courts below. Cogent reasons were given by both the Courts below while arriving at the aforesaid findings and that too after appreciation of evidence on record. Therefore, the High Court has exceeded in its jurisdiction while passing the impugned Judgement and Order in the Second Appeal under Section 100 of the CPC.
9. Even on merits also both the Courts below were right in holding that Dungaji failed to prove the customary divorce as claimed. It is required to be noted that at no point of time earlier either Dungaji or Kaveribai claimed customary divorce on the basis of Divorce Deed at Exhibit P5. At no point of time earlier it was the case on behalf of the Dungaji and/or Kaveribai that there was a divorce in the year 1962 between Dungaji and Kaveribai. In the year 1971 Kaveribai executed a Sale Deed in favour of Padam Singh in which Kaveribai is Page 26 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined stated to be the wife of Dungaji. Before the Competent Authority neither Dungaji nor Kaveribai claimed the customary divorce. Even in the Revenue Records also the name of Kaveribai being wife of Dungaji was mutated. In the circumstances and on appreciation of evidence on record, the Trial Court rightly held that the plaintiff has failed to prove the divorce between Dungaji and Kaveribai as per the custom."
8. We shall first address ourselves on the issue whether there was a recognized custom in the Leuva Patel Community to dissolve a marriage by way giving divorce to each other, privately before the Panchas and if so, whether the appellant - plaintiff could be said to have led appropriate evidence in that regard.
9. In the aforesaid context, it is necessary to summarize the law laid down by the Supreme Court in the case of Yamanaji (supra). It has been held therein that in accordance with the Hindu Law administered by the 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 the 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 such custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. The Supreme Court held that there was an obligation on the trial Court to have framed an issue whether there was proper pleadings by the parties Page 27 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined 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. In the said case, the Supreme Court 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 the divorce by consent is also not recognizable by a Court unless specifically permitted by law.
10. The Supreme Court in the case of Jairam Somaji More vs. Sindhubai w/o. Jairam More and others, reported in 1993 (3) Mh.L.J., 872 after considering section 4 and section 29(2) respectively of the Hindu Marriage Act, 1955 has held that the custom cannot be only pleaded but it has to be proved that the parties were entitled for a customary divorce. It has 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. The Supreme Court in the case of Rameshchandra Rampratapji Daga vs. rameshwari Rameshchandra Daga, reported in (2005) 2 SCC 33 has taken a similar view.
11. The Supreme Court in the case of Subramani & Ors (supra) has held that in the absence of any pleadings that the marriage between the husband and the wife could be dissolved in their community under custom and in the absence of any satisfactory evidence led in to prove the custom prevalent in the community or the procedure to be followed for Page 28 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined dissolving the marriage, it cannot be held that the 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. The 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.
12. The Supreme Court in the 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. The 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 the 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.
13. It is well settled principles of law as 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 our view, in the absence of any proper pleadings on behalf of the plaintiff in the plaint about the then alleged existing custom and customary divorce in the Leuva Patel Community, the plaintiff could not have led any oral evidence on the said issue."
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NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined 6.4 Even in the case of Yamanaji H. Jadhav Vs. Nirmala (supra), the Hon'ble Supreme Court has 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 always was considered to be a sacrament with only exception where it is recognized by custom. Even in absence of the plea of customary divorce, unless and until such customary divorce is established in a Court of Law, it was open for the Court to take a call on the validity of such Customary Divorce. The Trial Court had an obligation to have taken a decision on this when an issue was so framed. Paragraph 7 of the judgement reads as under:
"7. The issues are interconnected and looking to the documentary as well as oral evidence produced by both the parties, instead of separately discussing all the six issues, for the sake of convenience, all the issues are discussed simultaneously." 7 In light of the aforesaid, the judgement and decree dated 15.10.2022 passed by the learned Principal Judge, Family Court at Rajkot in Family Suit No.285 of 2017 is hereby quashed and set aside. The appeal is allowed, Page 30 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025 NEUTRAL CITATION C/FA/2672/2023 CAV JUDGMENT DATED: 20/03/2025 undefined accordingly.
In light of the final order that we pass in this appeal, the connected civil applications filed by the respondent - party-in-person, namely, Civil Application for Additional Evidence, Civil Application for proper action under Sec.151 of the CPC and Civil Application for Maintenance pendent lite under Sec.24 of the Hindu Marriage Act, 1955, stand disposed of accordingly without orders.
(BIREN VAISHNAV, ACJ) (HEMANT M. PRACHCHHAK,J) BIMAL Page 31 of 31 Uploaded by BIMAL B CHAKRAVARTY(HC01089) on Thu Mar 20 2025 Downloaded on : Thu Mar 20 22:38:21 IST 2025