CASE NO.:
Appeal (civil) 4969 of 1998
PETITIONER:
YAMANAJI H. JADHAV
Vs.
RESPONDENT:
NIRMALA
DATE OF JUDGMENT: 01/02/2002
BENCH:
N. Santosh Hegde & Doraiswamy Raju
JUDGMENT:
SANTOSH HEGDE, J.
The appellant in this appeal was the defendant in
O.S.No.156 of 1982 before the Principle Munsif Bijapur, which
suit was filed by the respondent plaintiff praying for a
declaration that a divorce deed dated 26th of June, 1982
executed by her was obtained by coercion and threat and for
cancellation of the same. The said suit came to be dismissed by
the trial court and an appeal against the said judgment being
dismissed, the respondent plaintiff appealed to the High Court.
The High Court in a second appeal has reversed the finding of
the courts below and has decreed the suit with a further
direction that the concerned District Judge should file a
complaint against the plaintiff for an offence committed by him
against his wife within three months from the date of the receipt
of the said judgment. As noted above, the appellant plaintiff is
before us in this appeal.
We will refer to the parties in their status in which they
were arrayed in the trial court.
The case of the plaintiff in the trial court was that her
marriage with the defendant was solemnized on 26th of May,
1978 and though they lived as husband and wife for some time,
she was constantly ill-treated by her husband consequent to
which she was hospitalized. Subsequently the defendant had
filed a matrimonial suit for divorce in the year 1979 and the
said suit came to be compromised. However, the relationship
between the two did not improve and husband was continuing
to demand a divorce from her. Ultimately, she was sent back to
her parental home because of which she was constrained to file
a petition for maintenance. It is further claimed that the
defendant forcibly took her and wrongly confined her which led
her father to make an application under Section 97 of Cr.P.C. It
is also stated that subsequently under threat and coercion she
was taken to the office of the Sub-Registrar on the 26th of June,
1982 and signed a document which has turned out to be a deed
of divorce. It is also stated that unable to bear the suffering, she
even tried to commit the suicide, but, however, she was saved
by the neighbours. Subsequently when she realised that the
document executed by her was a divorce deed she filed a suit
for a declaration that the said deed was obtained by fraud and
coercion as also for the cancellation of the deed.
The defendant in his written statement contended that the
allegations of the plaintiff was false and mischievous but
admitted that he was married to the plaintiff on the 26th of May,
1978. He denied that he ever ill-treated and forced the plaintiff
to grant him a divorce but she, as a matter of fact, deserted him
and ultimately she decided to grant him a divorce and the
divorce deed in question was executed by her in the office of
the Sub-Registrar of her own free will.
On the basis of the averments in the plaint, the trial court
framed the following issues:
1. Whether the suit divorce deed dated 26.6.1982 is the out
come of undue influence and coercion by the defendant ?
2. If so, is it void and deserves for cancellation ?
3. Whether Court fee paid is proper ?
4. Whether this Court has jurisdiction to try and to entertain the
suit ?
On consideration of the evidence on record, the trial
court came to the conclusion the allegations that the divorce
deed of 26th June, 1982 was obtained by undue influence was
not established by the plaintiff. As stated above, this finding of
the trial court was affirmed by the First Appellate Court which,
however, came to be reversed by the High Court. Shri
P.R.Ramasesh, learned counsel appearing for the defendant
strenuously contended that the High Court erred in interfering
with the concurrent finding of the facts arrived at by the two
courts without framing a question of law in this regard, hence,
on this ground alone, the judgment of the High Court was liable
to be dismissed. He also contended that the approach of the
High Court in regard to appreciation of facts involved in the
case was rather one sided and for reasons wholly outside the
judicial scrutiny. While Ms.Sarda Devi learned counsel for the
plaintiff supported the judgment of the High Court.
In the view that we are inclined to take in this appeal, we
do not think it is necessary for us to go into the contentions
advanced by the learned counsel for the parties in this case,
because we find that the courts below have erroneously
proceeded on the basis that the divorce deed relied upon by the
parties in question was a document which is acceptable in law.
It is to be noted that the deed in question is purported to be a
document which is claimed to be in conformity with the
customs applicable for divorce in the community to which the
parties to this litigation belong to. As per the Hindu Law
administered by courts in India divorce was not recognised as a
means to put an end to marriage, which was always considered
to be a sacrament, with only exception where it is recognised by
custom. Public policy, good morals and the interests of society
were considered to require and ensure that, if at all, severance
should be allowed only in the manner and for the reason or
cause specified in law. Thus such a custom being an exception
to the general law of divorce ought to have been specially
pleaded and established by the party propounding such custom
since said custom of divorce is contrary to the law of the land
and which, if not proved, will be a practice opposed to public
policy. Therefore, there was an obligation on the trial court to
have framed an issue whether there was proper pleadings by the
party contending the existence of a customary divorce in the
community to which the parties belonged and whether such
customary divorce and compliance with the manner or
formalities attendant thereto was in fact established in the case
on hand to the satisfaction of the court. In the instant case, we
have perused the pleadings of the parties before the trial court
and we do not find any material to show that prevalence of any
such customary divorce in the community, based on which the
document of divorce was brought into existence was ever
pleaded by the defendant as required by law or any evidence
was led in this case to substantiate the same. It is true in the
courts below that the parties did not specifically join issue in
regard to this question and the lawyers appearing for the parties
did orally agree that the document in question was in fact in
accordance with the customary divorce prevailing in the
community to which the parties belonged but this consensus on
the part of the counsel or lack of sufficient pleading in the plaint
or in the written statement would not, in our opinion, permit the
court to countenance the plea of customary divorce unless and
until such customary divorce is properly established in a court
of law. In our opinion, even though the plaintiff might not have
questioned the validity of the customary divorce, the court
ought to have appreciated the consequences of their not being a
customary divorce based on which the document of divorce has
come into existence bearing in mind that a divorce by consent is
also not recognisable by a court unless specifically permitted by
law. Therefore, we are of the opinion to do complete justice in
this case. It is necessary that the trial court be directed to frame
a specific issue in regard to customary divorce based on which
the divorce deed dated 26th of June, 1982 has come into
existence and which is the subject matter of the suit in question.
In this regard, we permit the parties to amend the pleadings, if
they so desire and also to lead evidence to the limited extent of
proving the existence of a provision for customary divorce
(otherwise through the process of or outside court) in their
community and then test the validity of the divorce deed dated
26.6.1982 based on the finding arrived at in deciding the new
issue.
With the above directions, we set aside the judgment and
decree of the courts below and remand the matter back to the
trial court to frame an appropriate issue in regard to the
existence of a provision for customary divorce in the
community of the parties to these proceedings to get a marriage
dissolved except through the process of or outside the court.
The trial court will consider afresh the case of the parties set up
in the suit after deciding the issue now directed to be framed by
us, without any manner, being influenced by the earlier finding
given by the court below including the High Court.
For the reasons stated above, this appeal is allowed and
the matter now remanded back to the trial for fresh disposal in
accordance with the law and in the light of the observations
made in this appeal.
.....................................J.
(N.Santosh Hegde)
......................................J.
February 1, 2002. (Doraiswamy Raju)
