Court: HIMACHAL PRADESH HIGH COURT
Bench: JUSTICE Deepak Gupta
KEWAL KUMAR Vs. PAWNA DEVI On 30 December 2010
Dissolution of marriage by mutual consent according to customary law — Under Section 29(2) of Hindu Marriage Act, divorce by custom is saved — Under ancient Hindu Law there was no right of divorce but dissolution of marriage was recognized under various customary laws — Trial Court held that custom does exist and is valid and saved by Section 29(2) of Act — It was held that there was no marriage subsisting between parties.
By means of this petition, the petitioner has challenged the order dated 26.8.2003 passed by the learned Senior Sub Judge, Kangra at Dharamshala whereby he has granted interim maintenance @ Rs. 500 per month to the petitioner (here-in-after referred to as the respondent) w.e.f. April, 1999 and has also directed the petitioner to pay litigation expenses of Rs. 1,000 to his wife, the respondent.
2. The main ground of challenge is that the marriage between the parties stood dissolved by mutual consent according to customary law and therefore, the Senior Sub-Judge did not have any jurisdiction to award compensation.
3. The undisputed facts are that petitioner-husband married the respondent on 4th December, 1998. According to the husband, the wife was pregnant at the time of marriage and, therefore, the parties agreed to get the marriage dissolved by customary divorce and a Fharkhati Nama in this behalf was executed on 25.2.1999. The wife filed a petition under Section 125 of the Criminal Procedure Code seeking maintenance, which was dismissed by the Judicial Magistrate 1st Class, Dharamshala, vide order dated 18.12.2000 holding that the marriage stood dissolved by mutual consent and the learned Magistrate found that the respondent was living in adultery. The learned Sessions Judge also relied upon the divorce entered into mutually between the parties. During the course of the proceedings the husband has also filed an application No. 585 of 2008 and placed on record judgment of the Civil Judge (Jr. Division) 2, Dharamshala dated 15.3.2005 whereby the suit of the wife, seeking a declaration that there is a subsisting marriage between the parties, has been dismissed. This suit was dismissed on the ground that the marriage between the parties has been dissolved by a customary divorce in terms of the Fharkhati Nama.
4. I have heard Mr. Janesh Gupta, learned Counsel for the husband and Pt. Om Prakash, learned Counsel for the respondent-wife.
5. Mr. Janesh Gupta, learned Counsel for the husband urges that in view of the fact that the marriage between the parties has been dissolved by a mutual consent and in view of the findings recorded in criminal proceedings that the wife was pregnant at the time of the marriage no maintenance should be awarded to the wife. It is further urged that since the suit of the wife has been dismissed and no appeal against the same has been filed, the marriage having dissolved the main petition filed by the wife for restoration of conjugal rights itself is not maintainable.
6. On the other hand Mr. Om Prakash, learned Counsel for the respondent contends that in view of Section 4 of the Hindu Marriage Act, 1955 the provisions of the act shall override any custom and therefore, there could be no customary divorce and, as such, the orders of the Courts holding that the marriage between the parties had been dissolved by way of customary divorce are without jurisdiction.
7. Section 4 of the Act reads as follows:
“Overriding effect of Act—Save as otherwise expressly provided in this Act—
(a) any text rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect insofar as it is inconsistent with any of the provisions contained in this Act.”
8. A bare reading of this section shows that the provisions of the Act will override in custom or usage in force prior to the promulgation of the Act. However, there is a savings section in the act itself. Section 29 of the Act contains the savings clause and Sub-section (2) of Section 29 reads as follows:
“(2). Nothing contained in this 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 this Ac.”
9. The words of Section 4 clearly show that the provisions of this section are subject to express provisions contained elsewhere in the Act. Section 29(2) expressly saves the rights recognized by custom or conferred by any special enactment to obtain dissolution of Hindu marriage. It is, therefore, obvious that divorce by custom is saved. It is well known that under ancient Hindu Law there was no right of divorce but dissolution of marriage was recognized under various customary laws. If such custom is established then the same will prevail and is saved under the provisions of Section 29(2). Reference may be made to the judgment of the Apex Court in Yamanaji H. Jadhav v. Nirmala, I (2002) DMC 321 (SC)=I (2002) SLT 657=(2002) 2 SCC 637, wherein the Apex Court held that the custom must be properly pleaded and proved.
10. As far as the present case is concerned, the wife herself had filed a civil suit in the Court of the Civil Judge (Jr. Division)-2, Dharamshala, copy of which judgment has been filed in these proceedings. In the said case, she had specifically raised a plea that her marriage is still subsisting and not being dissolved under any custom. Issues 5 and 5(A) in the said suit read as follows:
“5. Whether the marriage of plaintiff and defendant No. l has been dissolved under the custom in accordance with ‘Farkhati Nama’ dated 25.2.1999?
5(A) Whether the parties are governed by custom of Farkhati Nama, if so, what is that custom?
These issues were decided in favour of the husband and against the wife and the Court came to the conclusion that a custom does exist and the learned Trial Court also held that such custom is valid and is saved by Section 29(2) of the Act. There is no material on the record to show that this judgment has been challenged by the wife though it was delivered as far back as on 15.3.2005. By this judgment, it was held that there was no marriage subsisting between the parties. If there is no marriage subsisting between the parties the petition under Section 9 for restoration of conjugal rights itself is not maintainable and as such the order of grant of maintenance pendente lite could not also have been passed.
11. In view of the above discussion, the petition filed by the husband is allowed. The order of the learned Court below granting pendente lite maintenance to the respondent-wife is set aside. No order as to costs.
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