Punjab-Haryana High Court
Ranbir Kaur @ Harjit Kaur vs Gurnam Singh on 5 July, 1996
Equivalent citations: II(1997)DMC148
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. Petitioner Ranbir Kaur was married to the respondent on 15.3.1987. They were blessed with two children Hardev Singh and Harwinder Singh, Hardev Singh has since died. In February, 1992 the petitioner was turned out of matrimonial house. She filed a petition under Section 125 of the Code of Criminal Procedure for grant of the maintenance for herself and for the minor child. The respondent contested the same alleging that the petitioner is not his legally wedded wife. He had developed intimacy with the petitioner. She started living in his house. There was a proposal to marry but it did not materialise. The petitioner was slated to be having illicit relations with one Darshan Singh. The respondent further contended that he had undergone the sterilisation operation in May, 1985 at Civil Hospital, Tanda and thus there was no question of Harwinder Singh having been born from his loins. Furthermore the petitioner was stated to have already been married at Village Nurpur. They had not legally been divorced. She could not marry the respondent again. The respondent's case fur- ther was that he was earning Rs. 700/- to Rs. 800/- p.m.
2. The learned Judicial Magistrate on appraisal of the evidence on 9.5.1994 held that petitioner was legally wedded wife of the respondent. Harwinder Singh was their child. He allowed maintenance to the petitioner and Harwinder Singh at Rs. 350/-p.m. each from the date of the filing of the application. The revision petitions were filed with the Court of Sessions. The learned Sessions Judge, Hoshiarpur held that so far as Harwinder Singh is concerned, he was entitled to maintenance but qua the petitioner, the revision petition of the respondent was allowed. It was concluded that the petitioner was already married. She had not legally been divorced. She could not re-marry the respondent and the marriage was null and void. Thus, it was concluded that she could not invoke Section 125 of the Code of Criminal Procedure.
3. Aggrieved by the said order, the petitioner has preferred the present revision petition.
4. It is well known that Section 125 of the Code of Criminal Procedure has been enacted to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
5. So far as the maintenance awarded to Harwinder Singh is concerned, there was no dispute raised in the Court. The sole controversy as is apparent from the facts recited above was whether the learned Sessions Judge was justified in declining maintenance to the petitioner or not. In this regard the first and foremost question that comes up for consideration is as to if the petitioner was married to the respondent or not. She had examined Bachan Dass, Deed Writer of Sub Tehsil, Tandaas AW-1. He is the scriber of the Will in favour of the petitioner. Sudesh Kumari, Clerk of Sub Tehsil, Tanda was also examined as AW-2. She established that the Will was registered. It described the petitioner as the wife of the respondent. In addition to that Mohinder Singh Chowkidar of the village appeared as PW-3. He proved the birth entry Ex. Al of Harwinder Singh as the son of Gurnam Singh/respondent. These factors clearly show that the petitioner was married to the respondent. It is in evidence that the parties were living together and the above evidence further shows that they were living together as husband and wife. When a man and woman were living together as husband and wife, the children were acknowledged as their own, then one can safely draw the inference of their being a factum of marriage between the two. To the same effect is the decision in the case of Bikash Kumar Mukherjee & Ors. v. Nanda Rani Mukherjee & Ors., AIR 1979 Calcutta 358. Close to the facts of the present case is also the decision from Madras High Court in the case of Mahendravarman v. Ramani & Anr., 1993 (3) RCR 1. In the cited case also, the wife was claiming maintenance. The factum of marriage was denied. Both were living together as husband and wife. The husband had admitted the paternity of the child and had even nominated her in the Insurance Policy. It was concluded that it establishes the factum of marriage between the two. Similar are the facts of the present case and the contention of the respondent that there was no marriage, must be repelled.
6. The plea offered that respondent had undergone sterilization operation and thus, could not give birth to Harwinder Singh is misconceived. It had not found favour with the Courts below. There is no legal infirmity in such a finding nor there is any ground to interfere.
7. The main dispute between the parties herein is as to if the petitioner who had earlier been married could legally marry the respondent. Admittedly, there was no formal divorce granted by any Court to the petitioner. Ex. AW7/A is the deed that had been written to indicate that a divorce was granted to the petitioner in her first marriage. On the strength of it, it is contended that amongst Jat Sikhs of Hoshiarpur, there is custom that such a divorce can be granted.
8. Whoever sets up a custom must prove the same. Sometimes the custom is recognized by Courts and it passes into the law of land. This question was considered by the Supreme Court in the case of Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041. In paragraph 14 it was held :
"14. It therefore appears to us that the ordinary rule is that all customs, general or otherwise, have to be proved. Under Section 57 of the Evidence Act however nothing need be proved of which Courts can take judicial notice. Therefore it is said that if there is a custom of which the Courts can take judicial notice, it need not be proved. How the circumstances in which the Courts can take judicial notice of a custom were stated by Lord Dunedin in Raja Ram Rap v. Raja of Pittapur, 45 Ind App 148 at pp. 154, 155: AIR 1918 PC 81 at p. 83, in the following words, "When a custom or usage, whether in regard to a tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without necessity of proof in each individual case". When a custom has been so recognised by the Courts, it passes into the law of the land and the proof of it then becomes unnecessary under Section 57(1) of the Evidence Act. It appears to us that in the Courts in the Punjab the expression "general custom" has really been used in this sense, namely, that a custom has by repeated recognition by Courts, become entitled to judicial notice as was said in Bawa Singh v. Mr. Taro, AIR 1951 Punj 239; and Sukhwant Kaur v. Balwant Singh, AIR 1951 Punj 242."
The custom as such even with the passing of the Hindu Marriage Act, 1955 has been recognised. Section 2(1) of the Hindu Marriage Act, 1955 reads :
"2(l)(c). This Act applies-
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed."
It can be read alongwith Section 29(2) of the said Act which unfolds itself in the following words :
"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 the commencement of this Act."
Reading of both these provisions show that it does not affect any right recognised by custom pertaining to dissolution of Hindu marriage, whether the marriage is solemnized before or after the commencement of the Act. If there is no such custom, in that event, unless there is a formal divorce, a person already married cannot enter into another marriage with another. The subsequent marriage would be void. This is apparent from the plain language of Section 5 of the Hindu Marriage Act, 1955. A marriage can be solemnized between two Hindus if neither has a spouse living at the time of marriage. Section 11 of the said Act makes the position clear because if a person has a spouse living, then in terms of Section 11 of the said Act, the marriage would be void. Therefore, necessarily one has to develop and see as to whether in District Hoshiarpur, there was any custom pertaining to dissolution of marriage amongst Jats. Attention of the Court was drawn towards the decision of this Court in the case of Mst. Angrej Kaur v. Gurdit Singh & Ors., 1962 Cur. L.J. 533. A Single Judge of this Court was concerned with a question pertaining to a similar custom. It was held that under strict Hindu Law divorce was unknown but it was recognised by customs amongst Jats in District Jalandhar and the surrounding districts. However, in the subsequent decision from this Court in the case of Jagjit Singh v. Mohinder Kaur, 1968 Cur. L.H. 807, these observations made in the case of Mst. Angrej Kaur (supra) were referred to as obiter-dicta. It was held that there was no general custom in Punjab under which a Hindu Jat can dissolve the marriage by repudiating his wife at his Will for no cause and even for disobedience or cruelty, especially when there is no allegation of immorality alleged against her. But reference to Riwaj-a-am of District Hoshiarpur would be advantageous. In the Customary Law of Hoshiarpur District compiled by R. Humphreys in answer to Question No. 19 as to on what grounds a woman can be divorced, it was recorded :
"A Muhammadan may divorce his wife without assigning any reason; change of religion by either the man or the woman cancels the marriage. There is no divorce among Hindus but Jats and Sainis say a man may abandon his wife by executing a deed to that effect. In such cases there must have been good cause such as immorality on the part of the woman."
It was followed by Question No. 20 as to what are the formalities attending divorce. The answer given was :
"Among Hindus there is no divorce, but in some cases a man may abandon his wife as described in the answer to question No. 19. Among Muhammadans, Muhammadan Law is followed. Khula is not known or practised.
Remark-Apparently a Hindus wife who has been formally abandoned by her husband can marry again, e.g., Punjab Record 33 of 1896 (Hindus Ghuman Jats of Gurdaspur)."
There were two illustrations given In the said Riwaz-a-am which reads :
1. Mauza Sagal, Tahsil Dasuya.-Surjan Singh preferred a suit for possession of Mussammat Premi against Gopal Singh and Mussammat Premi which was dismissed, and it was held by the Court that Surjan Singh had executed a deed of abandonment after taking Rs. 66 for the expenses of chadar-andazi and the cost of ornaments from Gopal Singh, the father of Mussammat Premi, which was a sufficient proof of abandonment.- (Munsiff's judgment dated 21.11.01).
2. Mauza Bodal Kotli, Tahsil Dasuya.- Ganga preferred a suit for possession of Mussammat Partapi against Indar and herself, which was dismissed for the reason that Ganga had abandoned her by executing a deed, dated 26th December, 1899, on payment of Rs. 200/- and it was evident by custom that Hindu Jats can abandon their wives in this manner.-(District Judge's judgment, dated 28.11.01)." When the same is taken into consideration, it shows that though ordinarily there was no divorce amongst Hindus but a Jat Hindu could abandon his wife by executing a deed to that effect. In such cases there had to be a good cause such as immorality on the part of the woman. Immorality was taken as one of the grounds. In this regard the expression 'good cause' was more emphatic rather than immorality. There could be any other good cause to abandon the wife. For such a good cause or abandonment, there could he a document in writing. Such a custom has been recognised in District Hoshiarpur.
9. In the present case Ex. AVV7/A is the document that had been executed between the petition and the person with whom she was earlier married. It reveals that they had agreed to live separately and it was a case of abandonment. They could not live together and that could be the good cause for her abandonment. In these circumstances, on the basis of such a custom she could be divorced and when she re-married the respondent, he cannot take the plea that in the earlier marriage of the petitioner, there was no legal divorce. The findings of the learned Sessions Judge, therefore, cannot be sustained.
10. No other argument was advanced.
11. As a result of these reasons, the petition is allowed. The order of the learned Sessions Judge is set aside and that of the learned Trial Court is restored quo the petitioner.