In the utter absence of any evidence, let alone conclusive, that the divorce decree executed purportedly between respondent no.11 and her deceased husband was endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted. Thus, the spouses had to revert back to Section 13 of the Act, which sanctions dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law.
25. Such facts, coupled with the fact that pension was granted earlier in
favour of respondent no.11 upon a valid sanction being issued by the
respondent-authorities, it would be unjust to deprive respondent
no.11 from such pension at the behest of the petitioner, merely on the
basis of the petitioner’s assertion on oath in this writ petition that a
deed of divorce, supported by valid and recognized customs, was
executed between respondent no.11 and her deceased husband.
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
WPA No. 2346 of 2018
Smt. Krishna Veni Vs. The Union of India and others
Judgment on : 18.02.2021
Coram: The Hon’ble Justice Sabyasachi Bhattacharyya
1. The present challenge has been preferred by Smt. Krishna Veni, the
second wife of Sardar Natha Singh (since deceased), who was a
freedom fighter getting pension from the Central Government under
the Swatantra Sainik Samman Pension Scheme, 1980 till his demise
on August 25, 1984. The petitioner, relying on a deed of declaration of
divorce, purportedly executed by respondent no.11, the first wife and
Sardar Natha Singh, the husband of the petitioner, claimed widow
pension under the said Scheme, which was refused by a
communication dated March 6, 2012 issued by the Assistant
Secretary to the Government of West Bengal on the ground that such
deed of divorce dated December 19, 1956 was not acceptable under
the Hindu Marriage Act, 1955, in the absence of a decree for divorce
obtained from a competent court of law.
2. Learned counsel submits that the petitioner and her deceased
husband were governed by customs of Jat Sikhs, which permit such a
divorce. As such, the petitioner claims that Section 29(2) of the Hindu
Marriage Act, 1955 is attracted. Sub-section (2) of Section 29 of the
Act provides that nothing contained in the Act shall be deemed to
affect any right recognized by custom or conferred by any special
enactment to obtain the dissolution of a Hindu marriage, whether
solemnized before or after the commencement of the Act.
3. It is further argued that respondent no.11 had initiated litigation
against her husband, late Sardar Natha Singh, during the latter’s
lifetime, for which payment of pension to respondent no.11 under the
said Scheme was stopped by the authorities. In support of his
contentions, learned counsel cites the judgment of Gurdit Singh vs.
Mst. Angrez Kaur and others, reported at AIR 1968 SC 142, wherein
the Supreme Court approved of the proposition that evidence could be
accepted on prevalence of custom in the Jullundur District, to lend
validity to such a divorce without following the provisions of divorce as
stipulated in the Hindu Marriage Act, 1955.
4. Learned counsel next relies on Balwinder Singh vs. Smt. Gurpal Kaur,
reported at AIR 1985 Delhi 14, for the proposition that a divorce deed
executed between spouses and duly attested by a notary public, if
sanctioned by the customs of the parties, would render the marriage
dissolved.
5. Learned counsel for the petitioner next cites Doddi Appa Rao vs.
General Manager, Telecom, Rajahmundry, reported at (2000) 1 CCC
146, wherein the Andhra Pradesh High Court held, on the basis of a
decree passed by a civil court, that the marriage between the parties
was dissolved as per caste custom and usage.
6. Counsel next relies on another judgment of the Andhra Pradesh High
Court, reported at 1992 (3) ALT 733 [G. Thimma Reddy and others vs.
The Special Tahsildar, Land], wherein the court held, on the basis of a
registered deed and exclusive possession of the wife over the lands
given to her under settlement, that a valid divorce had taken place as
per the customs of the parties. The evidence of witnesses was also
considered therein.
7. As such, it is argued by the petitioner that the respondent-authorities
unlawfully withheld widow pension to the petitioner under the 1980
Scheme.
8. Learned counsel appearing for respondent nos.1, 2 and 4 submits
that the petitioner’s claim for widow pension was rightly rejected,
since the validity of the divorce by the deed of declaration, produced
by the petitioner, was not established by the petitioner. Learned
counsel relies on Subramani and others vs. M. Chandralekha, reported
at (2005) 9 SCC 407, for the proposition that a custom, to be upheld,
is to be pleaded and proved by the party relying on the same.
9. However, learned counsel advances a suggestion that the widow
pension can be distributed equally between the first and second wives
of the deceased freedom fighter if the court so directs.
10. For Section 29(2) of the 1955 Act to be invoked, it has to be
established by the party relying on a custom that the right of the party
was recognized by custom, to obtain the dissolution of a Hindu
marriage. In the present case, the petitioner did not approach the civil
court for declaration regarding validity of the divorce deed.
11. There was nothing to prevent the petitioner from approaching the
competent civil court for such declaration. The burden and initial
onus lies on the petitioner to prove the existence of a custom having
the force of law, to be proved by evidence - oral or documentary - in
order to attract the benefit of Section 29(2) of the Hindu Marriage Act.
12. Section 2(1)(b) of the Hindu Marriage Act, 1955 stipulates that the Act
applies to Sikhs as well. Thus, the provisions of the Act, including
Section 13 thereof (pertaining to divorce), applies to Sikhs in general.
Admittedly, the petitioner, respondent no.11 and their deceased
husband are/were Sikhs by religion. Hence, the marriage between the
respondent no.11 and her deceased husband could only be dissolved
by a decree of divorce passed by a competent court on any of the
grounds as mentioned in Section 13 of the Act, unless the existence of
any contrary custom was proved by evidence.
13. In order to justify an exception to Section 13 within the purview of
Section 29(2), the petitioner had to approach a civil court and
establish by evidence that the dissolution of the marriage between the
respondent no.11 and her deceased husband was recognized by
custom. All Sikhs do not come within the purview of such exception,
unless any custom to the contrary is proved by cogent evidence. The
respondent-authorities do not have the jurisdiction in law to decide
the matrimonial status of the private parties and/or the validity of the
deed of declaration, which could only be done by adduction of
adequate evidence before a civil court. Unfortunately, neither does the
writ court, with its constraints in taking evidence on disputed
questions of fact, has the scope to decide such issue.
14. In Gurdit Singh (supra), the Supreme Court was dealing with an issue
which arose in a civil suit. The trial court had decreed the marriagein-
question to be valid. The appellate court reversed such decree on
the premise that the marriage between the parties was invalid, being
not justified by any custom. Upon the issue being remitted to the trial
court, after giving the parties an opportunity to lead further evidence,
the trial court answered the issue regarding the existence of such
custom in the negative, which was endorsed by the appellate court. In
second appeal, the High Court held that a custom was proved under
which Mst. Angrez Kaur, respondent could validly marry Sunder
Singh, even though her first husband was alive. While considering
such matter, the Supreme Court observed that the witnesses
examined on behalf of the appellant had admitted the existence of a
custom permitting the Hindu husband to divorce his wife. Upon such
premise, the Supreme Court proceeded to endorse such view.
15. In Balwinder Singh (supra), the matter in issue before the Supreme
Court also arose from a civil suit, wherein the trial court declared the
marriage solemnized between the parties in accordance with Hindu
rites and ceremony as null and void and granted a decree of nullity of
marriage. The appellate court had found that the evidence adduced by
the appellant was not sufficient and reliable enough to establish the
existence of the custom amongst the Sikhs Jats of District Amritsar to
which District the appellant and its parents belonged, under which
the marriage between the appellant and his previous wife could be
dissolved otherwise than through court as per the provisions of the
Hindu Marriage Act.
16. While dealing with such question, the Delhi High Court considered the
evidence adduced by the parties and sanctioned the dissolution of
marriage by execution of a deed of divorce.
17. The Andhra Pradesh High Court, in Doddi Appa Rao (supra), was also
considering a case where a civil court had decreed a suit for
declaration that the marriage of the plaintiff and the defendant therein
was dissolved as per caste custom and usage. In such context, it was
held by the Division Bench of the Andhra Pradesh High Court that the
Central Administrative Tribunal ought to have honoured such decree.
18. In G. Thimma Reddy (supra), the learned Single Judge considered
several factors apart from the registered deed of divorce, including
that the factum of divorce was disregarded on a flimsy ground that the
stamp affixed to the document of divorce was in the name of a wrong
person. The court also took into consideration the fact that the
spouses were living separately and in possession of lands settled in
their favour, for which no need for divorce was there. Oral evidence
was also adduced by several witnesses, one of them a caste elder who
had also attested the document. P.Ws 1 to 3 therein spoke of existing
custom in the caste of the spouses sanctioning such divorce.
Moreover, the adjudication in the said report was in the context of a
land dispute between the parties.
19. As such, in each of the judgments cited by the petitioner, a valid
decree, sectioning the respective documents of divorce, had been
passed by competent civil courts. In the present case, however, no
such decree was obtained by the petitioner.
20. That apart, it is pleaded by the writ petitioner herself that the
Government of India, Ministry of Home Affairs, New Delhi, sanctioned
payment of political pension to the first wife, that is, respondent no.11
with effect from August 26, 1984 by a letter dated February 14, 1986
and Pension Payment Order was issued accordingly in favour of
respondent no.11. For whatever reason such pension might have been
withheld subsequently, the initial grant of pension to respondent no.
11 is an endorsement of the fact that the first wife was found eligible
for such pension by the respondent authorities and she had already
started getting pension.
21. It is relevant to mention here that a suit-in-question was filed by
respondent no.11, inter alia, for declaration that she was the only
married wife and the only widow of Sardar Natha Singh (since
deceased) and was entitled to widow pension and that the present
petitioner was not the wife and widow of Sardar Natha Singh. Learned
counsel for the petitioner argues that the said suit was dismissed for
default and the subsequent restoration application filed by respondent
no.11 met with the same fate. As such, it is contended that
respondent no.11 is debarred from raising the contentions on which
declaration was sought by her in the dismissed suit.
22. Order IX Rule 9 of the Code of Civil Procedure debars a plaintiff from
bringing a fresh suit in respect of the same cause of action in the
event of dismissal of a suit for default. However, it is well-settled that
such a dismissal, ipso facto, would not take away the right of the
plaintiff which was under consideration in the suit. Such right, if
available otherwise to the plaintiff in accordance with law, subsists
despite the dismissal of the suit for default. The plaintiff in such a suit
may very well raise a defence on the basis of such right in a different
suit or legal action and/or may agitate the same right in a suit filed by
her on a subsequent cause of action.
23. Thus, in the present case, the dismissal of the suit of respondent
no.11 for default does not preclude the said respondent from staking
her claim before any authority other than a civil court, that too in a
suit filed by her on the self-same cause of action, and/or setting up a
defence in the writ petition on the basis of such claim.
24. In the utter absence of any evidence, let alone conclusive, that the
divorce decree executed purportedly between respondent no.11 and
her deceased husband was endorsed by any valid custom, the
exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act
would not be attracted. Thus, the spouses had to revert back to
Section 13 of the Act, which sanctions dissolution of marriage only by
a decree of divorce, for the dissolution of marriage to be valid in the
eye of law.
25. Such facts, coupled with the fact that pension was granted earlier in
favour of respondent no.11 upon a valid sanction being issued by the
respondent-authorities, it would be unjust to deprive respondent
no.11 from such pension at the behest of the petitioner, merely on the
basis of the petitioner’s assertion on oath in this writ petition that a
deed of divorce, supported by valid and recognized customs, was
executed between respondent no.11 and her deceased husband.
26. I must note that, in view of the long-pending litigation between the
private parties, it would be lucrative to direct pension to be paid
equally between the petitioner and respondent no.11. However, such a
course of action would be grossly illegal. Although my empathy goes
fully with the petitioner, who is an unemployed lady of about 63 years
as per her own affidavit, this court does not have the power to enact
law but is bound by the provisions of law as the Parliament, in its
wisdom, chose to promulgate. Where a conflict arises between
individual conscience of the concerned Judge and judicial conscience,
supported by law of the land, the former has to give way to the latter.
27. In such view of the matter, the writ petition fails. Accordingly, WPA
No.2346 of 2018 is dismissed on contest without any order as to
costs.
28. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
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