Bombay High Court
Bhagwan Ramrao Deshmukh vs Virbhadra Bhagwan Deshmukh And ... on 19 January, 2022
Bench: Mangesh S. Patil
.. 1 .. SA.32.2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
928 SECOND APPEAL NO.32 OF 2019
Bhagwan Ramrao Deshmukh .. Appellant
Versus
Virbhadra Bhagwan Deshmukh and another .. Respondents
...
Mr. Amol Joshi, Advocate for the Appellant
...
WITH
CIVIL APPLICATION NO.1462 OF 2019
....
CORAM : MANGESH S. PATIL, J.
DATE : 19-01-2022
PER COURT :
. This is an appeal under Section 100 of the Code of Civil
Procedure by the original defendant aggrieved by the dismissal of his
first appeal by the District Court by the Judgment and order under
challenge confirming a decree for partition and separate possession of
respondents - plaintiffs share in the suit lands.
2. Respondent nos.1 and 2 posing themselves to be the
legitimate son and legally wedded wife, respectively, of the appellant
filed a suit for partition inter alia averring that he was addicted to
.. 2 .. SA.32.2019
vices and their share in the suit lands, which are ancestral and joint
family properties, would be at risk.
3. The appellant did not dispute the fact that the suit lands
are the ancestral properties. However, he denied that respondent
no.2 was his legally wedded wife. He contended that he was already
married to one Vachalabai and the marriage was still subsisting, albeit
he admitted to be having illicit relations with respondent no.2 and
also admitted to have fathered respondent no.1 through her.
4. Based on such pleadings, the issues were framed and
evidence was led. The trial court concluded that appellant no.2 was
the legally wedded wife of the appellant and respondent no.1 was
their child. Having reached such a conclusion, it decreed the suit by
working out share of each of the parties to be 1/3rd in all the suit
lands.
5. The appellate court has concurred with such
observations and conclusions.
6. Mr. Joshi, learned advocate for the appellant would
vehemently submit that the fact that the appellant was already
.. 3 .. SA.32.2019
married to one Vachalabai, was duly established on the record.
In view of such eventuality, the onus had shifted to the respondents to
prove that the matrimonial relation between the appellant and
Vachalabai were severed by some legally acceptable mode. He would
further submit that since admittedly, there was not a formal divorce
between the duo, it was for the respondents to have established a
custom prevailing in the community as is required by Section 29 of
the Hindu Marriage Act. He would further submit that a half-hearted
attempt was made to prove such custom, but that was not proved by
leading relevant evidence as is required by Section 48 of the Indian
Evidence Act. Though the witnesses of the respondents simply stated
about there being a customary divorce by executing a bond, the
custom was not proved in the strict sense. Both the courts below had
grossly erred in reaching a conclusion about there being legal
severance of marital status between the appellant and Vachalabai.
7. Furthermore, learned advocate Mr. Joshi would submit
that once it is found that there was no divorce between the appellant
and Vachalabai the logical consequence would be that there could not
have been a legal marriage between the appellant and respondent
no.2. As a consequence, respondent no.1 also would be their
illegitimate child. If that be so, by virtue of Section 16 (3) of the
.. 4 .. SA.32.2019
Hindu Marriage Act, being an illegitimate child, respondent no.1
would be entitled to inherit a share in the parents property which
cannot happen during the life time of the appellant. He would
therefore submit that all these facts, circumstances and material give
rise to substantial questions of law as formulated in the appeal memo
which need an answer at the hands of this court.
8. I have carefully considered the submissions and perused
the papers.
9. As has been cursorily mentioned herein above, the entire
dispute revolves around the fact as to whether the respondent no.2
can be said to be the legally wedded wife of the appellant. If the
answer to this question is in the affirmative, as has been concurrently
found by the courts below, the matter ends. Inasmuch as the logical
and legal corollary would be that the respondents would be entitled
to partition and separate possession of the suit lands. If the answer
to this question is in the negative, the submissions of the learned
advocate will have to be accepted.
10. Bearing in mind the fact that the matter in hand is a civil
dispute, the parameters of which for proof of facts are well settled.
.. 5 .. SA.32.2019
The facts are expected to be proved on the preponderance of
probabilities as against a strict proof as is required in a criminal case.
11. One need not delve deep to find out as to whether
strictly speaking there was enough evidence before the courts below
in concluding that there was a custom of effecting divorce by
executing a bond in the community to which the parties belong.
Some attempt was made to prove such custom by examining the
father of respondent no.2 namely Sangram Manika Noubate (PW-2)
and father of Vachalabai namely Digambar Mahaduppa Kornule
(PW-3). Keeping aside even the evidence in this respect, there is one
clinching circumstance which, in my considered view, seals the fate of
the second appeal.
12. As has been pointed out by the courts below, though the
suit was filed in the year 2004 wherein the appellant filed the
written-statement in the year 2008 denying the fact that respondent
no.2 was his legally wedded wife and respondent no.1 was their
legitimate child, in the year 2010 he filed a petition for dissolution of
marriage under Section 13 of the Hindu Marriage Act against
respondent no.2 attributing her to be his legally wedded wife. Not
only that but even he subsequently stepped into the witness box and
.. 6 .. SA.32.2019
testified about such relation being legitimate and legal. Based on
such clinching circumstance, the courts below have rightly taken a
plausible view that the fact as to whether respondent no.2 is a legally
wedded wife of the appellant was duly established in view of such
implied admission and conduct of the appellant. Pertinently, he did
not file a proceeding for declaration of nullity of marriage as is
contemplated under Section 12 of the Hindu Marriage Act, but had
chosen to file a petition for dissolution of marriage under Section 13
of the Hindu Marriage Act.
13. Interestingly, in spite of such happenings, the appellant
was bold enough while recording his testimony in the present
proceeding before the trial court which was recorded in the year
2012 in denying the fact of respondent no.2 being his legally wedded
wife, albeit he admitted to have recorded his testimony in the Hindu
Marriage Petition. In view of such state-of-affairs, irrespective of the
fact as to whether the custom of obtaining a divorce by executing a
deed of divorce was duly established, aforementioned circumstances
clearly demonstrate that both the courts below have rightly reached a
conclusion based on the available evidence about the respondent no.2
being legally wedded wife of the appellant and respondent no.1 being
their legitimate child.
.. 7 .. SA.32.2019
14. Once having reached such a conclusion, the further
discussion is certainly obviated inasmuch as suit lands being
ancestral and joint family properties and respondent no.1 having a
birth right to claim a partition during the life time of his father - the
appellant. The shares worked out by the trial court and confirmed by
the appellate court declaring each of them to be entitled to 1/3rd
share is certainly legal and unassailable.
15. No substantial question of law as is being propounded in
fact arises for the determination in this second appeal. Second
Appeal is dismissed.
16. In view of disposal of Second Appeal, nothing survives
for consideration in the Civil Application and the same stands
disposed of.
( MANGESH S. PATIL )
JUDGE
...
Gajanan
