Punjab-Haryana High Court
Smt. Sunder Devi Daughter Of Himta Ram ... vs The State Of Haryana on 30 June, 2014
Equivalent citations: AIR 2014 PUNJAB AND HARYANA 139, (2015) 1 DMC 646, (2014) 3 RECCIVR 639, (2014) 4 CIVILCOURTC 773
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.4850 of 1991 (O&M)
Date of decision:30.06.2014
Smt. Sunder Devi daughter of Himta Ram son of Hemu Ram and
wife of Diwan Chand son of Kashi Ram, resident of Patel Nagar,
Hisar, Tehsil and District Hisar.
... Petitioner
versus
The State of Haryana, through the Collector, District Sirsa, and
others.
.... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. L.N. Verma, Advocate,
for the petitioner.
Mr. Kartar Singh, DAG, Haryana.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J.
1. The crucial question that arises in this case is the validity of divorce by custom of parties belonging to Hisar District. This had an immediate meaning to the computation of property that stood in the name of wife, who was said to have been divorced for assessment of holdings under Haryana Ceiling on Land Holdings Act 1972 (hereinafter called the Act). If the property held by the Kumar Sanjeev 2014.07.01 12:28 I attest to the accuracy and integrity of this document Civil Writ Petition No.4850 of 1991 (O&M) -2- wife were to be included in the holdings of the husband which normally would be the case, since the definition of "family" includes the property held by the spouse, the point which has been answered is whether the authorities were correct in concluding that the property held by the wife could not have been excluded in the manner sought for by the husband and by the representatives of the wife.
2. The writ petition is brought at the instance of a person claiming to be the beneficiary under a Will that was executed by Lalo Bai. The case is under the proceedings of the Act reckoning the holdings to be made in the hands of Ram Chand which was decided by the Prescribed Authority, Dabwali, under Annexure P-7, dated 27.01.1986. He was said to be a small landowner and it was originally held that he held no area in surplus. There had been no appeal filed against it, but a revision was undertaken after a period of 3 ½ years by the State when the Financial Commissioner passed an order purporting to exercise jurisdiction under Section 18(6) of the Act. He passed the order on 06.04.1990 and remitted the matter to the Prescribed Authority with a direction to club the land held by the petitioner, who,claimed his right to the property under a bequest term from the wife of Ram Chand and he directed that the computation would have to be made again.
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3. The petitioner's contention is (i) the power of revision exercised by the Financial Commissioner after a period of 3 ½ years was not justified. There was no reason why the action could not be taken earlier. The State had allowed the order passed by the Prescribed Authority to become final and there was no justification for reopening the issue. This objection, I do not think is very potent, for, we have to see that when an authority had passed an order of what he believed to be on an assumption that the property held by the wife would require to be excluded because there was a divorce and the issue was whether such a divorce could be given effect to, it was surely a matter where the authority which had come by necessary information was giving an opportunity to the alleged owner and proceeded to dispose of the case. I would not find that there is any serious prejudice also caused, for, after all the petitioner has been given an opportunity to explain his own case and a decision has been taken in his presence. I, therefore, reject the plea that there has been any undue delay on the part of the State.
4. The contention regarding the so-called divorce comes in this fashion: Ram Chand whose marriage to Lalo Bai was an admitted fact, did not have a child through the first wife. The contention is that there was a customary form of divorce and an agreement was executed on 05.06.1969 and pursuant to an agreement, a civil suit was filed on 07.11.1969 for declaration that Kumar Sanjeev 2014.07.01 12:28 I attest to the accuracy and integrity of this document Civil Writ Petition No.4850 of 1991 (O&M) -4- she had become the owner of the property under Annexure P1. The copy of the decree which has been filed in court is filed as Annexure P2. I have seen through the copy of P1-the so-called agreement. The agreement says that the wife had been given land of 187 Kanals 14 marlas comprised in khewat No.84/229 situate in Village Gidran of Lalo Bhai. This agreement does not make any reference to any divorce. On the other hand, it merely records the fact that the consent given by Lalo Bai to her husband to contract a second marriage. It only states that there would have no relation of husband and wife w.e.f. 05.06.1969 but does not state that the marriage was dissolved. I must observe that this document must be merely taken as an instrument that would have given protection against the husband for any complaint of offence of bigamy. After all, the only person, who could set the law in motion against the person, who contracted the second marriage, when the first wife was still subsisting, was the wife herself and, therefore, the letter or agreement from her that she will have no objection, was vital. I cannot, therefore, take this document to be the basis for a plea that there had been a divorce. I find again the copy of the decree that had been relied on by the petitioner in the suit instituted on 07.11.1969 to record any finding regarding a divorce as having been effected in the village.
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5. Indeed, the issue of whether there could be a dissolution of marriage other than under the provisions of the Hindu Marriage Act will have to be examined from the provisions of the Act itself. Section 4 of the Hindu Marriage Act reads thus:-
"4. Overriding effect of Act.- Save as otherwise expressly provided in this Act.-
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act."
The Section which abrogates all customs contrary to the provisions of the Act must be at all times to be given effect. Section 12 of the Hindu Marriage Act provides for annulment of marriage on certain grounds which would invalidate the marriage. Section 13 sets out various grounds which either of the spouse can invoke to apply for dissolution of marriage. Section 13B refers to a divorce on mutual consent. The marriage is still regarded as sacred under the Hindu law and it is still based on theory of fault except in cases where parties mutually consent to divorce. A mutual consent that is the basis for a divorce shall be in a manner prescribed under Section 13 B itself. It has to be applied to the court before a valid decree is Kumar Sanjeev 2014.07.01 12:28 I attest to the accuracy and integrity of this document Civil Writ Petition No.4850 of 1991 (O&M) -6- obtained. We must note that Ex.A1 does not contain any reference to dissolution of marriage. This cannot also operate by itself to constitute a divorce. It should have been, if at all, escalated through an application in the court in the manner known to law. In the year, 1969, there was not even a provision under the Hindu Marriage Act for divorce by mutual consent. The question of giving effect to Ex.A1 to constitute a dissolution of marriage therefore did not simply arise.
6. Section 29(2) is another Section which has to be seen as an exception to what Section 4 contains. Section 29(2) is reproduced as under:-
"29. Savings.- (1) ......
(2) Nothing contained in this Act shall be deemed to affect any right recognized 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."
7. This provision makes possible a recognition of dissolution if a custom allows for such a dissolution. Customs will have to be always strictly proved and in relation to matrimonial matters particularly to existence of customs, the Supreme Court had an occasion to deal with in Gurdit Singh Versus Mst. Angrez Kaur and others-1968 AIR (SC) 142. In that case, there was an entry recorded in riwaj-i-am which had entered custom of divorce amongst Hindu Jats of Jullundur District. The court, while holding Kumar Sanjeev 2014.07.01 12:28 I attest to the accuracy and integrity of this document Civil Writ Petition No.4850 of 1991 (O&M) -7- dissolution of marriage by custom was still valid and the divorced wife was entitled to enter into a second marriage, held that riwaj-i- am was not reliable to prove custom of divorce. The Supreme Court held so, even in a situation where there was an entry regarding a so- called divorce. Here, in this case, we have only Ex.P1 that does not refer anywhere to divorce nor it records the existence of customs. I have also tried to examine whether there is any customary practice prevailing in Hisar. Rattigen's Book on Customs in Punjab was an important text that had recorded several instances of customs existing in the erstwhile unified State of Punjab that included the present State of Haryana and Himachal Pradesh. Section IV of the Book, Chapter XIII refers to grounds of divorce in the district of Hisar and that reads as follows:-
Section IV-Divorce Grounds of Question 22.-Upon what grounds may a wife be divorced? Is divorce change of religion a sufficient cause? May a husband divorce his wife without assigning any cause?
Answer 22.
Bishnois A wife may be divorced for change of religion or bad character, but for no other reason.
Other Hindu tribes, Pathans and Musalman Jats- Divorce is unknown.
Dogars, Musalman, Rajputs and Pachadas- A wife may be divorced for bad character. Among Dogars change of religion is not a sufficient reason for divorce, while among Musalman Rajputs and Pachadas it is, and a husband may divorce his wife without assigning any reason. Among Dogars a man cannot divorce his wife without reason. Hindu generally, though they do not recognize divorce, say that man can turn his wife out for unchastity, or if she changes her religion.Kumar Sanjeev 2014.07.01 12:28 I attest to the accuracy and integrity of this document Civil Writ Petition No.4850 of 1991 (O&M) -8-
Formalities Question 23.-What are the formalities which are observed on a divorce? What is the distinction between talaq and khula? Answer 23.
All tribes-
Among Bishnois the husband turns his wife out of his house, putting a white cloth over her before his relatives, and says to her "I part with you (main ne tum ko chhor diya)." This completes the divorce, and this is the only formality observed. Among Musalmans, other than Pathans, and Jats, who do not recognize divorce, a divorce is performed before two respectable witnesses; the husband addresses the words "I divorce you" three times to the woman, and thus the divorce becomes irrevocable. The distinction between talaq and khula is not understood. Effects Question 24.- Has a divorced wife any claim against her husband as regards maintenance or share of his property? Has she any claims even if she be divorced on the ground of adultery? Answer 24.
All tribes;
Among Musalman Rajputs and Pachadas a divorced wife has no claim against her husband as regards maintenance or share of property, except for her dower (mehar), if it has not been paid. Ordinarily, however dower is never claimed by a divorced wife and no instance of such claim is forthcoming. See the following reply:-Among Bishnois also a divorced wife, whatever the ground for divorce may be has no claim against her husband as regards maintenance or share of property. But among Mahajans a wife of bad character, so long as she lives in her husband's house, can claim maintenance, but loses her right to this on leaving the house. This rule does not seem to apply to other Hindus."
8. This passage will show that the Book does not record any subsisting custom in Hisar for women to divorce on the ground that she did not have a child. I cannot, therefore, accommodate a plea that there had been a divorce.
9. It is also significant to note a particular aspect which the Financial Commissioner has also seen. In the declaration which the landowner had given, he had actually included even the property held by his first wife. He had not stated anywhere that his wife had been divorced. It only appears that in the year 1981, the authorities Kumar Sanjeev 2014.07.01 12:28 I attest to the accuracy and integrity of this document Civil Writ Petition No.4850 of 1991 (O&M) -9- had contemplated divorce and divorce by mutual consent was taken. This cannot be taken as a circumstance an affirmation of an alleged customary divorce. If at all, divorce could operate only from the day when the decree was granted. Indeed, it is even suspicious that it is a genuine and bona fide transaction. If it is a bona fide transaction, it is invalid to exclude the property held by the wife from the holding of her husband at the time when the Act was passed and when the reckoning was made. If it was not bona fide, then the question of giving effect does not arise at all. The suspicion of lack of bona fide arises only from the fact that it was not already entered in the statement which the husband had given.
10. If the property held by the wife were also to be included in the holding of the husband, then the issue of exclusion of this property by giving effect to the Will said to have been executed by the wife and here the petitioner, does not obtain any relevance. The impugned order of the Financial Commissioner is perfectly valid and there is no scope for interference. The writ petition is dismissed.
(K.KANNAN) JUDGE 30.06.2014 sanjeev Kumar Sanjeev 2014.07.01 12:28 I attest to the accuracy and integrity of this document