CASE NO.:
Appeal (civil) 3966 of 2003
PETITIONER:
SUBRAMANI AND ORS.
RESPONDENT:
M. CHANDRALEKHA
DATE OF JUDGMENT: 23/11/2004
BENCH:
ASHOK BHAN & A.K. MATHUR
JUDGMENT:
JUDGMENT
2004 Supp(6) SCR 285
The Judgment of the Court was delivered by
BHAN, J. : This appeal by grant of leave has been filed by the defendants-
appellants against the judgment and order of the High Court of Judicature
at Madras in Second Appeal No. 11 of 1991. High Court by the impugned
judgment has set aside the judgments and decree passed by the courts below
and has decreed the suit filed by the plaintiff-respondent herein.
Facts relevant to resolve the controversy in this appeal are :
Perianna Gounder (who died during the pendency of the suit) had three sons,
namely, Late Natessa Muthu @ Perianna Gounder, Subramani (appellant No. 1)
and Kandasamy. Pongiammal and Rajeswari (minor) appellants 2 and 3 are the
wife and daughter of Late Natessa Muthu. Plaintiff-respondent M.
Chandralekha is the wife of Kandasamy.
According to the plaintiff-respondent (hereafter referred to as the
"respondent") there was a partition in the family in the year 1968 between
the father and his three sons. In that Perianna Gounder was allotted 'A'
schedule property while his three sons were allotted 'B' schedule property.
Subramani and Kandasamy in the year 1980 purchased 'C' schedule property.
Thereafter, in the year 1983 Perianna Gounder settled 'A' schedule property
in favour of Subramani and Kandasamy. 'D' schedule property which is an
agricultural land was purchased again by the two brothers Subramani and
Kandasamy.
Respondent No. 1 was married to Kandasamy in the year 1981. They separated
in the year 1983. Kandasamy died on 21.7.1986. Respondent filed the suit
for partition and possession of schedule properties 'A', 'B' and 'D' and
also claimed mesne profits. It was pleaded that she being the wife of
Kandasamy was entitled to the share of Kandasamy in the schedule
properties. She claimed 1/2 share in 'A', 'C' and 'D' schedule properties
and l/3rd share in 'B' schedule property. That differences arose between
the respondent and Kandasamy due to which the respondent was driven out of
the house and all efforts to reunite them failed. A registered maintenance
release deed, Ex. B-l, came to be executed on 25.10.1984 in which the
respondent on receipt of Rs. 14,000 released her claim towards maintenance.
Later, respondent came to know that while writing Ex. B-l a recital had
been introduced therein that the marriage between the respondent and
Kandasamy stood dissolved under the customary law prevalent in the
community. It was averred that parties belonged to Vellala Gounder
Community and no custom was prevalent in their community to dissolve the
marriage under custom. Even if such a recital was there in the aforesaid
document, the same did not have any legal effect and the relationship
between her and Kandasamy continued to subsist.
Defendants contested the suit- Subramani filed the written statement which
was adopted by appellant Nos. 2 and 3. It was contended that Natessa Muthu
had died seven years prior to the filing of the suit and not twelve years
as alleged in the plaint. That there had been oral partition of 'B'
schedule property as between the appellants and Kandasamy in the year 1983
and therefore the question of enjoying the 'B' schedule property either
jointly or in common did not arise. It was admitted that Kandasamy was
married to the respondent. It was admitted that Schedule properties 'A1 &
'C' had been purchased/settled in favour of Subramani and Kandasamy. It was
denied that these Schedule properties had been purchased by them. It was
pleaded by them that Kandasamy had borrowed Rs. 50,000 from Subramani and
incurred debts to the tune of Rs. 90,000 from third parties. Kandasamy had
directed his brother Subramani to discharge all his debts and in lieu
thereof take his share in the properties, but before executing any deed to
the aforesaid effect Kandasamy committed suicide on 21,7.1986. According to
them, Kandasamy had given up his rights over the suit properties and was
therefore not possessed of any properties at the time of this death.
According to them, marriage between the respondent and Kandasamy had been
dissolved as per dissolution deed (Ex. B-I) and the respondent could not
take advantage of her own fraudulent act. According to them Kandasamy had
committed suicide due to differences with the respondent and therefore the
respondent had no right to seek partition. It was pleaded that respondent
had no right to claim partition nor could she ask the Court to overlook the
marriage dissolution deed (Ex. B-l).
The Trial Court after considering the oral and documentary evidence came to
the conclusion that respondent was entitled to 1/2 share in 'A', 'C' and
'D' schedule properties and 1/3rd share in 'B' schedule property but
dismissed the suit on the ground that in the community to which the parties
belong the marriage could be dissolved under custom and the marriage
between the respondent and late Kandasamy stood dissolved by the marriage
dissolution deed Ex. B-1. The Judgment and decree passed by the trial Court
was upheld in the first appeal. The first Appellate Court concurred with
the Findings recorded by the trial Court.
Being aggrieved respondent filed the Second Appeal in the High Court. At
the time of admission of the appeal the following substantial question of
law said to be arising in the appeal was framed :
"Whether Ex. B-l dated 25.10.1984 can be construed as bringing about a
divorce as contemplated under the provisions of the Hindu Marriage Act and
would operate to extinguish the rights of the appellant in her husband's
properties?"
The only point argued before the High Court was whether the document Ex. B-
l dated 25.10.1984 dissolved the marriage between the respondent and late
Kandasamy. This is the only point argued before us as well.
It is not disputed before us that as per Hindu Law divorce was not
recognized as a means to put an end to marriage which was always considered
to be a sacrament with only exception where it is recognized by custom.
Hindus after the coming into force the Hindu Marriage Act, 1955 (for short
"the Act") can seek to put an end to their marriage by either obtaining a
declaration that the marriage between them was a nullity on the grounds
specified in Section II or to dissolve the marriage between them on any of
the grounds mentioned in Section 13 of the Act. Section 29 of the Act saves
the rights recognized by custom or conferred by special enactment to obtain
the dissolution of marriage, whether solemnized before or after
commencement of the Act. Section 29(2) of the Act reads :
"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
commencement of this Act."
It is well established by long chain of authorities that prevalence of
customary divorce in the community to which parties belong, contrary to
general law of divorce must be specifically pleaded and established by the
person propounding such custom. The High Court came to the conclusion that
the appellants failed to either plead the existence of a custom in their
community to dissolve the marriage by mutual consent or to prove the same
by leading cogent evidence.
Counsel for the parties have been heard.
Respondent had admitted the execution of document Ex. B-l but has taken the
stand that there was no custom prevalent in their community to dissolve the
marriage by mutual consent. In para 5 of the plaint it was pleaded :
"It is now understood that while so doing, it has been written in the said
deed that the marriage between Kandasamy and the plaintiff was cancelled.
The parties was Hindu Vellala Gounder Community. There is no caste - custom
of divorce with them. Hence, even it there is such a recital, it has no
legal effect. Still, the marriage relationship of the plaintiff and
Kandasamy is subsisting."
The above claim of the respondent was dealt with and answered by the
appellants in para 6 of their written statement wherein it was stated as
under
"Plaint paragraph 5 is correct in so far as it relates to the dissolution
of marriage between the plaintiff and the late Kandasamy, the dissolution
deed, and the payment therefor. Now the plaintiff cannot be allowed to take
advantage of her own fraudulent act upon the late Kandasamy and especially
after driving him to the brink of disappointment and desolation and finally
suicide. The plaintiff has no tenable right to claim petition nor can she
ask the court to overlook a substantial document of marriage dissolution
deed."
From a perusal of the above averments in the pleadings, it is clear that
defendants-appellants did not plead that in their community marriage could
be dissolved under custom. They even failed to respond to the averments
made in the plaint that no custom was prevalent in their community to
dissolve the marriage under custom. In the absence of such pleadings the
Trial Court rightly did not frame an issue as to whether the marriage in
the community to which the parties belong could be dissolved under the
custom prevalent in their community. Though no issue was framed on this
point the appellants did examine DWs. 2 and 5 to show that in their
community marriage could be dissolved under the customary law. We have gone
through the statements of these witnesses which have been reproduced
verbatim after translation in the order of the Trial Court On perusal of
their testimonies, it cannot be held that custom was prevalent in their
community to dissolve the marriage by mutual consent. Neither of these
witnesses has stated as to what is the procedure to be followed for
dissolving a marriage under the custom prevalent in their community. It is
not their case that marriage could be dissolved between the husband and
wife in their community by executing a document in the form of an
agreement. The agreement B-l has been signed only by the respondent and her
late husband Kandasamy has not signed the same in the absence of any
pleadings that marriage between the husband and wife could be dissolved in
their community under custom and in the absence of any satisfactory
evidence let in to prove the custom prevalent in the community or the
procedure to be followed for dissolving the marriage it cannot be held that
marriage between the respondent and her husband stood dissolved by
executing the marriage dissolution deed Ex. B-l. It is not proved that the
document Ex. B-l is in conformity with the custom applicable to divorce in
the community to which the parties belong. This Court in Yamanaji H. Jadhav
v. Nirmala, [2002] 2 SCC 637, has held that custom has to be specifically
pleaded and established by leading cogent evidence by the person
propounding such custom. It was held :
"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 to divorce in the community to which the parties belong. As per
the Hindu law administered by courts in India divorce was not recognized as
a means to put an end to marriage, which was always considered to be a
sacrament, with only exception where it is recognized 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 establish by the party propounding such a custom since the 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 pleading 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."
(Emphasis supplied)
We respectfully agree with and follow the view taken by this Court in
Yamanaji H. Jadhav 's case (supra)
Accordingly, we find no merit in this appeal and dismiss the same with no
order as to costs.
