Gujarat High Court
Dipeekaben D/O Hasmukhbhai Nanjibhai ... vs Vishvjeetsinh Ashoksinh Gohil on 2 January, 2024
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/SA/91/2022 JUDGMENT DATED: 02/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 91 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No.
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DIPEEKABEN D/O HASMUKHBHAI NANJIBHAI SHRIMALI
Versus
VISHVJEETSINH ASHOKSINH GOHIL
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Appearance:
MR MOHMED SAIF HAKIM ADVOCATE ALONG WITH MR ADNAN A.KHAN
ADVOCATE WITH ADVOCATE MR MUHAMMADYUSUF M KHARADI(9509)
for the Appellant(s) No. 1
MR BHUNESH C RUPERA(3896) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 02/01/2024
ORAL JUDGMENT
1. As per the record, the party respondent herein as a plaintiff, had filed a suit under Page 1 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined section 34 of the Specific Relief Act, 1963 for declaration of divorce on the basis of customary divorce deed dated 23.07.2017. The suit came to be rejected on 05.12.2018 by the Principal Senior Civil Judge, Khambhat. Aggrieved by the same judgment and order, the plaintiff filed Regular Civil Appeal No.73 of 2020 before the Additional District Judge, Khambhat, which also came to be dismissed on 18.03.2021 by 6th Additional District Judge, Khambhat.
2. Aggrieved by both the orders, the defendant of the suit is before this Court as an appellant in Second Appeal contending that both the courts have failed to consider the fact that the matrimonial ties between the parties are governed by the customs of the community, which has taken a force of law because of long usage, and the said fact of prevailing customs would be proved by the evidence of the parties. Page 2 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024
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3. Advocate Mr. Muhammadyusuf M.Kharadi for the appellant submitted that since the substantial question of law arose on the decision of both the courts, therefore, the appellant being a defendant of the suit was constrained to file the present Second Appeal, since both the courts have not rightly appreciated the provisions of law, and have denied the relief of declaration of status of the parties as being divorced. Mr. Kharadi contended that customary divorce is permissible in the caste of both the parties. Mr. Kharadi further submitted that community of both the parties, being as schedule caste approved by the Constitution of India, itself proves that the parties would not be governed by the Hindu Marriage Act, 1955 but would be saved by the provision of section 29 of the Hindu Marriage Act.
3.1 Advocate Mr. Kharadi submitted that the fact that both the parties jointly had not Page 3 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined approached the Court would itself proves the fact that there has been a denial, and arraigning the appellant as defendant before the trial Court in the suit itself proves that she is interested to deny the legal status of the plaintiff's suit. Mr. Kharadi submitted that the parties were not required to prove custom of divorce and its long usage, since the parties being of schedule caste such custom is recognized in their caste. 3.2 Advocate Mr. Kharadi submitted that the Court was required to only consider the factum of denial on the date of the suit, where the party defendant was interested to deny the plaintiff suit. Mr. Kharadi submitted that the learned trial Court Judge has referred to the dispute between the parties as falling under the cause of "Jactitation of Marriage", and, thus has observed that though such kind of Civil Suits for negative declaration would be maintainable under section 34 of the Specific Relief Act rejected the suit Page 4 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined considering no denial of the divorce. Mr. Kharadi further submitted that the learned trial Court was required, to consider the document and to give the relief of declaration appreciating the customary divorce, which has been recognized by the caste and community of both the parties, apprised with the fact that there was non- observance of the condition of divorce.
4. Advocate Mr. Bhunesh C.Rupera submitted that the respondent had through out agitated before both the Courts about the customary divorce prevalent in the community, while the trial Court raised the question against the suit and observed that it was only on settlement the document was executed and denied the relief on the ground that there is no denial of divorce status by the defendant, and on that observation has concluded that the parties could have taken resort under section 13B of the Hindu Marriage Act, 1955 for divorce by mutual consent. Page 5 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024
NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined 4.1 Advocate Mr. Rupera submitted that once the parties have taken customary divorce, and such documents would be executed only on the basis of consent of both the parties by way of intervention of the community members, and such is the recognized mode of divorce in the community and caste of the parties, and once customary divorce is by way of mutual consent, no relief can be prayed under section 13B of the Hindu Marriage Act, Advocate Mr. Rupera stated that it is only when a person denies, or when a person, who is interested to deny directly or indirectly challenges the status, then the person would become entitle to file a suit for a declaration of the legal character, where in this matter the respondent was before both the courts praying for relief under section 34 of the Specific Relief Act, as under the provisions of section 29(2) of the Hindu Marriage Act, 1955, the parties would have no recourse to Hindu Page 6 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined Marriage Act, as it saves the customary divorce. 4.2 Advocate Mr. Rupera further submitted that even if the parties have to go for mutual consent under section 13B, the suit was required to be filed before the same Court, as the applicant as a plaintiff is resident of village Vadgam and not the local resident of Anand to have the jurisdiction of the Family Court, Anand.
5. In view of the submission, following substantial questions of law are raised:
(I) Whether both the courts were right in holding that section 34 of Specific Relief Act is not applicable in the present case?
(II) Whether both the courts
were right in holding that the
judgment and decree cannot be
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C/SA/91/2022 JUDGMENT DATED: 02/01/2024
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passed under Order 12 Rule 6 of
the Code of Civil Procedure, 1908 when suit for declaration under section 34 of Specific Relief Act, 1963 has been preferred?
(III) Whether both the courts
were right in holding that the
suit under section 13B of the
Hindu Marriage Act, 1955 was
required to be instituted when the marriage had already been dissolved through customary divorce?
(IV) Whether both the courts were right in holding that divorce between the parties through notarized divorce deed does not fall within the scope and ambit of section 29(2) of Hindu Marriage Page 8 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined Act, 1955?
6. The present respondent as a plaintiff had filed the Regular Civil Suit No.31 of 2018 under section 34 of the Specific Relief Act for declaration of status on the divorce deed executed before the Notary on 23.07.2017. The marriage was performed as per Hindu rites and customs of the community on 02.12.2016 at Ramji Temple Sakarpur, Taluka Khambhat. The disputes between the parties arose, which were irreconcilable and, the wife, present appellant, left the matrimonial house on 08.07.2017. It was pleaded that the plaintiff belongs to 'Rajput' caste while the defendant is from 'Brahman' caste, and as per the customs prevalent in the community, both were entitled to bring an end to the marriage by way of customary divorce, hence, a document was executed on 23.07.2017 before the Notary.
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7. The learned trial Court Judge observing the fact of divorce deed being registered before the Notary, has referred to the cross examination of the plaintiff from the side of the defendant. The learned trial Court Judge observed that the plaintiff has accepted the marriage between the parties and further has accepted the registration of the divorce deed before the Notary as per customs prevalent in the community. The signature of the parties were identified. The learned trial Court Judge, thus, went on to observe that apart from this fact, no other facts got disclosed during the course of cross examination. 7.1 The trial Court Judge observing the pleadings of the parties noted that, it was a suit for declaration on divorce deed between the parties dated 27.07.2017. Thus, considering the oral and documentary evidence on record, the trial Court Judge noted that there was no challenge by the defendant, and the cross Page 10 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined examination was mere in a formal form, and during the cross examination, the plaintiff has admitted all the facts, therefore, the learned trial Court Judge concluded to observe that there was no dispute between the parties to the divorce deed. 7.2 Referring to the provisions of section 34 of the Specific Relief Act, the learned trial Court Judge came to the conclusion that, since there was no dispute between the parties and by way of settlement the divorce has been taken, then in that fact, the parties would have taken the decree from the concerned Court under section 13B of the Hindu Marriage Act, which the trial Court Judge considered it to be in the interest of the parties. The learned trial Court Judge thereafter has observed that the Hindu Marriage Act is a complete law and provisions are made therein to ask such relief.
7.3 The learned trial Court Judge has Page 11 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined further observed that if any suit is brought under section 34 of the Specific Relief Act, and when other party denies the facts pleaded, in that circumstances the party would be entitled to receive the relief, and if the suit is concerning marriage, then, if required the party can also pray for injunction. The learned trial Court Judge has further observed that a negative declaration could be sought in connection with the matrimonial relation under section 34, with the plaintiff praying a relief that the defendant is not the husband or the wife, and such kind of suits would be considered under the matrimonial jurisprudence as 'Jactitation of Marriage', which could be considered to be for negative declaration to which civil court would have the jurisdiction to decide on that cause of "Jactitation of Marriage".
7.4 The learned trial Court Judge has further observed that the plaintiff has failed to Page 12 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined mention as to why he was constrained to file the suit, instead of praying for a relief under section 13B of the Hindu Marriage Act for mutual consent. The learned Judge has also referred to six months' cooling period, which would be considered as protection card for the parties in case filed under section 13B of the Hindu Marriage Act. While, no such cooling period is provided under section 34 of the Specific Relief Act to permit time to the parties for a change of opinion or decision, and, thus having observed that since a suit has been filed on the basis of a deed, which was after the settlement between the parties, the learned trial Court Judge observed that there was no dispute between the parties to the relief prayed, and, thus, considered the same as a prayer for affirmative relief.
8. Having considered the observation of learned trial Court Judge, and having heard Page 13 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined learned advocates on record, it is to be glaringly noted that the learned trial Court Judge has aptly appreciated the Hindu Marriage Act, 1955 as a complete Act, but appears to have been oblivious of the provision of section 29(2) of the Hindu Marriage Act, where the Act very clearly provides that any provisions of the Act shall not be considered to effect any right recognized by custom or conferred by any special enactment to obtain the dissolution of Hindu marriage whether solemnized before or after the commencement of the Act.
9. Sub-section (2) of section 29 of the Hindu Marriage Act, 1955 reads as under:
"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, Page 14 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined whether solemnized before or after the commencement of this Act."
10. The document dated 23.07.2017 is a divorce deed under the nomenclature of "mutual consent". The present appellant as wife is a party of first part and the plaintiff of the suit as husband is the party of second part, where both the parties had referred to their castes and their educational qualifications, and the fact of their falling in love relation during the course of study, and out of that relation. They had married on 02.12.2016 at Ramji Temple Sakarpur, Taluka Khambhat, and the marriage was registered before the Registrar of Marriage, Sakarpur, Takula Khambhat, Dist. Anand in Register part-1 at Sr. No.518 on 03.12.2016.
10.1 As noted in the deed, the marriage was not accepted by the family members and after the intervention of the parents and family members, Page 15 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined they had decided to take divorce, with further observation in the deed that second part fails to give consent for divorce under section 13B of the Hindu Marriage Act, then the party of the first part was entitled to initiate any legal proceeding, and the party of the first part was put to condition to withdraw the police complaints unconditionally, which was filed against the party of the second part, and both the parties were restrained to raise any disputes or allege against any of them or the family members leading to defamation in future.
11. It appears that the learned trial Court has failed to consider the averments made in the divorce deed. The parties had decided by consensus to take a relief under section 13B of the Hindu Marriage Act. It appears that the condition as agreed upon had not fructified, and the failure was giving a right to the party of first part i.e. the present appellant to file Page 16 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined necessary proceedings to claim the maintenance. The learned trial Court Judge has merely referred to the cross examination observing that there was no dispute raised by the defendant, who is present appellant i.e. the divorcee wife. 11.1 The learned trial Court has failed to observe the scope of provision of section 34 of the Specific Relief Act, 1963. The object of Section 34 is to avoid multiplicity of suits and to obtain a decision once for all. The Court has to give a finding on the question whether the plaintiff is able to seek further reliefs, or whether he has omitted to do so in case where the bar under the proviso is pleaded. The Court should not have thought a suit as barred by the proviso, unless it is specified beyond all doubts that the plaintiff ought to seek further relief, which he has omitted to do so.
12. Section 34 of the Specific Relief Act Page 17 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined reads as under:
34. Discretion of court as to declaration of status or right.-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.Page 18 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024
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13. It is required to be noted that such discretion of dismissing the suit on the basis of the proviso to section, could be exercised only in case, where the court comes to the conclusion beyond all doubts that the plaintiff was required to seek further relief, which he omitted to do so. The proviso does not compel the plaintiff to sue for all reliefs, which could possibly be granted, or debar him from obtaining a relief, which he wants, unless at the same time he asked for a relief, which he does not want.
14. Here, in the present case, there was no objection raised by the defendant to the relief prayed by the plaintiff by pleading a bar under the proviso to section 34. The defendant had not raised any objection to the relief sought for by stating that the plaintiff was required to seek a relief under section 13B of the Hindu Marriage Act, 1955. Though, the parties had agreed upon to Page 19 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined file divorce petition under section 13B, on the basis of mutual consent, the condition was not fulfilled, hence, the plaintiff, the present respondent, had found that defendant, the present appellant, was a party interested to deny the status of divorce as had been executed by way of a divorce deed.
15. The plaintiff had all the reasons to file the suit, since the terms and conditions, as agreed upon, were not followed. The plaintiff, thus, had found that the defendant was interested to deny his legal status of being a divorced person by way of a divorce deed executed before the Notary. The discretion of the Court is to declare the status, which has to be exercised considering the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, conduct of the parties and the effect of the court granting the decrees. The grant or refusal of the Page 20 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined relief of declaration and injunction under the provision of section 34 is discretionary, and the plaintiff cannot claim the relief as of right, however, the court has to exercise the discretion on sound principles of law of ex debito justitiae.
15.1 It is also well settled that when the discretion is not exercised by the lower court in the spirit of statute or fairly or according to the rules of reasons and justice, then the impugned order can be reversed by the superior courts. The suit was for declaration of the status of the parties, by way of pleading customary divorce, which has been pleaded by the plaintiff, and which has not been denied by the defendant. Both the parties agrees of customs prevalent in the community of taking divorce in a customary way. The learned trial Court Judge was required to decide upon the legal status of the plaintiff in view of the customs so pleaded by Page 21 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined the parties.
16. The appellate Court while observing the provisions of section 34 of the Specific Relief Act as discretionary in nature has also come to the conclusion that when the facts pleaded by the plaintiff has not been disputed by the defendants, then the suit would not fall under section 34 of the Specific Relief Act. The learned appellate Judge has failed to appreciate the document produced on record at Mark 8/1, which is the copy of the registration of marriage and Mark 8/2 the copy of the divorce deed. The wife was the first part in the divorce deed, while the plaintiff of the suit was the party of the second part in the deed. The learned appellate Court, as also the trial Court has merely relied upon the pleadings of the parties considering that there were no substantial dispute raised by the defendant to the documents. Page 22 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024
NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined 16.1 It is required to be noted that the relief sought was for declaration regarding the matrimonial status of the parties on the basis of the divorce deed dated 23.07.2017. Both the learned courts have only observed that there is no denial to the execution of the divorce deed, however, failed to appreciate the fact that the defendant could not be in a position to deny the execution of the document before the Notary. Hence, there would not have been any substantial dispute regarding the execution of the divorce deed before the Notary. The plaintiff as a husband had come before the Court, as he had an imminent fear of a challenge to his status as a divorced person. Since the condition noted in the divorce deed were not fulfilled, certain restriction were laid by way of deed on the parties apprehension of non-fulfilment had brought the plaintiff to the Court by filing the suit. Section 34 of the Specific Relief Act Page 23 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined permits him to institute a suit against any person denying or interested to deny his title based on the document. Section 34, thus, gives a discretion to the Court to make a declaration, to the effect that plaintiff is so entitled, and the plaintiff need not in such suit asked for any further relief, as has been provided under section 34 of the Act.
16.2 The learned trial Court Judge ought to have kept in mind that the parties have already taken divorce by way of customary means. Once a party has severed matrimonial ties by customary way of divorce, then on the date of execution of the divorce deed i.e. 23.07.2017, the party would not have any right to make a prayer under section 13B of the Hindu Marriage Act, 1995, as on the date of the divorce, the parties would not be having the status of husband and wife.
17. The learned trial Court Judge has Page 24 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined referred to the maintainability of the suits under the cause of 'Jactitation of Marriage'. The 'Jactitation of Marriage' means persistent boasting of a marriage, falsely alleged to have taken place. A false boast or a claim that tends to harm another person, especially a false assertion that one is married to another, such kind of cause would be formally actionable at law. The 'Jactitation of Marriage' is an archaic cause of action in English and in Irish law, where one person falsely asserts that he or she is married to another, the wronged party could obtain an order restraining further repetitions of the falsehood.
18. Here, in the present matter, there has been no denial of the marriage. In fact, the marriage was registered before the Registrar of Marriage. Thus, there would not have been any cause for filing a suit for 'Jactitation of Marriage'.
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19. The appellate Court has referred to the provisions of section 29(2) of the Hindu Marriage Act, which saves the validity of the customary divorce. The learned appellate Court by referring to the provision of section 29(2) of the Hindu Marriage Act has observed that, custom is a rule which in a particular family or a particular class of community or in a particular district has, from long usage, obtained the force of law. It must be ancient, certain and reasonable custom being in the derogation of general rule of law, must be construed strictly and should be established by evidence. The learned appellate Judge, thus, has observed that, party relying on custom must allege and prove the custom on which he relies.
19.1 The learned appellate Court Judge has relied on the judgment of Shalini V/s. Dhanraj, decided on 09.03.2017, I (2018) DMC 517 (DB) Page 26 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined (Bom.), where the Court had observed that, the evidence in the case shows that the wife has not led any evidence to show the existence of any customary divorce prevailing in her community. No document is filed relating to the time period of prevalent custom prior to the passing of the Act. The Court was of a view that the evidence both oral and documentary is too short to prove that there was a customary divorce practice prevailing in the community. The wife has not examined any elderly person from the community who could have deposed in support of the custom prevailing for obtaining a customary divorce.
19.2 Placing reliance on the observation of the judgment of Shalini V/s. Dhanraj (supra), the appellate court had observed that the prevalent custom was required to be proved and the burden of proof was on the plaintiff. The learned appellate Court has further observed, that in the plaint, the plaintiff has failed to record as to Page 27 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined when such customs or usage came in force, and has further observed that the plaintiff has merely given his deposition which is a self-serving, and no evidence has been given regarding the custom prevalent for divorce by way of any strong and reliable evidence, and, thus had found that self- serving depositions are not sufficient and reasonable, hence, in view of lack of evidence, has observed that the plaintiff was not entitled to a declaration for divorce on the divorce deed.
20. The learned appellate Court Judge has further considered the provision of Order 12 Rule 6 of the C.P.C., where the parties had made a prayer below Exh.12 for a decree before the trial Court. Order 12 Rule 6 is provided for judgment on admission. The appellate Court Judge, thus, by placing reliance on the expression "may" in order 12 Rule 6(1) has found that by rejecting the application the trial Court has committed grave error. The appellate Court has considered that Page 28 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined the application of word 'may' provides discretion to the Court to pass any kind of order, thus, found that the denial of decree on the basis of admission is not illegal or irregular nor the appellate Court has found any error in the order. 20.1 In this context, the development in the trial would require a consideration. The learned trial Court Judge had observed in the judgment that on service of summons to the defendant, vide Exh.6 the Vakalatnama was produced and vide Exh.7 the reply raising the objection was filed. The very fact of objection raised by the defendant would prove the case of the plaintiff under section 34 making him entitle for the relief sought for, as the defendant has denied the relief sought for and defendant has denied the status of the plaintiff by filing reply, Exh.7. 20.2 It is to be noted that subsequently Exh.12 was moved to pass a judgment on admission, Page 29 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined which came to be rejected. Then, where the learned trial Court refuses to give any relief under the provision of Order 12 Rule 6, the Court, would be then be obliged to consider the case of the parties on the basis of the plaint and the written statement, where there was a challenge raised to the suit.
20.3 The trial Court has denied the suit on the ground that there is no negative prayer, while the appellate Court Judge had declined to entertain the appeal observing that custom prevalent in the community being followed, and its existence from the ancient time has not been proved. It is required to be noticed that the plaintiff had pleaded about the customs prevalent in the caste of both the parties to obtain customary divorce. The document, which has been relied upon is a deed of divorce, on the basis of the consent by both the parties, the conditions had been agreed upon, but the plaintiff Page 30 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined apprehended denial of status thus filed suit, and subsequently in the suit by way of written statement, the wife has raised the objection. The reply of the defendant raising objection to the prayer itself substantiate the cause of action of the suit for the plaintiff to make a prayer for declaration of his status of divorce on the basis of the deed of divorce. Thereafter, by moving Exh.12, the wife as defendant had admitted the plaint and both the parties had made a prayer for judgment on admission. The acceptance of the customary divorce by the defendant wife by filing Exh.12 is an admission of the wife of the customary divorce prevailing in her community.
21. In case of Shalini V/s. Dhanraj (supra), the Division Bench has observed on facts that the wife has not laid any evidence to show existence of customary divorce preceding the Hindu Marriage Act, and the oral and documentary evidence do not establish that there was approval of customary Page 31 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined divorce prevailing in the community, to which the party belongs. The sister of the wife was also silent in her deposition about any custom in their community to obtain customary divorce; hence, the Division Bench observed that the custom cannot be created by an agreement between the parties. In the referred case, the suit was filed before the Family Court, where the wife had filed a petition under section 9 of the Hindu Marriage Act for restitution of conjugal rights, while the husband had filed for declaration of marriage being null and void. In the matter, in the written statement on behalf of the wife, she has admitted that her first marriage was dissolved as per the custom prevalent in the community, hence, the issue which was raised was about the divorce in connection with the previous marriage, where the wife had claimed that in their community, customary divorce is accepted. The suit was by the husband to declare the Page 32 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined marriage between them as null and void, since the wife was not legally divorced from earlier marriage. Hence, to the facts of the case, it was required for the parties, to the issue raised, to prove whether there was customs in the community of parties to dissolve the marriage by customary divorce.
22. Here, in the present matter, no such dispute had been raised by either parties. The plaintiff had come up with a case that there was custom prevalent in the caste of both the parties to take customary divorce.
23. Section 3(a) of the Hindu Marriage Act, 1955 deals with expression "custom" and "usage" to define that, unless the context otherwise requires, the expression "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any Page 33 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined local area, tribe, community, group or family, with the proviso that the rule is certain and not unreasonable or opposed to public policy, with further proviso that in case of a rule applicable only to a family it has not been discontinued by the family.
24. The factum of custom prevailing in the caste was pleaded by the plaintiff and the reply of the present appellant as a wife was before the trial Court at Exh.7, and further before the appellate Court, when the order and judgment was challenged by the husband, the wife had filed the reply at Exh.5 almost admitting the appeal and concurring to the reliefs prayed for, where the parties have affirmed of the custom prevalent in their caste and community to take divorce by executing deed.
25. Today, before this Court, affidavit of the respondent - plaintiff of the suit, has been Page 34 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined filed on record, and affidavit of one Satishchandra Keshavlal Pandya from the side of the appellant has been placed on record. The affidavit was executed before the Notary on 30.12.2023, who has noted that he belongs to 'Brahaman' community and the appellant is a distant relative, has referred to the fact of the marriage and has stated that the divorce, which had been executed on 23.07.2017, was as per the custom of their community, and has also accepted that such custom is prevalent in the community. The deponent - Satishchandra Keshavlal Pandya is a retired person. The factum of custom prevalent in the community is affirmed by a person aged about 64 years, thus, the fact of custom and usage observed in the community for a long time and as now obtain the force of law among Hindu of the said community has been proved by an elderly person from the side of the appellant. In the same way, one Gohil Ashokkumar Jilubha, aged Page 35 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined about 62 years has filed an affidavit in support of the respondent, who is a plaintiff of the suit to affirm the customary divorce dated 23.07.2017, and according to him such custom is prevalent in their Gohil community and that customary divorce are accepted as legal by the community.
26. The affidavits of both the persons prove the custom prevalent in the community by long usage and such customary divorce are accepted in their community.
26.1 During the course of argument, this Court wanted to get the clarification of the Garoda Bhraman community, the appellant, as reflected in the leaving certificate, learned Advocate Mr. Kharadi produced for perusal of the Court the copy of notification attached to the constitution of India to show that Garoda- Bharamans belong to schedule caste. Further a copy of schedule caste certificate issued by the Page 36 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024 NEUTRAL CITATION C/SA/91/2022 JUDGMENT DATED: 02/01/2024 undefined department of Gujarat Government certifying appellant as belonging to schedule caste.
27. In view of the observations made hereinabove and to the reasons noted hereinabove, the judgment and order dated 05.12.2018 passed by the Principal Senior Civil Judge, Khambhat in Regular Civil Suit No.31 of 2018 and the order dated 18.03.2021 passed by 6th Additional District Judge, Khambhat in Regular Civil Appeal No.73 of 2020 are quashed and set aside. The present Second Appeal is allowed. The relief prayed for in Regular Civil Suit No.31 of 2018 is hereby allowed. Decree be amended accordingly.
(GITA GOPI,J) Pankaj Page 37 of 37 Downloaded on : Fri Jan 26 20:40:28 IST 2024