*DIVORCE BY WAY OF CUSTOM IS ILLEGAL.

West Bengal Form No.3702.

HIGH COURT FORM NO.(J) 3.

HEADING OF JUDGEMENT OF APPEAL

DISTRICT: BURDWAN

In the Court of the Additional District Judge, Fast Track Court, 1st Court, Asansol.

Present: Sri H. Singh

Monday the 10th day of February, 2003.

Title Appeal No.2/41 pg 2002/2000

From the decree/order of Sri G.C. Karmakar

Civil Judge of (Jr. Dn.) 3rd Court and made in T. S. No.103 of 1987.

1. Mira Devi   ……………………………………... Appellant.

                                    versus

1. Chamoni Devi

2. Ratan Hela

3. Ram Hela and 3 others……………………………Respondents.

            This appeal coming on this day (or having been heard on) 4/2, 5/2, 10.2.03 in the presence of

                        Sri. S.S. Chatterjee                              Advocate for the Appellant

                        Sri, S. Chatterjee                                  Advocate for the Respondent

and having stood for consideration to this day, the Court delivered the following Judgement:-

            This is an appeal is an appeal filed against the Judgement and Decree passed by G.C. Karmakar on 31st of March, 2000 ld. Civil Judge (Junior Division), 3rd Court Asansol in T.S. No.103 of 1987. The Appellant Smt. Mira Devi challenged the impugned Judgement and Order on the following grounds inter alia other grounds that the ld. Court below erred in appreciating plaintiff’s case, misread and misconstrued Exbts. filed  by the defendant No.6 and ignored the evidence adduced by the plaintiff appellant. The appellant further alleged that the Judgement passed by the Court below is bad in law, wrong and unsatisfactory and is liable to be set aside. The Respondent Nos. 1 to 5 did not contest the Title Appeal and the Titile Appeal proceeded ex-parte against them.. The Respondent No.6 (The Indian Iron and Steel Co.) contested the appeal and supported the Judgement and Decree passed by the ld. Court below. The plaintiff Smt. Mira Devi on 5.8.97 filed a Title Suit against the 6 defendant who are respondents in this Title Appeal. The plaintiff appellant in her suit alleged that she is the legally married wife of deceased Baccha Lal who died on 4.12.95 at his residence at Damodar Rly. Colony and was working under Defendant No.6. The plaintiff in her plaint further alleged that the deceased  was first married to defendant No.1 (Smt. Chamoni Devi) and through such wed-lock 4 sons (Defendant Nos.2 to 5) were born. She further alleged that on account of a dispute between the deceased and Smt. Chamoni Devi, Smt. Chamoni Devi deserted the deceased, lived elsewhere and as a result the marriage between the two got desolved as per their customs. Thereafter, the deceased married the plaintiff according to the Hindu rites and customs. The defendant Nos.2 to 5 started living with the plaintiff appellant. After the death of the deceased, Defendant No.1 returned to the residence of the deceased, provoked defendant Nos. 2 to 5 against the plaintiff, and subjected the plaintiff to mental torture for the sake of getting benefit of the LIC Policy of the deceased. The plaintiff requested the concerned officer or defendant No.6 to pay the dues of deceased but in vain. On learning that the defendant No.6 was ready to pay the dues of the deceased to defendant Nos. 1 to 5, she filed this case praying for reliefs as per prayer made in the plaint. The Suit was contested only by Defendant No.6 who in their W.S. dated 31.7.99 stated that the plaintiff has no cause of action to file the suit and that the suit was barred by limitation. The defendant No.6 denied all material allegations of the plaintiff in their W.S. and they stated that they paid the amount only to the nominees noted in the service record of the deceased, and that there is no scope of providing any employment to the plaintiff.

            Upon the aforesaid pleadings of the parties, the ld. Court below framed the following 4 issues:-

I S S U E S

1) Is the Suit maintainable in its present form and in law?

2) Has the plaintiff any cause of action or right to sue?

3) Is the plaintiff entitled to a decree of declaration and permanent injunction as prayed for?

4) To what other relief(s) is the plaintiff entitled?

             On the basis of the aforesaid pleadings of the parties, issues framed by the ld. Court below and the points raised in the Title Appeal, this Court is called upon to decide the following points for the just disposal of this Title Appeal:-

            1) Did the ld. Court below commit any error in appreciating the evidence and or any question of law while deciding the suit as alleged?

            2) Are there any grounds to set-aside the Judgement and Decree passed by the ld. Court below?

DECISION WITH REASONS

Points Nos. 1 & 2: Both these points are taken up together for adjudication for the sake of convenience, continuity and brevity in discussions. From the plaint, it is absolutely clear that the defendant No.1 (Chamoni Devi) was the first legally married wife of the deceased Baccha Singh and defendant Nos. 2 to 5 are the children of the deceased born from the said first wife. Even the plaintiff Mira Devi who as PW1 deposed before the ld. Court below on 13.12.91 in her evidence stated, “Defendant No.1 was the first wife of my husband and out of the wed-lock with Chamoni Devi my husband have 3 sons and 2 daughters. Due to dispute with my husband after giving birth of her last issue, she i.e. defendant No.1 left her matrimonial home leaving all her 5 children.” Therefore, as per pleadings as well as evidence on record, the fact that defendant No.1 is the  first  legally married wife of  deceased Bacchalal  remains undisputed. The plaint case is that the marriage between defendant No. 1 and the deceased Bacchalal got dissolved on account of separation between her and the deceased as per customs. After coming into force of the Hindu Marriage Act, 1955 and in view of the over-riding effect of Sec. 4 of the Act, any custom or usage in force immediately before the commencement of the said Act ceases to have effect with re3spect to any matter for which provision is made in the said Act. Sec.13 of the Act deals with how the marriage solemnized between a husband and a wife gets dissolved by a decree of divorce. The said Act, enlists several grounds for divorce, but no mode is provided in the Act for automatic dissolution of marriage between a husband and a wife on account of any custom or usage. In other words, any custom or usage in existence prior to coming into force of the Hindu Marriage Act, 1955 relating to divorce comes to an end after coming into force of the said Act as because the Act provides in detail how a divorce is becomes effective between the parties belonging to Hindu community. Sec. 13 of the Act leaves no room for scope of any divorce becoming effective on the basis of any custom prevailing in any Hindu community. However Sec. 7 of the Act recognizes certain customs and rites only for the purpose of solemnization of a Hindu marriage. In other words, by virtue of  Sec.4 of the Hindu Marriage Act, a marriage that take place according to the rites and customs of the parties to the marriage shall be valid in view of Sec.7 of the Act, but any custom in force before coming into force of the Hindu Marriage Act, 1955 regarding divorce will not have any force as such a custom of divorce finds no recognition under the Hindu Marriage Act, 1955 and any such custom, if any, ceases to have any effect on account of Sec.4(a) of the Act. Therefore, the marriage between the plaintiff appellant and the deceased, if any, is void ab initio u/Sec.11 of the Hindu Marriage Act, 1955 on account of its taking place during the life-time of the first legally married wife of the deceased. being in contravention of Sec.5(1) of the Act. Therefore, the plaintiff appellant is not the legally married wife of the deceased Bacchalal. As a result, she is not entitled to any benefits as the so called legally married second wife of the deceased. Under these circumstances, I do not find any flaw in the Judgement and decree of dismissal passed by the Court below. Therefore, both the points are decided in favour of the defendant No.1 and against the plaintiff appellant.

            C/F paid is correct. Hence, it is

ORDERED

that the Title Appeal be and the same is dismissed on contest without cost against Respondent No.6 and ex-parte against Respondent Nos.1 to 5 and the Judgement and the Decree passed by the ld. Court below, is hereby affirmed.

            Let a copy of this Judgement be sent to the Court below for information and necessary action by the ld. Court  below.

                                                                        ( Harjinder Singh)

Additional District Judge,

Fast Track 1st Court,

Asansosl.