Delhi High Court
Prahlad Singh vs Seema @ Vidhya on 19 March, 2021
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 19.03.2021
+ MAT.APP. (F.C.) 45/2021 & CM APPLs. 10784-85/2021
SH. PRAHLAD SINGH ..... Appellant
Through: Mr. Paramjeet Singh, Adv.
versus
SMT. SEEMA @ VIDHYA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
1. The present appeal assails the judgment and order dated 20.05.2020
passed by the learned Additional Principal Judge, Family Court, Tis Hazari in
HMA No. 261/2017 which had been preferred by the appellant seeking a
decree of nullity declaring his marriage with the respondent as being null and
void.
2. The marriage of the appellant Mr. Prahlad Singh with the respondent,
Ms. Seema was solemnized, as per Hindu rites and customs, on 05.05.2009 in
Delhi. They have a daughter from this wedlock.
3. In 2017, the appellant/petitioner instituted HMA No 261/2017 before the
learned Family Court on the ground that he had been duped into the marriage
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by the respondent. He claimed that the respondent had concealed her previous
marriage to one Mr. Praveen Kumar, with whom her relationship had
deteriorated to such an extent that both of them had registered FIRs against the
other. The appellant further claimed that the respondent, before getting married
to him, had not obtained a divorce from the said Mr. Praveen Kumar, which
implied that their marriage was void ab initio.
4. Before the learned Family Court, the respondent contended that (i) she
had never hidden her previous marriage from the respondent and that he knew
of the same. She claimed that he had helped her obtain a customary divorce
from Mr. Praveen Kumar; and that (ii) she had not committed any act of
domestic violence against the family of the appellant and rather, it was her who
had been subjected to the same. She even underwent a medical examination at
the Lal Bahadur Shastri Hospital after one such violent incident, which she
could prove by way of the MLC issued, and was eventually compelled to file a
complaint against the appellant's father under Section 354 IPC after he had
tried to outrage her modesty.
5. In the heels of this written statement, the appellant filed a replication and
then an application seeking a judgment on admissions, under Order XII Rule 6
of the Civil Procedure Code. This application was dismissed by the learned
Family Court and, at the appellate stage, by the learned Single Judge as also the
learned Division Bench of this Court. However, once pleadings were complete,
on 02 04.2019, the learned Family Court framed the following issues for the
purpose of a final adjudication:
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(1). Whether the respondent was having a spouse living at the
time of his marriage with the petitioner as alleged in the petition?
OPP
(2). Whether this marriage between the petitioner and the
respondent is liable to be declared null and void by a decree of
nullity, as prayed in the petition? OPP
(3). Whether the petitioner is entitled for the relief as prayed in
the petition? OPP
(4). Relief
6. Ultimately, the impugned order came to be passed, rejecting the
appellant's claim that as on the date of the marriage between the parties herein,
the marriage between the respondent and Mr. Pravin Kumar was still
subsisting. The learned Family Court delved into the custom of dissolving
marriages without moving a Court of law and, instead, approaching the
concerned panchayat and held that the same was a recognised and widely
prevalent custom amongst the Jaats of Jalandhar and other neighbouring
districts. The learned Family Court observed that since both the appellant and
the respondent belonged to the Jaat community in Uttar Pradesh which
practiced the custom as well, there was no question of penalising only the
respondent for failing to approach the Court for a formal decree of divorce,
when the appellant himself had availed of the same custom for the purpose of
dissolving his marriage with his previous wife. The relevant extracts of the
impugned judgment which contain the reasoning adopted by the learned Family
Court read as under:
"27. I am of the opinion that in the facts of this case, the
judgements relied on behalf of the petitioner would not be
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attracted. In this case, it is not in dispute that there is such a
custom prevalent in the community to which the parties belong.
The petitioner himself, admittedly before his marriage to the
respondent, was married to one Ms. Mamta. The petitioner in his
cross examination dated 04.02.2020 admitted that he had taken
divorce from Ms. Mamta. The petitioner admitted that the said
divorce between him and Ms. Mamta was not granted by any court
and it was a Panchayati divorce. Thus there is sufficient material
on record of this case to show that in the community to which the
parties belong, Panchayati divorce is a permissible mode of
divorce.
xxx
29. Further, it is not in dispute that the parties had undertaken
all marriage ceremonies in accordance with Hindu rites and
customs. Before the disputes precipitated between them, the
parties lived together as husband and wife and were treated as
such. They had a girl child from this wedlock. Parents of the
petitioner were also treating the respondent as wife of the
petitioner as would become clear from a copy of the document on
the file whereby the respondent with the daughter was allowed to
live on the II Floor of the premises belonging to the mother of the
petitioner and a copy of the plaint of civil suit filed by the mother
of the petitioner for eviction of the respondent from his premises.
In these documents the respondent has been described as the wife
of the petitioner. In such circumstances, a strong presumption
would arise that the respondent is the legally wedded wife of the
petitioner and it was for the petitioner to plead and lead evidence
to show the contrary.
xxx
35. It is the case of the petitioner that in this case he came to
know about the subsistence of marriage between the respondent
and Praveen Kumar only after filing the petition for divorce in the
year 2013 and thus he withdrew that petition and filed the preent
petition. Respondent has maintained that the petitioner and his
family were aware of all facts and they were shown all relevant
documents. She has also maintained that the petitioner and his
father were actively involved in preparation of divorce papers of
the respondent with Praveen Kumar and they had accompanied
her at the time she went for notarization of that deed. She has also
alleged that the Advocate who had prepared her own documents
for divorce was the same person who had prepared the documents
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of divorce for the petitioner. The petitioner did not file the
documents relating to his own divorce with Ms. Mamta by
customary mode in this court even though it was specifically
pointed out in the written statement filed by the respondent and
questions were asked to the petitioner in his cross-examination.
The respondent had also filed an application seeking production of
documents relating to divorce of the petitioner. Fact that both
parties had taken divorce in similar manner and may be through
the same Advocate would show that both parties were aware of all
facts and believed that their marriages with their earlier spouses
stood dissolved. Section 23(1)(a) of the Hindu Marriage Act
stipulates that in any proceedings under this Act, the court needs
to be satisfied that the petitioner is not in any way taking
advantage of his or her own wrong or disability for the purpose of
relief. The petitioner has raised the plea of nullity of marriage only
after matrimonial disputes developed between the parties and
litigation started. Material on record to my mind, shows that the
petitioner had full knowledge of all relevant facts relating to
marriage of the respondent with the respondent. In the event, the
petitioner desires to do so; he would be required to file a petition
for divorce in accordance with law. Fact that the petitioner had
earlier filed a petition for divorce which he withdrew and then
filed the present petition would not be sufficient to conclude that
the petitioner was not aware about the alleged subsistence of
marriage of respondent with Praveen Kumar."
7. Aggrieved by the aforesaid findings, the present appeal has been filed.
Assailing the impugned order, learned counsel for the appellant, at the outset,
submits that at the time of his marriage to the respondent, her marriage to
Praveen Kumar was still subsisting, thereby rendering her marriage to the
appellant a nullity. He further avers that the respondent had neither proved that
she belongs to the Jaat community nor led any evidence to prove the custom of
obtaining divorces without approaching the Court He, therefore, contends that
the marriage of the respondent could be dissolved by the grant of decree of
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divorce under the Hindu Marriage Act, and, therefore, the respondent could not
claim that her marriage with Mr. Pravin Kumar stood dissolved through the
deed of dissolution dated 06.01.2009. He, thus, contends that the respondent's
previous marriage is still subsisting and the marriage between the parties herein
was void ab initio, which was not appreciated by the learned Family Court.
8. We have heard learned counsel for the appellant and perused the record,
and are unable to find any infirmity in the decision of the learned Family Court.
9. While the appellant has contended that he did not know of the
respondent's earlier marriage, this was denied by the respondent who claimed
that rather- it was the appellant who had been married earlier to one Ms.
Mamta, which position came to be established at the time of cross-examination
before the learned Family Court. The respondent contended that her former
marriage with Mr. Praveen Kumar was, like the earlier marriage of the
appellant with Ms. Mamta, dissolved through the customary marriage
dissolution process practiced in the Jaat community to which they belonged.
She even contended that the document of this customary divorce, in her case,
was prepared by the same Advocate who had done it previously for the
appellant and Ms. Mamta. It also remains a matter of record that the appellant
had admitted before the learned Family Court that his family and he were
closely involved in the mediation which the respondent had been ordered to
have with her former husband at the Allahabad High Court Mediation Centre.
10. As it turns out, this was a case where both the parties have admitted to
having other marriages which predated their marriage to each other. They both
stated to have dissolved their respective marriages through deeds of dissolution
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executed in the presence of the Panchayat, rather than pursuing a formal decree
of divorce through the Family Court. They claimed that this was customary for
Jaats of Jalandhar and neighbouring districts. It appears that this type of
customary divorce is not foreign to the Indian courts and has already been
recognized and dealt with in numerous decisions of the Supreme Court and this
Court; it is also recognized and accepted under Section 29(2) of the Hindu
Marriage Act which permits marriages to be dissolved in accordance with the
custom governing the parties. This position was also considered by the learned
Family Court which had explored the prevalent position of law by referring to
the decisions of the Delhi High Court in Balwinder Singh Vs. Gurpal KaurAIR
1985 Delhi 14 and of the Supreme Court in Gurdit Singh Vs. Angrez KaurAIR
1968 SC 142; the relevant extracts from the impugned judgment in this regard,
read as under:
"23. Dissolution of marriage by divorce was unknown to Hindu
law. However, in certain communities divorce was recognized by
custom and the courts upheld such custom when it was not
opposed to public policy. It was in this background that the social
customs and usages which have on account of continuous and
uniform observance over the years acquired force of law amongst
certain communities have been expressly saved by Section 29(2) of
the Hindu Marriage Act. A Hindu marriage may now be dissolved
either under section 13 of the Act or under any special enactment
or in accordance with any custom applicable to the parties. [See
Balwinder Singh vs. Gurpal Kaur, (AIR 1985 Delhi 14].
24. The petitioner admittedly belongs to Jaat community. The
petitioner in his cross-examination dated 04.02.2020 said that he
did not know if the respondent also belongs to Jaat community and
he was not able to disclose the community to which the respondent
belongs. The respondent in her evidence has stated that she
belongs to Jaat community. The respondent in her cross-
examination was suggested that she does not belong to Jaat
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community. This suggestion was denied by her. The respondent
was not suggested as to which other community she belongs. The
deed of dissolution of marriage dated 06.01.2009 (Ex.RW1/D1)
records that the respondent belongs to Jaat community. I see no
reason to disbelieve the respondent that she belongs to Jaat
community.
25. Hon'ble Suprme Court in the case of Gurdit Singh vs. Angrez
Kaur, [AIR 1968 SC 142] had recognized that among the Hindu
Jaats of Jalandhar, there is a custom by which the husband can
dissolve his marriage with his wife without moving to a court of
law. Subsequently in Balwinder Singh vs. Gurpal Kaur, AIR 1985
Delhi 14, Hon'ble Delhi High Court held that such custom was
prevalent not only among the Jaats of Jalandhar but among Jaats
of various other neighboring districts. In this case the respondent
has stated that she and the petitioner both belong to Jaat
community residing at Uttar Pradesh."
11. While the appellant has contended that the respondent is not entitled to
obtain a divorce under such customary provisions, he does not deny that the
custom of obtaining divorce in Jaat community has been duly recognized by the
Supreme Court viz. the Jaat community in Jalandhar, and by this Court as
regards the Jaats of Jalanadhar and various neighbouring districts. The
appellant has also been unable to rebut the respondent's plea that she, like the
appellant, also belonged to the Jaat community which practiced this custom, by
adducing any material evidence before the learned Family Court, or before us
today. Moreover, the fact that the respondent's former husband, Mr. Praveen
Kumar, has neither disputed their divorce nor claimed restitution of conjugal
rights, was taken into consideration as well by the learned Family Court.
12. Another factor that weighed with the learned Family Court was that
though the marriage between the parties was solemnized in 2009 and they were
blessed with a daughter, the appellant had preferred the petition seeking a
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divorce only in 2015, after the passage of almost six years from the date of their
marriage. We are inclined to agree with the learned Family Court that this
delay, in itself, exposed the gaps in the appellant's plea that he was neither
aware of the respondent's earlier marriage, nor of her customary divorce from
her former husband.
13. In these circumstances, we find absolutely no infirmity in the impugned
order.
14. The appeal, along with the pending applications is dismissed with no
order as to costs.
(REKHA PALLI)
JUDGE
(VIPIN SANGHI)
JUDGE
MARCH 19, 2021
acm
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