Dadaji Dagaji Khairnar vs Vijaya Dadaji Khairnar
2021 Latest Caselaw 12046 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                        35 SECOND APPEAL NO.573 OF 2013
                       WITH CA/11857/2013 IN SA/573/2013


                                   DADAJI DAGAJI KHAIRNAR
                                           VERSUS
                         SAU. VIJAYA W/O DADAJI KHAIRNAR
                                             ...
                   Mr. C.R. Deshpande, Advocate for the appellant
     Mr. R.S. Banik, Advocate h/f Mr. V.P. Latange, Advocate for the sole
                                         respondent
                                             ...

                                        CORAM :     SMT. VIBHA KANKANWADI, J.
                                        DATE :      30th AUGUST, 2021.


ORDER :

1 Heard learned Advocate Mr. C.R. Deshpande for the appellant

and learned Advocate Mr. R.S. Banik holding for learned Advocate Mr. V.P.

Latange for the sole respondent.

2 Present appeal has been filed by the original defendant

challenging the Judgment and Decree passed in Regular Civil Appeal

No.26/2010 by learned Adhoc District Judge-1, Dhule, thereby allowing the

appeal filed by the original plaintiff on 03.05.2013, thereby reversing the

2 SA_573_2013

Judgment and Decree passed by learned 4 th Joint Civil Judge Junior Division,

Dhule in Regular Civil Suit No.429/2004 dated 28.01.2010 and thereby

decreeing that suit. The present respondent-original plaintiff had filed the

said suit i.e. Regular Civil Suit No.429/2004 for declaration that the Divorce

Deed dated 20.02.1989 is illegal and against customs of the community of

the plaintiff and defendant. The said suit was dismissed by the learned Trial

Court by holding that the plaintiff has failed to prove that the said Divorce

Deed was null, executed from her by coercion. She failed to prove that the

divorce being not a customary mode of divorce is null and void. It was held

that the suit is not within limitation. The plaintiff challenged the said

Judgment and Decree in the said Regular Civil Appeal No.26/2010 and the

learned First Appellate Court after re-appreciation of evidence, which was

permissible under Section 96 of the Code of Civil Procedure, 1908 held that

the plaintiff had proved that the Divorce Deed dated 20.02.1989 got

executed from plaintiff was due to coercion caused due to defendant and it is

null and void as against the custom. It was held that the suit is within

limitation.

3 The learned Advocate appearing for the appellant submitted that

the matter deserves to be admitted, as it is raising substantial questions of

law. The Courts below are not concurring with the facts as well as on the

3 SA_573_2013

point of law. The document of Divorce Deed was admittedly executed by the

plaintiff on 20.02.1989. So also, the learned First Appellate Court failed to

consider that plaintiff herself had filed application for maintenance under

Section 125 of the Code of Criminal Procedure, 1973, vide Criminal

Miscellaneous Application No.8/1991, for getting maintenance to herself and

her son. The said application came to be dismissed as against the plaintiff,

but then monthly maintenance @ Rs.250/- was granted to her son. The said

Judgment was confirmed by the Sessions Judge. Plaintiff had then

approached to this Court by filing Writ Petition No.265 of 1996. The High

Court has restored the Criminal Miscellaneous Application No.8/1991, for

fresh hearing, in connection with the plaintiff, as regards her right to claim

maintenance. Therefore, when she had the knowledge about the execution

of the document, her suit filed on 03.12.2004 cannot be said to be within

limitation. Reliance has been placed on the decision in Satyabhamabai

(deceased by LR) and etc. vs. Pandurang Marotrao Pawar, AIR 1990 BOMBAY

134. In this case, execution of deed of relinquishment by illiterate old lady

was sought to be cancelled in civil suit. It was contended in the suit for

cancellation of the said deed that the thumb impression on deed was

obtained by fraud and misrepresentation. However, the evidence that was

brought on record showed that plaintiff had the knowledge about the said

deed in 1967 during mutation proceedings and, therefore, the suit that was

4 SA_573_2013

filed in the year 1978 was held to be barred by limitation. The learned

Advocate for the appellant, therefore, submits that the point of limitation

being substantial question of law deserves to be framed and for that purpose

appeal deserves to be admitted.

4 Learned Advocate for the respondent supported the reasons

given by the First Appellate Court and submitted that since the facts and

evidence was not considered by the learned Trial Judge properly, the plaintiff

was required to file the appeal and the First Appellate Court has considered

the facts as well as law properly, it need not be disturbed in the Second

Appeal.

5 At the outset, it is to be noted that though it was contended by

the plaintiff that the said document is against the custom, it appears that the

learned Trial Judge has wrongly put burden on the plaintiff to show that the

Divorce Deed is not as per customary mode. The issues should be framed as

far as possible in affirmative language and negative burden cannot be put on

a party. It appears that both the parties are Hindu and, therefore, the First

Appellate Court has rightly relied on the decision in Rameshchandra

Rampratapji Daga vs. Rameshwari Rameshchandra Daga, (2005) 2 SCC 33,

wherein it has been held that, "Marriage can be dissolved only in accordance

with the provisions of the Act by obtaining a decree of divorce from the

5 SA_573_2013

Court. In absence of any decree of dissolution of marriage from the Court,

marriage cannot be dissolved". Here, a registered document of dissolution of

marriage has been executed, which, according to the plaintiff, it is got

executed by coercion. Even if for the sake of argument we presume that

there was no such coercion; yet, when there could not have been the legal

divorce between them except by a decree, the execution of such document

itself was illegal and void ab initio. This fact appears to have not been

considered by the learned Trial Court. The burden ought to have been on the

defendant to prove that there is a custom in his community to take such kind

of divorce. He ought to have led positive evidence to prove such customary

divorce. But it appears that he has not led that kind of evidence.

6 When we are coming to a conclusion that a marriage cannot be

dissolved except by a decree and in case of customary divorce it has to be

proved by the propounder thereof, then the document, which was got

executed from the plaintiff herein, is void ab initio. It was not even necessary

that it should have been got cancelled. Though it appears in this case, there

is knowledge of execution of that document to the plaintiff and she had filed

application for maintenance; yet, her suit cannot be dismissed on the count

of limitation, as it can be said that the question was related to a legal

character or status of the plaintiff and according to the plaintiff, her marital

6 SA_573_2013

tie is still in existence, which she was able to prove and the registration of

that document could not have given any status to the defendant. If a

document is void ab initio, it is void from its inception and, therefore, it can

be get so cancelled at any point of time. At the costs of repetition, it can be

said that it was not even necessary to get it cancelled because it is void ab

initio. The appreciation of evidence as well as the legal point involved by the

First Appellate Court is proper and legal and, therefore, it is not giving rise to

any substantial question of law, as contemplated under Section 100 of the

Code of Civil Procedure, 1908. Hence, the Second Appeal stands dismissed.

Civil Application No.11857 of 2013 stands disposed of.

( Smt. Vibha Kankanwadi, J. )

agd