Chattisgarh High Court
Smt. Chitrekha Kawar vs Anand Rameshwar on 20 December, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment Reserved on 27.09.2022
Judgment Delivered on 20.12.2022
FAM No. 133 of 2018
• Smt. Chitrekha Kawar D/o Shri Itwar Singh Kawar, Aged About
26 Years R/o Village Balco Nagar, Korba, Tahsil And District
Korba Chhattisgarh.
---- Appellant
Versus
• Anand Rameshwar S/o Nohar Lal Kawar, Aged About 29 Years
R/o Village - Madwadhodha, Tahsil Katghora, District Korba
Chhattisgarh.
---- Respondent
For Appellant : Shri Akash Agrawal, Advocate on
behalf of Shri Ravindra Sharma, Advocate
For Respondent : Ms. Naushina Afrin Ali, Advocate with Shri
Topilal Barteh, Advocate
Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Radhakishan Agrawal
C A V Judgment
Per Radhakishan Agrawal, J.
1. The instant appeal is filed under Section 19(1) read with Section
28 of the Family Courts Act, 1984 (for brevity 'Act' of 1984) by the
appellant/wife (for brevity 'wife') against the judgment and decree
dated 22.06.2017 passed by the Family Court, Korba (CG) in Civil Suit
No. 134-A/2016 whereby the suit filed under Section (7) (1)(g) of the
Restitution of Conjugal Rights has been dismissed.
2. Appellant/wife has moved application with the averment that
she and respondent/husband (for brevity 'husband') belong to
Scheduled Tribe and their marriage was solemnized in the year 2012
as per their social rituals and customs and from their wedlock they
were blessed with a girl child. It is stated that during pregnancy the
appellant/wife was suffering from deficiency of blood and the husband
did not take care of her therefore she left to her parents house at
BALCO Nagar where she got treated by her father. It is stated that
she gave birth to a girl child and after few days, her husband and in-
laws took them to their maternal house. However, after 2-3 days, the
husband informed her father to take his daughter as she is physically
and mentally not fit. It is further stated that the husband kept the infant
girl child away from the appellant/wife and did not allow her to feed.
Appellant/wife has stated that she was ill-treated by her husband and
in-laws and looking to the condition of his daughter, she was taken by
her father to Balco Nagar and was given treatment for six months. It is
stated that the total expenses of Rs. 8-10 lacs was spent by her
father. Appellant has stated that after the birth of her child, she was
kept away by the husband and therefore a social meeting was
convened where the respondent/husband denied to keep the
appellant/wife with him and has also refused to give the child.
Thereafter on 29.06.2016, another meeting was convened where the
parties amicably relegated and agreement was entered into between
the parties and the husband paid Rs. 5,00,000/- towards the expenses
for her treatment. On 14.03.2016, father of appellant/wife has written
a letter to the head of the society for granting her maintenance of Rs.
5,000/- per month. She has further stated that the husband has
deserted her and has kept her away from discharging her matrimonial
obligations and therefore she has filed application for Restitution of
Conjugal Rights.
3. The husband has filed reply wherein it has been pleaded that
the application is not applicable as there is no provision. It has been
pleaded that the wife and husband belong Scheduled Tribe and as
per the agreement dated 28.02.2016, by mutual consent between the
parties, the husband has agreed to pay Rs. 5,00,000/- as
maintenance vide Ex.D-1. It has been stated by the
respondent/husband that the wife herself has stated that their
marriage is governed by the customary practices of the tribes and
that the application under Section 7(1)(g) for restitution of conjugal
rights is a promissory estoppel and is against the law, therfeore the
same may be rejected. Husband has further stated that in para 7 of
the agreement, the wife has stated that she has no objection if the
daughter is under the protection of her father. Respondent/husband
has further stated that the marital relations have completely dead and
in the tribal society (Kanwar), as per the agreement entered into
between the parties before the society at village Dhanras in the house
of the appellant/wife, with the consent of the wife, the marriage has
been dissolved and when the marital relation is not in existence, then
prima facie the application for restitution of conjugal rights is liable to
be rejected.
4. Counsel for the appellant/wife submits that the Family Court
has committed illegality by not appreciating the evidence and
documents on record and relied on the evidence without pleadings. It
is submitted that the Family Court has wrongly held that the applicant
is living separately from her husband without reasonable cause and it
has erred in relying upon the agreement deed Ex.D-1 which according
to the appellant/wife, the Family Court has dismissed the suit for
restitution of conjugal rights without considering the grounds raised by
her and without appreciating the evidence adduced by her in support
of her averment.
5. Per contra, counsel for the respondent/husband submits that
trial court has properly appreciated the evidence on record and rightly
dismissed the case of the appellant/wife. It is submitted by the
respondent/husband that as per the agreement dated 28.02.2016, by
mutual consent between the parties vide Ex.D-1 the marriage has
been dissolved.
6. Heard counsel for the parties and perused the material available
on record.
7. Appellant/wife (AW-1) in her written statement has stated that
the parties belong to Scheduled Caste (Kanwar) and their marriage
was solemnized in the year 2012 as per social rites and rituals at
vilage Dhanras, Korba. She has stated that she resided at her
matrimonial house for about one year and she gave to a girl child on
25.05.2013. She has stated that as her health was deteriorating when
she was pregnant, her husband informed his father to take her for
treatment and then she was given treatment by her father at Balco
Nagar, Korba where she gave birth to a girl child. Thereafter the
respondent/husband took her and the baby with him to the
matrimonial house where she was not allowed to feed her baby and
kept away from her. She has stated that the husband informed the
father of the appellant/wife to take her for proper medication. She has
stated that she was not given her child and when after 6-7 months of
treatment at Blaco Nagar, which cost upto 8-10 lacs, her father asked
the in-laws to take her they refused to take her and on 15.11.2015, in
a society meeting the appellant/husband refused to give the child to
her and in the second meeting on 29.02.2016, agreement deed was
signed by which Rs. 5,00,000/- was given for the treatment given by
her father. She has stated that she was threatened by the husband
and family members for signing the agreement.
8. In her cross-examination she has stated that the
respondent/husband has paid for the expenses of her treatment and
after delivery of child, he took them to her matrimonial house. She has
stated that she went for her treatment with her father along with her
child. She has stated that the in-laws and her husband refused to give
her child and that she is ready and willing to live with husband and
discharge her matrimonial obligations. She has also stated that the
marriage has been dissolved as per their society and it was in writing
as well.
9. Ramayan Singh (AW-2) has stated that a social meeting was
convened wherein his daughter was willing to live with her husband
and daughter but the family members of respondent/husband gave
Rs. 5,00,000/- and agreement has been entered into which was
signed by the wife and her father.
10. Itwar Singh (AW-3) father of the appellant/wife has stated that
marriage of his daughter with the respondent was solemnized in the
year 2012 as per social rites and rituals at vilage Dhanras, Korba. He
has stated that when his daughter became pregnant, she was
suffering from deficiency of blood and therefore the
respondent/husband informed him to get her treatment and thereafter
she gave birth to a girl child. He has stated that the respondent then
took his daughter and her child where she was kept away from her
child and not allowed to feed her baby. He has stated that they
informed him to take his daughter to get her properly treated.
However, after giving treatment for 6-7 months, he informed the
respondent/husband to take her but on 15.11.2015, they have called
for a social meeting wherein an agreement was entered into and the
marriage was dissolved. Jirjodhan Singh (AW-4) has also supported
the statement of AW-2 & AW-3.
11. Respondent/husband (NAW-1) has stated that their marriage
was solemnized in the year 2012 as per social rites and rituals at
village Dhanras, Korba. He has stated that after the birth of child, she
was not able to look after her and she frequently used to visit her
parents house. He has stated that before the members of the society,
the wife was sent to Balco Nagar Korba for her treatment but there
was not change in her behaviour and the members have stated that if
he is not willing to live with her then he can pay the expenses for her
living. In the said meeting, it was agreed that amount of Rs. 5,00,00/-
has to be paid and agreement was entered into vide Ex.D-1.
Shivnarayan Singh (NAW-2) has stated that the parties belong to
Kanwar tribe. He has stated that the appellant was keeping ill health
and was unable to fulfill the marital obligations and therefore the
respondent/husband denied to live with her and as per agreement
deed, Rs. 5,00,000/- have been paid and the marriage was dissolved
at the social level. He has also stated that in the tribal community
divorce is valid at social level. Nohar Lal (NAW-3) father of the
respondent/husband and Manharan Singh Kanwar (NAW-4) have also
given similar statement to that of Shivnarayan Singh.
12. From the above evidence, it is clear that both the parties belong
to 'Kanwar' tribe and the marriage between the parties has been
dissolved in a social meeting vide agreement deed Ex.D-1.
13. There is no precedent which bars members of the Scheduled
Tribe to approach the Family Court by filing any suit or proceedings
relating to matters mentioned in Clauses-(a) to (g) of the Explanation
to Section 7 of the Family Courts Act. If at all, such matter is filed,
seeking adjudication under the law, applicable to them i.e. Customary
Laws, they cannot resort to the provisions of Hindu Marriage Act,
1955, if the parties are not governed by the Hindu Marriage Act, 1955.
Reference is made to the decision of this Court in the case of
Rajendra Kumar Singh Munda Versus Smt. Mamta Devi in F.A.
No. 186 of 2008, vide judgment dated 20th August, 2015. This Court
affirmed the order of the Family Court, dismissing the suit for divorce,
filed by a member of Schedule Tribe, under Section 13 of the Hindu
Marriage Act, 1955, on the ground that the Hindu Marriage Act does
not apply. Customary Laws are applicable in the matters of
succession, where parties are governed by Customary Laws. [ See
Bharat Bhushan Versus Tej Ram & Ors., reported in (2016) 15
SCC 655; T. Ravi & Anr. Versus B. Chinna Narasimha & Ors.,
reported in (2017) 7 SCC 342 as also in the case of Narayanan
Rajendran Versus Lekshmi Sarojini, reported in (2009) 5 SCC
264.]
14. As per agreement deed Ex.D-1, dated 29.02.2016, a settlement
has been entered into by which the appellant has agreed that "she will
not reside with the respondent/husband and she can only meet the
child time to time and has set free the respondent/husband for second
marriage. She will also not interfere in his personal life. Secondly, she
has obtained cash of Rs. 5,00,000/- from the husband as permanent
settlement and also agreed that she will not claim for any kind of legal
rights to marriage. Lastly, the child will be under the protection of
respondent/husband and she has no objection for the same.
15. The word "Jurisdiction" is defined under Section 7 of the Act of
1984. Family Court having a jurisdiction to decide a suit or proceeding
between the parties for dissolution of marriage and other related
matters, above provision is applicable to all religions and communities
and the Court is conferred with a power to adjudicate the matters
under Section 7 of the Act of 1984. There was no material to support
such finding and it has been arrived at without there being any
pleading and necessary specific issue in this regard.
16. It is well settled proposition of law that when custom becomes
part of the tribal community as a law, it will guide their attitude and
practice in their social and economic life. Custom is considered as the
guiding principle amongst them, which will acquire the status of law,
the Family Court has not considered the application of custom
amongst the Tribes. It is also a well settled principle that for
assumption of jurisdiction by a Court or a Tribunal, existence of
jurisdictional fact is a condition precedent. But once such jurisdictional
fact is found to exist, the Court or Tribunal has power to decide
adjudicatory facts or facts in issue, based upon the pleadings of the
parties. Whether the parties are able to plead and prove the custom
governing the matters of divorce between them for seeking relief was
an issue to be decided on merits after considering the pleadings and
evidence on record. In such a case, where parties claimed to be
governed by Customary Law, a Court or a Tribunal ought to have
framed an issue to that effect. Once it is found that the parties are
governed by the Customary Law, the parties are required to plead and
prove the customs, by which, they are governed in matters concerning
marriage and divorce etc.
17. While dealing with the course to be followed by the Family
Court in a matter of divorce involving Customary Law, Hon'ble
Supreme Court in case of Yamanaji H. Jadhav v. Nirmala reported
in (2002) 2 SCC 637, observed as follows :
"7. ........ As per the Hindu Law administered by courts
in India divorce was not recognized as a means to put
an end to marriage, which was always considered to
be a sacrament, with only exception where it is
recognized by custom. Public policy, good morals and
the interests of society were considered to require and
ensure that, if at all, severance should be allowed only
in the manner and for the reason or cause specified in
law. Thus such a custom being an exception to the
general law of divorce ought to have been specially
pleaded and established by the party propounding
such custom since said custom of divorce is contrary
to the law of the land and which, if not proved, will be a
practice opposed to public policy. Therefore, there was
an obligation on the trial court to have framed an issue
whether there was proper pleadings by the party
contending the existence of a customary divorce in the
community to which the parties belonged and whether
such customary divorce and compliance with the
manner or formalities attendant thereto was in fact
established in the case on hand to the satisfaction of
the Court........"
18. Further, Hon'ble Supreme Court in case of Subramani and
Others v. M. Chandralekha reported in (2005) 9 SCC 407 observed
as follows :
"10. It is well established by long chain of authorities
that prevalence of customary divorce in the
community to which parties belong, contrary to
general law of divorce must be specifically pleaded8
and established by the person propounding such
custom......"
19. It was thus necessary for the Family Court to call upon the
party, seeking divorce/restitution of conjugal rights etc. under the
Customary Law to plead and establish such custom by leading
evidence. In any event, learned Family Court ought not have
dismissed the suit since the parties belonged to Tribal Community and
are governed by Customary Law, which is not a codified substantive
law, like the Hindu Marriage Act, 1955, Special Marriage Act, 1954
and Divorce Act, 1869.
20. In case of Dr. Surajmani Stella Kujur v. Durga Charan
Hansdah and Another reported in (2001) 3 SCC 13, Hon'ble
Supreme Court has held as follows :
"10. For custom to have the colour of a rule or law, it is
necessary for the party claiming it to plead and
thereafter prove that such custom is ancient, certain
and reasonable. Custom being in derogation of the
general rule is required to be construed strictly. The
party relying upon a custom is obliged to establish it by
clear and unambiguous evidence."
21. In view of the above authoritative pronouncements of law on the
issue by the Hon'ble Supreme Court as well as in view of the facts
and circumstances of the instant case, the matter needs to be
remanded back to the Family Court for reconsideration.
22. In the result, the appeal is allowed. Impugned judgment and
decree dated 22.06.2017 passed by the Family Court, Korba, C.G. is
set aside. The matter is remanded to the Family Court, Korba to
reconsider the case in accordance with law. The Family Court is also
directed to frame a specific issue in regard to customary law for
divorce/restitution of conjugal rights etc. In this regard, we permit the
parties to amend their pleadings, if they so desire and also to lead
evidence to the limited extent of proving the existence of a provision
for customary law. The Family Court shall make endeavour to
conclude the proceedings expeditiously. The parties are directed to
appear before the Family Court concerned on 30.01.2023. Record of
the Family Court be sent back forthwith.
Sd/- Sd/-
(Goutam Bhaduri) (Radhakishan Agrawal)
Judge Judge
s/-
