Bombay High Court
Jairam Somaji More vs Sindhubai And Ors. on 14 September, 1999
Equivalent citations: I(2001)DMC407
Author: S.S. Parkar
Bench: S.S. Parkar
JUDGMENT S.S. Parkar, J.
1. This writ petition arises in the maintenance proceedings adopted by the wife-respondent No. 1 under Section 125 of the Code of Criminal Procedure.
2. The petitioner and the respondent No. 1 were married some time in the year 1970 as per the Hindu Law. They cohabited until 4th December, 1979, when they separated by a registered Deed of Divorce which is at Exhibit 22. From the said marriage admittedly a daughter was born who is residing with the petitioner-husband. It is the case of the respondent-wife that the petitioner repented for the separation which was effected between them by the Deed of Divorce dated 4.12.1979 and, therefore, there was reunion between them and they entered into an agreement (Exhibit 19) executed on 18th November, 1980. The wife stayed with the petitioner for a period of 1 and1/2 years after the said reunion and thereafter she was driven away from the matrimonial home by the petitioner and hence again went back to her father's house in village Dhulgaon, Tal. Yeola, Distt. Nasik. Their matrimonial house was in village Thergaon, Tal. Niphad, Distt. Nasik. During her second phase of cohabitation with her husband, she had conceived and given birth to a male child by name Bhausaheb who is respondent No. 2 to this petition. After she was driven out from the matrimonial house the petitioner did not maintain the respondents i.e. wife and son Bhausaheb and, therefore, she filed Criminal Misc. Application No. 62 of 1985 in the Court of JMFC, Yeola on 23rd April, 1985 claiming maintenance for herself and son.
3. The said application was opposed by the petitioner-husband. Parties had led evidence before the Trial Court. On behalf of the wife she had examined herself and two witnesses i.e. her own father by name Kashinath as A. W. 2 and one Bhikaji Sathe as A.W. 3 who was an independent witness. On behalf of the petitioner only he himself was examined.
4. After considering the evidence on record the trial Magistrate rejected the application on the ground that the divorce had taken place between the parties and, therefore, unless she proves subsequent reunion as wife, she was not entitled for maintenance. Similarly son Bhausaheb was not granted maintenance on the ground that the paternity from the petitioner was not proved. The said application, therefore, was dismissed by the judgment and order of the learned JMFC dated 31st August, 1989.
5. The wife took the matter to the Sessions Court by filing Criminal Revision Application No. 28 of 1990. The said revision application was heard by the learned Addl. Sessions Judge, Nasik, who after considering the entire evidence on record allowed the revision application and also the application for maintenance by granting to the wife maintenance at the rate of Rs, 75/- per month and Rs. 50/ - per month to the son Bhausaheb from the date of the original application i.e. 23rd April, 1985. The said order is impugned in the present petition by the petitioner-husband.
6. It may be mentioned at this juncture that when this matter had reached for hearing before Dr. Justice Partibha Upasani on 3rd May, 1989, the Court had made suggestion to undertake DNA test by the parties since the husband has disowned the paternity of the child. Mr. Kankaria for the petitioner had readily agreed to the suggestion while Mr. Patil, Advocate for respondent-wife had taken time to consult his client. Today when the matter reached for hearing both the sides agree to undertake the DNA test of the child for the purpose of ascertaining the paternity of the child from the petitioner-husband. However, none of them was agreeable to bear the cost of the DNA test and, therefore, the matter is now today heard on the merits as per the evidence on record.
7. Mr. Kankaria, learned Advocate appearing for the petitioner contended that the agreement dated 18.11.1980, on which date it was alleged that the parties had reunited and stayed together, is not proved. He submitted that unless the said document is proved, neither the wife nor the child are entitled to claim maintenance from the petitioner. From the record he pointed out to me the agreement (Exh. 19) which, according to him is shown to have been signed in English by the petitioner-husband who has studied only up to 4th to 5th Standard. He says that the execution of the said document was denied by the petitioner-husband. Secondly he contended that the agreement (Exh. 19) seems to have been entered into between Kashinath Pawar i.e. the father of the respondent-wife and the petitioner but the signature of the father of the wife does not appear but the thumb impression of the wife is subscribed. The said agreement is also attested by witness Bhikaji Sathe who is examined on behalf of the wife as A. W. 3. He further submitted that unless and until the said agreement is proved, no credence can be given to the evidence of the witnesses. He further contended that the Deed of Divorce (Exh. 22) executed on 4.12.1979 mentions that the divorce has taken place as per the custom in the community and, therefore, the divorce was complete and unless the wife proves the subsequent agreement and her cohabitation, the child cannot be said to be entitled for maintenance.
8. It is not in dispute that the marriage has taken place as per the Hindu Law which is applicable to the parties. Once the parties are married, the same cannot be dissolved except by decree of divorce passed under the provisions of the Hindu Marriage Act, 1955. The said Act also provides for divorce by mutual consent under Section 13-B. The reliance on behalf of the husband on the alleged Deed of Divorce (Exh. 22) will not be of any help to the petitioner. After the coming into force of the Hindu Marriage Act, 1955 the parties to whom the said Act is applicable are governed by the provisions of the said Act. By Section 4 any custom or usage prevalent or in force immediately before the commencement of that Act shall cease to have any effect after the Act of 1955 came into force. No doubt Section 29(2) of the Act of 1955 saves the customary right. However it is well settled that the custom also cannot be only pleaded but it has to be proved that the parties were entitled for a customary divorce. In the aforesaid state of law the Deed of Divorce dated 4.12.1979could not have the effect so as to dissolve the marriage between the parties unless customary divorce between the parties was pleaded and proved which is not the case here. The second position to be considered is whether the parties had cohabited together after the agreement (Exh. 19) was executed on 18.11.1980. As per the said agreement the parties had cohabited and, therefore, on that date the petitioner-husband had taken wife and son to his house where they stayed together for a period of 1 and 1/2 years when she was driven out. According to the wife after she went to stay with her husband she learnt that the petitioner had married another woman by name Draupadi from whom he had already one child and she had gone for delivery of her second child from the petitioner. It cannot be gainsaid 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 dated 4.12.1979 was not recognised by law, the parties continued to be under marital bond.
9. In the aforesaid circumstances, the question is of appreciation of evidence. On behalf of the wife, apart from the writing dated 18.11.1980 (Exh. 19), she has examined not only her father apart from herself, but also Bhikaji Sathe an independent witness who was also attesting witness to the writing dated 18.11.1980. The Sessions Court has, after appreciating the oral evidence led by the parties, came to the conclusion that the respondent-wife did cohabit with the petitioner-husband from 18.11.1980 for a period of 1 and V2 years when the respondent No. 2 son was born. In that case the presumption under Section 112 of the Evidence Act becomes applicable as the birth of the disputed child had taken place during the subsistence of marriage between the parties and the evidence shows that during the relevant period the husband and wife were staying together. The petitioner-husband has not led independent evidence to disprove the evidence led on behalf of the wife about the cohabitation. This Court would not in exercise of powers under Article 227 of the Constitution of India reappreciate the evidence unless it is shown that the Sessions Court's reasoning is perverse or has no foundation in the evidence. All the three witnesses, i.e. the wife, her father Kashinath A.W. 2 and her another witness Bhikaji Sathe A.W. 3 have stated that after the agreement in the year 1980 the wife went to the house of the petitioner and stayed with him for a period of 1 to 2 years and thereafter she came back to her father's place along with the respondent No. 2. No reason has been shown to discard that evidence. Even the petition is based mainly on the challenge to the agreement dated 18.11.1980.
10. In the aforesaid circumstances, there is no case made out for interference by this Court with the impugned order passed by the learned Addl. Sessions Judge, Nasik on 17.3.1992 in Criminal Revision Application No. 28 of 1990. In the result the order of the Addl. Sessions Judge, Nasik is confirmed and the petition is dismissed. Rule is discharged.