Bombay High Court
Manikabai Shrawan Shende vs Rekha Shrawan Shende & 3 Ors on 6 July, 2017
Bench: A.S. Chandurkar
SA530.07.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.530 OF 2007
APPELLANT: Manikabai wd/o Shrawan Shende,
(Ori. Plaintiff) Aged about - 40 years, Occu-Labour,
(On R.A.) R/o Shivaji Ward, Bhandara.
-VERSUS-
RESPONDENTS: 1. Sau. Rekha Shrawan Shende, joined in
(Orig. Defts. On the case as Sau. Rekha Raju Joshi,
R.A.
daughter of Mahadeo Jarond, Aged
about 36 years, Occu-Nil, R/o Panchseel
Nagar, Nagpur.
(Ori. Def No.-3) 2. State of Maharashtra, through Collector,
Bhandara.
(Ori. Def No-2) 3. The Tahsildar, Pauni, Tah-Pauni, Dist -
Bhandara.
4. Additional Divisional Manager
(Railway) Nagpur.
Shri Amol Mardikar, Advocate for the appellant.
Shri S. D. Malke, Advocate for respondent no.1.
Shri Z. A. Shekhani h/f Shri R. G. Agrawal, Advocate for
respondent no.4.
CORAM: A.S. CHANDURKAR, J.
DATED: 06
th JULY, 2017.
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ORAL JUDGMENT :
1. The following substantial question of law arises in the
second appeal:
Whether the finding of the First Appellate
Court that there was no pleading of custom in
the plaint and ignoring the evidence on record
with regard to the custom was per se
perverse ?
2. The appellant is the original plaintiff who claims to
have married one Shrawan Tulshiram Shende on 7-9-1990.
According to her, said Shrawan was working with the Railways
and he expired on 26-11-1995. It is her further case that Shrawan
had earlier married defendant no.3 Rekha and there was a
customary divorce between both of them. After the said divorce
the appellant had married Shrawan. On account of death of
Shrawan dispute arose with regard to grant of pension and other
service benefits. Hence, on 5-10-1998 a suit for declaration that
the plaintiff was the legally wedded wife of Shrawan was filed
with a further declaration that the defendant no.3 had no legal
status.
3. The defendant no.3 filed her written statement and
took the stand that the plaintiff had got married during subsistence
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of her marriage with Shrawan. It was then pleaded that the
defendant no.3 alone was entitled for further benefits.
4. After the parties led evidence, the trial Court decreed
the suit by holding that the marriage between the plaintiff and
Shrawan was valid. She was held entitled to benefits flowing from
the employment of Shrawan.
5. The appellate Court reversed this judgment by holding
that the marriage of the plaintiff was not valid and that it was
during subsistence of the marriage of the defendant No.3. The
suit, therefore, came to be dismissed and hence, the present
appeal.
6. Shri Amol Mardikar, learned Counsel for the appellant
submitted that the plaintiff had specifically pleaded by amending
the plaint that there was a custom in the Buddhist community to
grant divorce. The evidence was also led in support of the
aforesaid pleading by examining PW-3 who had deposed in that
regard. Though a divorce deed was placed on record, the same
was not exhibited. The appellate Court, however, merely on the
basis of the provisions of Section 29 of the Hindu Marriage Act,
1955 (for short the Act), did not go into that question and
proceeded to observe that there was no evidence to indicate that
customary divorce was being uniformly observed. Relying upon
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the judgment of the Hon'ble Supreme Court in Yamanaji H.
Jadhav v. Nirmala AIR 2002 SC 971, it was submitted that as the
aspect of customary divorce had been pleaded and evidence was
also led, it was necessary for the appellate Court to have
considered the same. He also placed reliance on the decision in
Jairam Somaji More v Sindhubai w/o Jairam 1999(3) Mh.L.J. 872.
7. Shri S. D. Malke, learned Counsel for respondent no.1
supported the impugned judgment. According to him, the
appellate Court was justified in refusing to recognize the aspect of
customary divorce. He referred to the deposition of PW-3 and
submitted that said evidence was not sufficient to prove the same.
He urged that the marriage of the appellant itself was illegal as it
was performed during subsistence of the earlier marriage.
Shri Z. A. Shekhani, learned Counsel appeared for
respondent no.4.
8. I have heard the learned Counsel for the parties at
length and have perused the records of the case. In para 2 of the
plaint as amended the plaintiff specifically pleaded that mutual
divorce was permissible in Buddhist community to which the
parties belonged and after such divorce there could not be any
marital relations for a period of two years. It was pleaded that the
plaintiff had married Shrawan after a period of two years. In the
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written statement filed by defendant no.3, there was no specific
denial to the practice of mutual divorce in a customary manner.
The plaintiff had examined PW-3 in that regard at Exhibit-66. This
witness deposed about the custom prevailing in his community.
The trial Court on that basis upheld the customary divorce and
then proceeded to hold that the plaintiff was the legally wedded
wife of Shrawan. The appellate Court by referring to provisions of
Section 29(1) of the said Act did not accept the case of the
plaintiff.
9. As per provisions of Section 29 (2) of the said Act,
customary rights of the parties have been saved. When such
custom is an exception to the general law on divorce, it has been
observed in Yamanaji Jadhav (supra) that the same is required to
be pleased and proved by the party propounding such custom. The
decision in Jairam Somaji More (supra) has to consider the effect
of Section 29(2) of the said Act.
10. The cause of action for filing the suit was with regard
to entitlement of the service benefits of Shrawan after his demise.
This adjudication also concerns the status of the plaintiff as well as
defendant no.3. Considering the pleadings in para 2 of the plaint
and the deposition of PW-3 (Exhibit-66), it can be said that the
plaintiff had pleaded and had thereafter attempted to prove
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customary divorce. Though the divorce deed was brought on
record by the plaintiff, the same could not be exhibited as it was
found in the custody of Shrawan after his death. Considering the
legal position as enunciated in Jairam Somaji More (supra), I find
that the appellate Court was not justified in relying upon the
provisions of Section 29(1) of the said Act while dismissing the
suit. Considering the pleadings of the parties and the evidence
brought on record, I find that the material on record deserves to be
considered afresh in the light of the law laid down in Yamanaji H.
Jadhav (supra). This is all the more necessary considering the
nature of dispute and the effect the adjudication would have on
the status of the parties.
11. The substantial question of law as framed is answered
by holding that the finding of the appellate Court that there was
no pleading of custom in the plaint and by ignoring the evidence
on record with regard to custom is perverse.
12. In the result, the following order is passed:
ORDER
(1) The judgment in Regular Civil Appeal No.150/2005
dated 3-3-2007 as well as the judgment of the trial Court in
Regular Civil Suit No.163 of 1998 dated 20-10-2005 are quashed
and set aside. The proceedings are remanded to the trial Court for
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fresh adjudication in accordance with law. The record and
proceedings be sent to the trial Court forthwith.
(2) In addition to evidence which is available on record,
the parties are at liberty to lead additional evidence if they so
desire.
(3) The proceedings in Regular Civil Suit No.163/1998 are
expedited and the trial Court shall decide the suit by the end of
December, 2017 on its own merits and without being influenced
by any observations in this order.
(4) The appeal is allowed in aforesaid terms. No costs.
JUDGE
/MULEY/
