C/FA/4772/2022 ORDER DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4772 of 2022
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CHETANKUMAR AMRATLAL PATEL
Versus
JAYSHREEBEN PATEL D/O JAGJIVANBHAI AMBARAM PATEL
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Appearance:
MR HARDIK H DAVE(6295) for the Appellant(s) No. 1
MR UJJWAL R SAREEN(11635) for the Appellant(s) No. 1
MR DWIJEN S PANDYA(10887) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 15/03/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of present appeal under Section 96 of the Code of Civil Procedure, the appellant original plaintiff has challenged the legality and validity of judgment and order dated 14.10.2022 passed by the learned Principal Judge, Family Court, Mehsana in Family Suit No. 41 of 2022.
2. The brief background of present appeal is that the appellant herein has filed Family Suit No. 41 of 2022 before the learned Principal Judge, Family Court, Mehsana praying inter alia for declaration that marriage between the defendant and Page 1 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023 C/FA/4772/2022 ORDER DATED: 15/03/2023 the present appellant was dissolved by virtue of Divorce Deed dated 20.03.2015 through customary divorce which is a well recognized custom prevailing in the community where both the parties are belonging to 'Kadva Patel' community and as such, suit came to be filed.
2.1. The appellant got married to the defendant on 11.12.2009, but on account of stiff differences of opinion and lifestyle, dispute arose between them and the situation of irrevocable nature erupted which has resulted into irretrievable breakdown of marriage life between the appellant and the defendant. Despite the efforts made by the family members and the community members, marriage issue could not be resolved and as such, divorce deed on stamp paper came to be executed on 20.03.2015 and based upon such, Family Suit was filed. The learned Principal Judge, Family Court at Mehsana was pleased to dismiss the suit on the ground that the appellant has failed to prove customary divorce which is prevailing in the community and it is this judgment and order passed by the learned Principal Judge, Family Court, Mehsana is made the subject matter of present appeal before us.
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C/FA/4772/2022 ORDER DATED: 15/03/2023
3. On the basis of submissions made at the relevant point time, the co-ordinate Bench of this Court was pleased to issue notice for final disposal by order dated 11.01.2023 and pursuant to that, present first appeal has come up for consideration and both the learned advocates have jointly requested to take up the appeal in view of the situation prevailing between the parties. Hence, upon their request, we took up the appeal for its disposal.
4. Mr. Hardik H. Dave, learned advocate appearing for the appellant has contended that the learned Principal Judge, Family Court, Mehsana has committed a serious error in observing that the appellant has failed to prove customary divorce. In fact, according to learned advocate Mr. Dave, the entire suit was based upon the document which came to be executed by consent, signed by both the parties and their respective members and which has been executed in due deference to their custom which is prevailing. Both the appellant and the defendant are members of 'Kadva Patel' community wherein this custom is very much prevailing and Page 3 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023 C/FA/4772/2022 ORDER DATED: 15/03/2023 though it was specifically pointed out before the learned Principal Judge, Family Court, Mehsana, an erroneous reason is assigned and as such, the order impugned deserves to be quashed.
4.1. Learned advocate Mr. Dave has further submitted that this custom which is prevailing is a recognized custom and it has been taken note of previously by this Court whenever such issue has erupted and to substantiate his contention, learned advocate Mr. Dave has drawn attention of this Court to page 34 (Annexure-D) which an order dated 10.12.2010 passed in First Appeal 4169 of 2010 wherein also the case was amongst Kadva Patel community and on similar situation, divorce deed was executed and based upon such, even the Division Bench of this Court was pleased to allow the appeal by declaring that the said custom is prevalent. An attention has been drawn to paragraph 11 by learned advocate Mr. Dave. Yet another order which has been placed on record for consideration is in the case of very same community, wherein the co-ordinate Bench was also pleased to allow First Appeal on the similar line by order dated 25.02.2022 which is annexed to appeal at Annexure-C on page Page 4 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023 C/FA/4772/2022 ORDER DATED: 15/03/2023 29 and by referring to this decision, learned advocate Mr. Dave has submitted that here the facts are almost similar and as such, the error committed by the learned Principal Judge, Family Court, Mehsana deserves to be corrected by setting aside the impugned order.
4.2. Yet another circumstance which has been pointed out by learned advocate Mr. Dave is that despite the fact that material on record is clearly suggesting that custom is prevailing and that is practically admitted by both the sides which is reflecting from the depositions of appellant and defendant as well, the learned Principal Judge, Family Court, Mehsana has assigned reason that the customary divorce is not proved. Learned advocate Mr. Dave has pointed out deposition of the appellant (Exhibit-12) and in particular in cross-examination, it has been clearly asserted that this customary divorce is prevailing in the community. Further even in the deposition of the defendant at Exhibit-19, in cross-examination, she has also clearly asserted that this kind of customary divorce on stamp paper with concurrence is permissible in the community and there are several examples of such and as such, this issue about Page 5 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023 C/FA/4772/2022 ORDER DATED: 15/03/2023 customary divorce is clearly an admitted position by both the sides as recorded and still the learned Principal Judge, Family Court, Mehsana has assigned reason which is perverse to the record and as such also, the order impugned deserves to be quashed. In addition to it, learned advocate Mr. Dave has submitted that the very learned Principal Judge, Family Court who passed earlier order has taken note of the previous order of Division Bench as stated above in First Appeal 4169 of 2010 and passed an order and as such, this being the situation, the present First Appeal deserves to be allowed.
5. As against this, Mr. Dwijen Pandya, learned advocate representing the defendant has on instructions specifically conveyed that there is no objection if the appeal is allowed as prayed for and as such, has not opposed the request made by the appellant.
6. Having heard the learned advocates appearing for the respective parties and having gone through the aforesaid submissions and the record which has been placed before us, undisputed position which is prevailing on record is that both Page 6 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023 C/FA/4772/2022 ORDER DATED: 15/03/2023 the appellant and the defendant have asserted specifically before the learned Principal Judge, Family Court, Mehsana that customary divorce on stamp paper is a custom prevailing in the community to which both are belonging and further in past also there are several such instances and as such, this factum of customary divorce in the community on record is found to be not in dispute and the depositions at Exhibit-19 and Exhibit-12 are clearly suggesting the aforesaid situation. 6.1. Yet another circumstance that two co-ordinate Benches of this Court have dealt with almost similar situation in which after ascertaining the factum about such custom which is prevailing in Kadva Patel community, appeals came to be allowed. One of such decision is dated 10.12.2010 passed in First Appeal No. 4169 of 2010 in which by taking note of such document of divorce executed by the parties, marriage was declared as dissolved and the appeal came to be allowed. Yet another order which has been delivered by the co-ordinate Bench is dated 25.02.2022 in First Appeal No. 358 of 2022 wherein also divorce agreement dated 22.09.2000 was taken note of and further considering the earlier decision of the Division Bench, the Court Page 7 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023 C/FA/4772/2022 ORDER DATED: 15/03/2023 was pleased to allow the appeal by setting aside and modifying the judgment passed by the Family Court in Family Suit No. 82 of 2017.
6.2. In the wake of aforesaid two decisions, upon perusal of the divorce agreement which is placed at Annexure-A, which is undisputedly signed by both the parties and the factum of dissolution of marriage by consent is deduced in writing and further it is reflecting that the said dissolution has taken place with intervention and in the presence of respected community members and the elderly persons and arrangement has also been made in respect of welfare of daughter 'Khushi' who was born out of the wedlock and as such, after taking into consideration the welfare of the daughter, with the consent of both the parties, dissolution has taken place and the signatures appended on it are not disputed by the either party nor before this Court. On the contrary, a specific assertion has been made that if the appeal is allowed, the defendant has no objection. However, the appellant in his deposition at Exhibit-12 has specifically asserted in cross-examination that it is true that in the community, such kind of customary divorce is prevailing. Page 8 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023
C/FA/4772/2022 ORDER DATED: 15/03/2023 Not only that, even the defendant in her deposition at Exhibit-19 has also clearly admitted in cross examination that such kind of customary divorce by consent on stamp paper is recognized and there are several such instances which have taken place in the community and has clearly admitted that when the marriage with the appellant is dissolved by virtue of this document dated 20.03.2015, and when this be the situation prevailing, the view taken by the learned Principal Judge, Family Court, Mehsana is not possible to be accepted, rather it is perverse to the record. The situation prevailing on record is not only in the form of cross-examination, but on the basis of undisputed document. The conclusion arrived at by the learned Principal Judge, Family Court, Mehsana to the effect that the appellant has failed to prove customary divorce is not possible to be considered in consonance with the relevant record and as such, the finding arrived at by the learned Principal Judge, Family Court, Mehsana is erroneous, perverse and runs counter to the well propounded proposition. The entire suit was based upon this very document which is not in dispute and as such, to conclude that the appellant has failed to prove is appearing to be Page 9 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023 C/FA/4772/2022 ORDER DATED: 15/03/2023 erroneous and such patent error committed by the learned Principal Judge, Family Court Mehsana, we deem it proper not to perpetuate. Accordingly, it appears that a case is made out by the appellant.
7. At this stage, we may deem it proper to quote the relevant observations made by the Division Bench of this Court in First Appeal No. 358 of 2022 dated 25.02.2022, which reads thus :
"7. We have heard learned advocates appearing for the respective parties. Perused the judgment and decree passed by the Family Court, the Deed of Dissolution of Marriage executed between the parties on 22.09.2000, by which, they have taken divorce as per their customs. We are in agreement with the observations made by the Division Bench of this Court in Para, 6, 7, 7.1, 8, 9, 10 and 11, which are as under:
"6. Upon going through the plaint, we find that the Suit was filed under Sections 7 & 8 of the Family Courts Act, Section 3 of the Hindu Marriage Act and Sections 31, 32, 34 & 35 of the Specific Reliefs Act, seeking a declaration that the divorce by a registered customary divorce-deed was legal and valid and further a declaration that the parties have ceased to be the husband and wife. Meaning thereby, a declaration on marital status of the parties was sought.
7. Section 7 of the Family Courts Act, 1984 provides that subject to the provisions of the Act, Family Court shall have and exercise all the jurisdiction exercisable by any district Court or any subordinate Page 10 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023 C/FA/4772/2022 ORDER DATED: 15/03/2023 civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation.
7.1 The Explanation states that the suits and proceedings referred to in the said sub-section are suits and proceedings of the nature, which would include a suit or proceeding for a declaration as to the validity of a marriage or as to matrimonial status of any person.
8. In our view, if the reliefs sought in the suit are seen, they squarely fall within the above description viz., declaration as to the validity of a marriage when the party states that customary divorce taken by the parties by executing a deed be declared to be valid. It decides the validity of the matrimonial relationship and the declaration that the parties are no more husband and wife, would be on their matrimonial status.
9. The Family Court, therefore, has committed an error in coming to the conclusion that it had no jurisdiction to grant the reliefs sought in the plaint.
10. There is no point in remanding the matter to the Trial Court for deciding it afresh, as it would be again a time consuming process.
11. There is no dispute between the parties that they belong to "Kadva Patidar" community. It is a well settled proposition of law that customary divorce is prevalent in this community and, therefore, the document of divorce executed by the parties and registered with the Sub-Registrar, Ahmedabad, is a valid document of divorce and would validly snap the relationship of husband and wife between the parties. The said document was executed on 19.2.2009 and registered on 5.3.2009. The Suit was filed on 7.5.2010. The marriage was solemnized on 9.5.2004. In any event, the parties have lived Page 11 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023 C/FA/4772/2022 ORDER DATED: 15/03/2023 separately, at least, for a period of more than one year because it is nobody's case that after execution of the Divorce-Deed, they have ever lived together. If we would examine from any angle their relationship, marital life between the spouse stands snapped. The moment we conclude that the Divorce Deed is a valid document of divorce between the parties, their relationship snaps and they cease to be husband and wife."
8. In view of the above facts and circumstances of the case which are prevailing on record, the present appeal stands allowed. The impugned judgment and order dated 14.10.2022 passed by the learned Principal Judge, Family Court, Mehsana in Family Suit No. 41 of 2022 is hereby quashed and set aside and the marriage between the appellant and the defendant is dissolved from the date of deed of dissolution of marriage dated 20.03.2015.
Registry to drawn decree accordingly.
(ASHUTOSH SHASTRI, J) (NISHA M. THAKORE,J) phalguni Page 12 of 12 Downloaded on : Fri Mar 17 20:37:26 IST 2023