Saturday, 27 February 2021

Whether a party can rely on customary divorce in the absence of a declaration of validity of said divorce by the civil court?

 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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