Delhi District Court
Sh. Mohan Lal Meena vs Smt. Sheela Meena on 7 September, 2018
IN THE COURT OF NAVEEN K. KASHYAP,
SENIOR CIVIL JUDGE-CUM-RENTCOLLER,
NORTH-WEST DISTRICT, ROHINI COURTS COMPLEX, DELHI.
(This is more than 7 years old matter)
Civil Suit no: 58405/16
Sh. Mohan Lal Meena
S/O Sh. Late Sh. Bishan Lal Meena,
(Tribe Meena),
R/o. Near the house of Dr. Maharwal,
Truck Union, Gangapur City.
.... Plaintiff
Versus
Smt. Sheela Meena
D/O Sh. Kamalram Meena,
R/O DA 101-C, Hari Nagar,
New Delhi.
Presently working as Primary Teacher,
Kendriya Vidhalya, Air Force Station
Chandi Nagar, Distt. Baghpat, U.P.
... Defendant
Date of Institution : 17.12.2008
Date of pronouncing judgment : 07.09.2018
Decision : Suit Dismissed.
CS No. 58405/16
Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 1 of 16
FINAL JUDGMENT
"About the present suit it may be said : marriage is made in
heaven, thus not easy to break".
The Facts :
1.The present suit is for declaration of dissolution of marriage of plaintiff, Sh. Mohan Lal Meena with the defendant Smt. Sheela Meena.
2. Before proceeding further, it is pertinent to note that originally the present suit was filed before the Ld. Civil Judge, Senior Division- cum- Additional Chief Judicial Magistrate, Gangapur City, in Rajasthan. But subsequently by an order dated 05.02.2010 by Hon'ble Supreme Court in transfer petition (civil) No. 497/2009 filed by the present defendant, present suit was directed to be transferred to the court of Civil Judge, Rohini courts, Delhi. Accordingly, the present suit was transferred and earlier assigned to Additional Senior Civil Judge, in view of order dated 03.11.2010 passed by Ld. District Judge-VIII Sh. S.K. Sarwaria, Rohini Courts, Delhi. Ultimately, it is assigned to the court of undersigned as is reflected in earlier order dated 23.09.2017.
3. The version of the plaintiff is that plaintiff is a permanent resident of Gangapur City and has his ancestral house near the house of Dr. Meharwal, Truck Union, Gangapur City, U.P. That the plaintiff is at present working as Scientific Officer in Ministry of Human Resources and Development, New Delhi and continued in Govt. Service since 1994 and prior to 1994 he was in private service.
That both the parties belong to Meena Tribe which is a CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 2 of 16 Scheduled Tribe, therefore, the provisions of Hindu Marriage Act are not applicable on them and dispute related to marriage are disposed of in accordance with the social customs, usage and traditions. That those negotiations about the marriage of the plaintiff were initiated by his elder brother Sh. Mool Chand Meena, who had accepted this relationship on behalf of the plaintiff, since father of the plaintiff had expired in 1991.
That on 15.05.2002, the marriage between the parties was solemnized as per the customs, usage and traditions of the Meena Scheduled Tribe. That after the marriage the defendant went to Gangapur City as a bride and stayed there for four days. That on seeing the simple living conditions of plaintiff house the defendant got depressed, sad and sullen and taunted the plaintiff. That the plaintiff encouraged her with all love and affection that over a period of time everything will be set all right. That on several occasions the defendant insulted and abused the plaintiff and his relatives. That after marriage the plaintiff motivated her for further studies and incurred heavy expenses on her M.A. That out of this wedlock two sons namely Parash and Mohit @ Shubham born. That the defendant got appointed as a primary teacher in May, 2005.
That at the time of marriage the plaintiff used to stay on rent in Vinod Nagar, Delhi, but in order to satisfy her the plaintiff purchased a house at Delhi out of his personal savings. That from the very beginning the parents and relatives of the defendant had their eyes on the earnings of the defendant and they had extorted money from the plaintiff from time to time.
That after 22.12.2017, the defendant under the influence of her parents took the children along with her and left the plaintiff CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 3 of 16 alone with and resolved to never came back to him . That on 23.12.2017 when the plaintiff talked to defendant, she clarified that she had terminated all her matrimonial relations with him. That on the same day the plaintiff called for the Panchayat of his community which was attended by Sh. Hari Singh Patel, Harkesh Patel, Mohan Lal Meena, Mool chand Meena, Thandi Ram Meena Patel, Badam Patel, Nandan Patel, Mahesh Patel, Madan Lal Meena. That thereafter the said Pach as per the social customs, usage and rituals took a decision that initially two panchs would go to Delhi and talk to the defendant and her parents and asked them to come and appear before Panchayat in Gangapur City.
That On 25.12.2017 Harkesh Patel, Mool Chand Meena and the plaintiff himself visited the house of the defendant and in the presence of her parents, Sh. Harkesh Patel informed the defendant and her family members about the decision taken by the Panchayat. But the family members of the defendant got excited and said that the plaintiff has died for them and they have no relation with him and they insulted the Panchs.
That on 26.12.2017 the panchs talked to the defendant on her telephone but she refused to appear before the Panchayat and also refused to handover the children and told that she has severed all her relations with the plaintiff and his family members. Even Sh. Kamal Ram, father of the defendant supported the defendant. Thereafter, the panchayat after discussing the matter and considering the age and the fact that there is no likelihood of any reconciliation between the parties decided that the marriage between the parties be dissolved so that both the parties can lead their further life freely, remarry or enter into NATA relationship as per their own wishes. Accordingly, the panchs as per the prevalent CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 4 of 16 tradition in Meena Tribe dissolved the marriage between the parties which was intimated to the defendant by the panchs. That the panchs have also decided that in case of remarriage of defendant, if she returns children to plaintiff will not claim any alimony. That the defendant in case of remarriage will have to pay alimony and the penalty as per the decision of the Meena Panchayat.
That the marriage between the parties stands dissolved w.e.f. 26.12.2017 as per the customary usage and tradition prevailing in Meena Tribe. That since the plaintiff and defendant both are Govt. servants, it is necessary to have declaration from the court in respect of dissolution of marriage so that none of the parties face any legal problem in future.
As such, the plaintiff filed the present suit praying that a decree of declaration be passed thereby declaring that marriage between the plaintiff and defendant stands dissolved on 26.12.2007 as per the social custom, usage and tradition of Meena Community.
4. That after service of summons the defendant appeared and filed the written statement. In the written statement in nutshell, it is stated that the plaintiff has concealed the material facts and has filed the present suit just to harass and humiliate the defendant. That the present suit filed by the plaintiff is a misused and abuse of process of law and same is not maintainable. It is stated that when the summons were received from the Civil Judge, Gangapur City, then only it was revealed that the plaintiff is relying upon the alleged Panchayat documents, which was not received by the defendant along with the petition. It is further stated that no such Panchayat was ever called for or attended by any such person.
CS No. 58405/16Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 5 of 16 That no such authority rests with any panchayat as per the social, custom, usage and rituals to took any decision on behalf of the parties. It is further stated that no such communication was ever took place between the panchs and the father of the defendant. It is further claimed that relationship between the parties is governed by the Hindu Marriage Act. Further, the contents of the plaint were denied in detail by the defendant. But the fact that the plaintiff and defendants belongs to Meena Caste/ community is not denied. Further the factum of marriage between the parties is not in dispute.
5. Replication filed by the plaintiff on 12.08.2010 to the Written Statement of the defendant, wherein he reaffirmed and reiterate the contents of the plaintiff and denied the allegations made by the defendant in her written statement.
6. Ultimately, vide order dated 09.03.2011, the following issues were framed :-
ISSUES No.1:- Whether the parties are governed by the customary laws and usage prevailing in Meena Tribe and not by the provisions of Hindu Marriage Act as averred in the plaint? OPP.
ISSUE No.2:- Whether the marriage between the parties has been dissolved on 26.12.2007 as per the customs, usage and traditions of Meena Tribe as averred in the plaint? OPP ISSUE No.3 :- Whether the suit is without any cause of action, as alleged in the written statement? OPD Issue No-4: Whether plaintiff is entitled for decree of declaration as sought? OPP Relief.
7. The plaintiff in support of his case has examined in total 11 CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 6 of 16 witnesses, including himself.
8. PW-1 Sh. Jagjit Kumar is a summoned witness, who brought certain medical record .
PW-2 Sh. P.R. Sehgal is also summoned witness from AMS Preparatory school. He produced certain school record regarding admission of Master Parag. He was even cross-examined by the defendant side.
PW-3 Dr. Saroj Kumar Jaiswal is also a summoned witness who brought certain record relating to medical certificate of defendant Ms. Sheela. This witness was even cross-examined by the defendant side.
PW-4 Sh. O.P. Sharma is also a summoned witness who brought certain record relating to medical leave obtained by the defendant Ms. Sheela. He was even cross-examined by the defendant side.
PW-5 Sh. Baldev Raj Dua is a bank manager of SBI Bank and he is also a summoned witness who brought certain record relating to bank account of plaintiff and cheque of Rs. 2,00,300/-. He was even cross-examined by the defendant side.
PW-6 Sh. Mohan Lal Meena (who is a different person with same name as of the plaintiff), PW-7 Sh. Bacchu Singh Meena, PW-8 Sh. Moolchand Meena and PW-9 Sh. Hari Singh Meena, all tendered their examination in chief by way of affidavit Ex. PW-6/1, Ex. PW-7/A, Ex. PW-8/A and Ex. PW-9/A respectively. They are the witness/participants/Punch to the alleged Panchayat proceedings in question claimed by them and the plaintiff. They supported case of the plaintiff in their such examination in chief by way of affidavit. All such witnesses are cross-examined at length CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 7 of 16 by Ld. Counsel for defendant.
PW-10 is the plaintiff Sh. Mohan Lal Meena himself. He also tendered his examination in chief by way of affidavit Ex. PW-10/A and proved his over all case by such evidence. In such evidence, he repeated the stand taken by him in original suit. He was also cross-examined at length by Ld. Counsel for the defendant.
Further, plaintiff got examined one Sh. Puneet Sharma from ICICI Bank, as PW-11. But he only deposed that the summoned record has already been destroyed as the loan has already been closed.
9. Thereafter, the matter was listed up for defendant's evidence. Defendant examined herself as DW-1. She also tendered her examination in chief by way of affidavit Ex. DW-1/A and proved her over all defence by such evidence. In such evidence, she repeated the stand taken by her in written statement. She was also cross-examined at length by Ld. Counsel for the plaintiff.
Further, she got examined her mother Smt. Bhagwati Meena as DW-2 and her father Sh. Kamal Ram meena as DW-3. Both of them tendered their examination in chief by way of affidavit Ex. DW 2/A and, Ex. DW 3/A respectively. They supported case of the plaintiff in their such examination in chief by way of affidavit. Both of them were cross-examined at length by Ld. Counsel for the plaintiff.
10. In this case, both the sides have addressed oral arguments at length. Further, detailed written arguments/ submissions as well as additional submissions filed by the plaintiff side. Further, both sides relied on case laws also.
11. It must be noted at this stage that Ld. Counsels for both the sides argued very well. They ably assisted the court. Further, both sides CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 8 of 16 parties meticulously followed their case.
12.In nut shell, it is argued by counsel for plaintiff that plaintiff and defendant are not governed by Hindu Marriage Act, but by the customary law prevailing in Meena tribe community relating to marriage as well as divorce.
On the other hand it is in nut shell argued by Ld. Counsel for the defendant that the marriage in question was solemnized as per the Hindu rituals under the Hindu Marriage Act. That in any case no customary law as recognized under law is proved on record by the plaintiff. That no Panchayat proceedings took place at all for declaring alleged divorce between the parties. That as such no ground for present declaration is made out.
The Findings :-
13. I have heard both the sides and gone through the record, including the written arguments/ additional arguments as well as case laws filed by the parties. My issue-wise findings are as follows:
ISSUE No.3 :- Whether the suit is without any cause of action, as alleged in the written statement? OPD
14. As per the allegations of defendant the alleged Panchayat proceedings is a concocted story. But it is the case of plaintiff, on the other hand, that they are governed by customary law prevailing in Meena community and as per their custom divorce can be effected in this manner by the Panchayat of the community. It is further deposed by plaintiff and PW-5 to 9 that CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 9 of 16 such Panchayat proceedings took place. Thus, it cannot be said that there is no cause of action at all having regard to the nature of pleading and evidence available on record. But it is all together a different and subsequent matter whether plaintiff is able to prove his cause of action during trial or not. As such, accordingly issue No.3 is decided in favour of plaintiff and against the defendant.
ISSUES No.1:-Whether the parties are governed by the customary laws and usage prevailing in Meena Tribe and not by the provisions of Hindu Marriage Act as averred in the plaint? OPP and ISSUE No.2:- Whether the marriage between the parties has been dissolved on 26.12.2007 as per the customs, usage and traditions of Meena Tribe as averred in the plaint? OPP
15.Onus of proof of both such issues is upon the plaintiff. Further, as these two issues are inter connected, therefore, both are taken up together.
16. Before proceeding further, it would be fruitful to note that as to who is a "Hindu" for the purposes of the applicability of the Hindu Marriage Act, is a question of law, which need to be determined in this suit.
Section 2 of the Act specifies the persons to whom such Act is applicable. Clauses (a), (b) and (c) of Sub-section (1) of Section 2 make the Act applicable to a person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj and to persons who is a Buddhist, Jaina or Sikh by religion. It is also applicable to any other person domiciled in the territories of India who is not a Muslim, Christian, Parsi or Jew by religion.
CS No. 58405/16Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 10 of 16 The applicability of the Act is, therefore, comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims, Christians, Parsis or Jews by religion.
17. Admittedly both the parties to present suit are not Muslims, Christians, Parsis or Jews by religion. Further, at this stage it may also be noted that in this suit parties admittedly belongs to Meena Tribe/ community, which is a Schedule Tribe as per the provision of law. As such, in the absence of a notification or order under Article 342 of the Constitution of India, they are deemed to be Hindus. Even if a notification is issued under the Constitution, the Act can be applied to Scheduled Tribes as well by a further notification as mentioned in Sub-section (2) of Section 2 of the Act.
18. But no such notification, as find mention in such sub-Section 2 of Section 2 of the Act is placed or proved on record in the present suit.
19.But having observed so, in the peculiar facts and circumstances of present suit and the stand taken by the parties, it may further be noted that although it is held that both the parties are held to be covered by the protection of sub-Section 2 of Section 2 of the HMA, but still what would be the effect , if any, as it is claimed by the defendant side that marriage between plaintiff and defendant took place not as per their customary law but as the General Provision of Hindu Marriage Act applicable to Hindus. On the contrary, it is claimed, as already noted above, by plaintiff side that even the marriage took place as per the customary laws applicable to Meenas.
20. In this regard the evidence led by parties needs to be examined. It may be noted that as far as plaintiff's witnesses are concerned, CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 11 of 16 apart from plaintiff/ PW-10 himself, other witnesses did not depose about the marriage aspect, which is required to be looked into at this stage. It is deposed by plaintiff/PW-10 that their marriage was solemnized as per the customs, usage and traditions of Meena Scheduled Tribe. But on a bare perusal of examination-in-chief of plaintiff himself, apart from such bald statement, no details are given even by the plaintiff as to what are such customs, usage and traditions relating to marriage of Meena community by which such marriage is performed and how they are different from the Hindu Marriage under the Hindu Marriage Act.
21.But instead of standing on its own feet, the plaintiff is relying upon the cross-examination of DW-2 in support of his contention that the marriage was performed as per their customary law. It must be remembered that onus of proof of present issue is upon the plaintiff thus, initial burden is upon the plaintiff to discharge by cogent evidence in this regard, which he failed to lead.
22. On the other hand, it is deposed by the defendant/ DW-1 that their marriage took place as per the provision of Hindu Marriage Act. In fact, DW-1 has placed on record photograph Ex. DW 1/1 to Ex. DW 1/17 relating to ' tikka' and 'marriage 'ceremony. It may be noted at this stage that mode of proof of the same is not objected to by the plaintiff side. On a bare perusal of such photographs it is clear that there is a exchange of garland, 'phera' ceremony etc. which are performed in a Hindu Marriage. It is further deposed by PW-2 that there is a 'kanyadan' ceremony which also took place. Further, during their cross-examination, the DW- 2 mentioned about certain ceremonies prevalent in the Meena community. But on the basis of evidence on record and based on preponderance CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 12 of 16 of probabilities, it is held that the marriage in question took place according to Hindu Marriage Act and plaintiff has failed to prove on record that their marriage took place as per customary law of Meena Tribe. In fact no details of such marriage ceremony in Meena community is proved on record by the plaintiff.
23. As such it is held that the plaintiff and defendant are held to be covered under the exception of sub-Section 2 of Section 2 of the Hindu Marriage Act. As such issue No.1 is decided in favour of plaintiff and against the defendant, but with the rider that it is held that their marriage itself was solemnized under the provision of Hindu Marriage Act and not as per their customary law.
24. Now, at this stage it may also be noted that, the expression "custom and usage" has been defined under Section 3 (a) of the Hindu Marriage Act as:
"the expression 'custom' and 'usage' and 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:
Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family."
25. Thus, for custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is :
i)ancient,
ii)certain and
iii) reasonable.
26. Thus, the first and foremost condition, of claiming benefit of CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 13 of 16 customary law is that same need to be pleaded specifically by the plaintiff in present suit. But, on a bare reading of present suit it can be observed that in his plaint, the plaintiff only stated that relationship between the plaintiff and the defendant turned sour over a passage of time and as such a Panchayat of the community was called, who ultimately dissolved the marriage between the parties on 26.12.2007. Thus, such plaint nowhere gives even the basis details nor fulfill the three basic conditions which were required to be pleaded ie. i)ancient, ii)certain and iii) reasonable. The plaintiff case is based entirely upon alleged custom. In these circumstances, it was incumbent upon the plaintiff to state with precision and clarity what that custom was. Unfortunately this obvious requirement was not acted upto. The best case of the plaintiff seems to have been simply this that when a matter like this was brought to the notice of the Panchayat and the Panchayat so thought fit, it could grant a divorce to any of the parties concerned. It is held by this court that such vague pleadings fails to establish the custom relating to divorce on which he relies.
27. Thus, in the absence of pleadings it is a cardinal rule that there cannot be any evidence. In other words evidence cannot be beyond pleadings. Therefore, the evidence of so called Panch / witness to such alleged divorce proceedings, i.e. PW -6 to PW-10 cannot be looked into as the same is beyond pleading.
28. Further, it is pertinent to note at this stage that it is a basic law of interpretation that there are two sources of law viz. primary source and secondary source. It is further well settled and beyond any dispute that books/ articles on a subject like the custom of divorce in Meena tribes falls under second source of law. In any case, in CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 14 of 16 view of bare Act and interpretation of the same by courts, such books cannot be given priority.
29.Thus it is held that the plaintiff has failed to prove that there is any custom of granting divorce in Meena community by holding a Panchayat like the one alleged in present suit by the plaintiff side. Further it must be remembered that custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence.
30.Further, even for the sake of arguments, if it is presumed that divorce is being granted in Meena community by the Panchayat, still it is not proved at all that such practice/ custom is ancient and being followed from time immemorial and that to continuously without any break. Thus, it is held that in any case, the conditions of Section 3 of Hindu Marriage Act are not satisfied in present suit. Therefore, such customs, even if presumed to exist at present, cannot be given any legal recognition.
31. As such, it is held that marriage between the plaintiff and defendant is not recognized by law to be dissolved on 26.12.2007, as same do not fulfill the requirement of Section 3 of Hindu Marriage Act. Accordingly, issue No.2 is decided against the plaintiff and in favour of defendant.
Issue No-4: Whether plaintiff is entitled for decree of declaration as sought? OPP
32. It is already held above that the issue No.2 is decided against the plaintiff and it is held that marriage between the parties is not dis- solved on 26.12.2007. In view of the same there is no question /occasion to grant the declaration as sought in the present suit CS No. 58405/16 Mohan Lal Meena Vs. Smt. Sheela Meena Page No. 15 of 16 which is subject matter of issue No.4. Accordingly, issue No.4 is decided against the plaintiff and in favour of defendant.
33. As such in view of the above findings the present suit is dis- missed. File be consigned to Record Room.
Digitally signed by NAVEEN NAVEEN KUMAR
KUMAR KASHYAP
Date: 2018.09.10
KASHYAP 16:46:31 +0530
Announced in the open court ( NAVEEN KR. KASHYAP)
on 7th day of September, 2018 SCJ-cum-RC ( N/W): Rohini courts Delhi.
CS No. 58405/16