Bombay High Court
Smt. Mangala Snajay Nikure And ... vs Pandurang Tembharu Nikure And ... on 3 August, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.484 OF 2014
APPELLANTS: 1. Smt. Mangala Sanjay Nikure, Aged
about 32 years, Occ : Household,
(Ori. Plaintiffs)
2. Ku. Jyoti d/o Sanjay Nikure, Aged about
11 years, Occ: Nil, Through natural
guardian mother, (On R.A.)
Appellant no.1 and 2 both are R/o
Bodali, Tahsil and Distt: Gadchiroli.
-VERSUS-
RESPONDENTS: 1. Pandurang Tembharu Nikure, Aged
(Ori. Defendants) about 68 years, Occ: Cultivation,
Deleted. 2. Dewalabai Pandurang Nikure,
Both are R/o Bodali, Tahsil and Distt.
Gadchiroli. (On R.A.)
Shri S. V. Sohoni, Advocate for the appellants.
Shri P. P. Pendke, Advocate for the respondent no.1.
CORAM: A.S. CHANDURKAR, J.
DATED: AUGUST 03, 2017.
ORAL JUDGMENT :
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1. Heard the learned Counsel for the parties on the following
substantial question of law:
Whether in the light of the deposition of the father
of appellant no.1 Madhav at Ex.52 as well as the
deposition of Sanjay, her first husband at Ex.88
the appellate Court was justified in reversing the
decree passed by the trial Court ?
2. The appellants are the original plaintiffs. It is their case that
the plaintiff no.1 was initially married with one Sanjay Ghongade on 6-
5-1998. However, on account of differences they got divorced as per the
custom prevailing in the society. On 28-12-2001, a document in that
regard was got prepared and registered. Thereafter plaintiff no.1 came to
reside with her parents. During that period, she entered into relationship
with one Sanjay Nikure. Said Sanjay Nikure started residing with
plaintiff no.1 at her parents house. The plaintiff no.1 conceived from said
relationship and thereafter on 13-7-2004 the plaintiff no.1 married said
Sanjay Nikure. On 9-11-2004 said Sanjay Nikure met with a motor
vehicle accident and expired. The plaintiff no.2 was born from their
relationship on 16-12-2004. In the meanwhile, the parents of Sanjay
Nikure filed a claim petition before the Motor Accident Claims Tribunal,
Gadchiroli seeking compensation for the death of said Sanjay Nikure. In
those proceedings, it was held by the Claims Tribunal that until the legal
heirs of Sanjay Nikure got appropriate declaration from the Civil Court,
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no compensation could be granted in their favour. In this backdrop, the
plaintiffs have filed this suit for a declaration that the plaintiff no.1 was
the legally wedded wife of Sanjay Nikure and plaintiff no.2 was their
daughter.
3. The respondents - defendants filed their written statement
and denied the entitlement of the plaintiffs. It was denied that the
plaintiff no.1 had married their son and that the plaintiff no.2 was their
daughter. It was pleaded that there was no divorce between the plaintiff
no.1 and her earlier husband. On that count, it was prayed that the suit
be dismissed.
4. After the parties led evidence, the trial Court decreed the
suit and held that the plaintiff no.1 was the legally wedded wife of
Sanjay Nikure and the plaintiff no.2 was their daughter. The defendants
being aggrieved challenged this judgment and the first appellate Court
allowed the said appeal and dismissed the suit. Hence, the second
appeal.
5. Shri S. V. Sohoni, learned Counsel for the appellants
submitted that the plaintiffs had led sufficient evidence on record to
indicate the fact that the earlier marriage of the plaintiff no.1 stood
dissolved through customary divorce. It was submitted that the registered
document in that regard at Exhibit-39 indicated the separation of the
plaintiff no.1 from her earlier husband. Such customary divorce was
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permissible and the parties had acted upon the same. He then submitted
that the subsequent marriage of the plaintiff no.1 with Sanjay Nikure
was duly proved. The invitation card at Exhibit-58 as well as deposition
of other witnesses clearly indicated the legal relationship of the plaintiff
no.1 with Sanjay Nikure. He submitted that the observations with
regard to filing of the petition for divorce by the plaintiff no.1 were
without basis as no such proceedings were filed. The registration of the
divorce deed was construed as a proceeding filed in Court and, therefore,
there was some ambiguity in the depositions in that regard. It was then
submitted that the pleadings of the parties and the evidence on record
was sufficient to prove customary divorce which was duly documented
as Exhibit-39. He, therefore, submitted that the appellate Court was not
justified in reversing the decree passed by the trial Court.
6. Shri P. P. Pendke, learned Counsel for the respondent no.1
supported the impugned judgment. According to him, the customary
divorce between the plaintiff no.1 and her earlier husband was not duly
proved. The same did not take place in presence of respectable persons
from the society and merely on the basis of Exhibit-39 it could not be
said that the parties had separated. According to him, the appellate
Court rightly recorded a finding as to absence of proof of the customary
divorce. If the divorce was not proved then the subsequent marriage with
the son of the defendants was void and no right accrued in favour of the
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plaintiffs. He, therefore, submitted that the evidence on record was not
sufficient to pass a decree in favour of the plaintiffs. He placed reliance
upon the judgment of the Hon'ble Supreme Court in Subramani and
others v. M. Chandralekha AIR 2005 SC 485.
7. I have heard the learned Counsel for the parties at length
and I have also perused the records of the case. The plaintiff no.1
examined herself at Exhibit-36. She deposed about her earlier marriage
with Sanjay Ghongade and the subsequent customary divorce that took
place on 28-12-2001. She referred to the registered document at Exhibit-
39 in that regard. In her cross-examination, she stated that she had not
filed any proceedings for seeking divorce against her first husband. She
then deposed about her subsequent marriage and the birth of plaintiff
no.2. The father of plaintiff no.1 was examined below Exhibit-52. He
deposed about the earlier separation on 28-12-2001 and the subsequent
marriage with Sanjay Nikure. Kishor Akhade who was an Advocate
was examined below Exhibit-67. He had prepared the document of
divorce which was then got registered. In his cross-examination, he
stated that he was aware about customs in community of plaintiff no.1 in
the matter of customary divorce. Sanjay Ghongade was examined as
PW-9 at Exhibit-88. He deposed about the earlier marriage and the
customary divorce between them as per Exhibit-39. He further stated that
after that divorce, he again got married. In his cross-examination, he
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referred to the registered document to state that said proceedings were
filed in the Court. PW-3 Bhaiyyaji Netam was examined below Exhibit-
57 who was present at the subsequent marriage of plaintiff no.1. He
referred to the invitation card at Exhibit-58 that was printed for the
marriage of plaintiff no.1 with Sanjay Nikure and denied that he was
deposing false. Another witness examined is Najrika Koharkar at
Exhibit-58. She has deposed about attending the plaintiff no.1's marriage
with Sanjay Nikure. The plaintiffs also examined the Priest who
conducted the second marriage as well as the Secretary of the society in
whose marriage hall the marriage took place. At Exhibit-84 an extract
from the marriage register was also proved.
On behalf of the defendants, the brother of Sanjay Nikure
was examined at Exhibit-125. According to him, the plaintiff no.2 was
born from the earlier marriage and no divorce had taken places.
8. Consideration of the aforesaid evidence indicates that the
father of plaintiff no.1 had clearly deposed about the earlier marriage of
plaintiff no.1 and her subsequent divorce. This fact was reiterated by the
first husband of plaintiff no.1 who was examined at Exhibit-88. The
divorce between the parties is documented on 28-12-2001 as per Exhibit-
39. It is on the basis of this evidence coupled with the deposition of the
plaintiff's witness no.4 at Exhibit-67 that the divorce is sought to be
proved. The trial Court on consideration of this evidence held that the
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first marriage was proved and the parties had separated through
customary divorce on 28-12-2001. For reaching that conclusion, the trial
Court gave importance to the deposition of plaintiff no.1, her father and
her first husband Sanjay Ghongade. Reference was also made to the
deposition of PW-4 in that regard. It has thereafter found that the
plaintiff no.1 had married Sanjay Nikure and that plaintiff no.2 was born
out of said wedlock. The first appellate Court, however, set aside the
finding as regards separation through customary divorce on the ground
that the evidence in that regard was not sufficient.
9. In Subramani and others (supra), it was held by the Hon'ble
Supreme Court that when dissolution of marriage is sought to be relied
upon on the basis of any custom, the same has to be specifically pleaded
and established by such person. It has been pleaded that as per the
prevailing custom of the plaintiff, the customary divorce took place.
This was then sought to be proved by deposing that in the presence of
witnesses such customary divorce took place on 28-12-2001. Perusal of
the document at Exhibit-39 indicates that the same was prepared in
presence of two witnesses. This document has been proved in the
deposition of PW-5 at Exhibit-67. He referred to the plaintiff no.1
belonging to Sav Teli community and her first husband also belonging to
the same community. He further deposed about the knowledge of the
customs regarding birth, marriage and death in that community.
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According to him, with consent of each other, they got separated in the
presence of the members of the community. The brother of Sanjay
Nikure merely denied such custom. Considering the nature of evidence
led by the plaintiffs, a simple statement made on behalf of DW-1 cannot
be termed to be sufficient to dislodge the evidence led by the plaintiffs.
10. The first appellate Court has, however, disbelieved this
evidence and has held against the plaintiffs. Merely because PW-4
belong to a different caste and was an Advocate, his version has been
disbelieved. I find that there was sufficient evidence led by the plaintiffs
to indicate the marriage of plaintiff no.1 with Sanjay Ghongade and the
subsequent customary divorce between them. This was consented by the
father of plaintiff no.1 as well as her earlier husband Sanjay Ghongade
himself. The trial Court having been satisfied with this evidence and
having held the customary divorce to be duly proved, the appellate Court
was not justified in reversing said finding for the reasons assigned by it.
The weight and quality of evidence led by the plaintiffs was sufficient to
reach the conclusion arrived at by the trial Court.
11. Hence, the substantial question of law is answered by
holding that the appellate Court was not justified in reversing the
judgment of the trial Court in the light of evidence on record. In view
thereof, the judgment dated 18-9-2014 in Regular Civil Appeal
No.20/2013 is quashed and set aside. The judgment of the trial Court in
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Regular Civil Suit No.47/2008 dated 25-4-2013 stand restored. The
second appeal is allowed in aforesaid terms. No costs.
JUDGE
/MULEY/
