Chhattisgarh High Court
Case BriefsHigh Courts

   

Chhattisgarh High Court: In a case related to an appeal filed against the decision of the family Court, whereby an application filed by the husband seeking divorce was dismissed, Goutam Bhaduri, J. held that the marriage must be stand dissolved under S. 13 of the Hindu Marriage Act, 1955 (‘HMA’) by a decree of divorce primarily on the ground of customary divorce followed by the desertion of each other. Further, for a custom to have a colour of a rule of law, it is necessary for a party claiming it to plead the custom as ancientIn this case, the parties were married in 1982 and eventually a customary divorce was executed in 1994. As the customary divorce was not recognized by the employer of the parties, the husband filed an application under S. 13 HMA in 1995, wherein an ex-parte decree of divorce was passed. Subsequently, the appellant performed a second marriage and thereafter an application was filed by the wife under O. 9 R. 13 of Code of Civil Procedure, 1908 (‘CPC’) to set aside the earlier ex-parte decree.

The Family Court set aside the ex-parte decree. Thereafter, the initial suit continued and eventually it was dismissed by the impugned order. The wife further filed a civil suit for declaration with a prayer that customary divorce is bad in law and would not be operative, the suit was eventually dismissed and however the wife succeeded in the appeal. In such judgment the Appellate Court observed that since the appeal pertaining to same issue is pending before the High Court any finding given by the High Court would prevail over the finding of the appellate court.

The Court observed that “a plain reading of S. 29(2) HMA, clears that a marriage can still be dissolved in accordance with the custom governing the parties or under any other law providing for the same. The operating words of this section that ‘nothing contained in this Act shall be deemed to affect any right recognised by custom’ would lead to demonstrate that the provisions of the Act do not nullify the existence of any custom which confers a right on a party to obtain a dissolution of a Hindu marriage”.

It is further viewed that normally under HMA, the dissolution of a marriage by custom is not recognized but the saving clause of S. 29(2) recognises the customary divorce unless it is against the public policy.

The Court noted that the parties before execution of customary divorce were living separately for three years, and it was written that they cannot adjust with each other and hence decided to get separated. It also contains that both the parties would be free to remarry after the customary divorce and even the custody of the children was also decided. Further, there is no effort of any reunion till date, and they were living separately from past 28 years and the circumstances would show that there is irretrievable breakdown of the marriage and the parties have deserted each other, both mentally and physically.

The Court took note of the ruling in Bipinchandra Jaisinghbai Shah v. Prabhavati, 1956 SCR 838, and observed that “to establish desertion, there must be two essential conditions namely; (i) the factum of separation; and (ii) the intention to bring cohabitation permanently to an end

In the present case, the parties have separated for a long time and with the passage of time it do not show that there is any intention of reunion. Therefore, the Court held that Hindu marriage may be dissolved either under S.13 of HMA or under any special enactment in accordance with the custom applicable to the parties and S.29(2) HMA do not disturb the practice of customary divorce prevailing, before the Act came into force.

[Duleshwar Prasad Deshmukh v. Kirtilata Deshmukh, 2022 SCC OnLine Chh 1567, decided on 24.08.2022]


Advocates who appeared in this case :

Anurag Dayal Shrivastava, Advocate, for the Appellant;

B.P. Singh, Advocate, for the Respondent.

Case BriefsSupreme Court

Supreme Court: In an interesting case, the Division Bench comprising of L. Nageswara Rao and B.R, Gavai, JJ., acquitted the appellant  who raped his own niece and later on married her.

The Court took note of the custom in Tamilnadu which permits the marriage of a girl with her maternal uncle; and the statement of the prosecutrix that she is leading a happy married life with the appellant to hold that,

“This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix”.  

The appellant belonged to Valayar community, which is the most backward community in the State of Tamilnadu and was working as a woodcutter on daily wages in a private factory. An FIR was lodged against him for committing raping his niece under Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n) read with Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012.

The Trial Court convicted the appellant and sentenced him to ten years rigorous imprisonment, which was upheld by the High Court. Aggrieved thereby, the appellant had approached the Supreme Court.

The appellant submitted that the allegation against him was that he had physical relations with the prosecutrix on the promise of marrying her. The appellant  argued, since he has in fact married the prosecutrix and they have two children it would not be in the interest of justice to disturb the family life of the appellant and the prosecutrix.

On the contrary, the State opposed the grant of any relief to the appellant contending that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and, second child was born when she was 17 years. The State contested the legality of marriage between the appellant and the prosecutrix and argued that the marriage might only be for the purpose of escaping punishment.

The Court considered the statement of the prosecutrix about her present status where she had categorically stated, “she has two children and they are being taken care of by the appellant and she is leading a happy married life.”

Further, taking note of the custom in Tamilnadu of marriage of a girl with the maternal uncle, the Court held that,

“In the peculiar facts and circumstances of this case, we are of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court.” 

With the holding that the Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix, the Court set aside the conviction and sentence of the appellant while granting liberty to the prosecutrix and State to move the Supreme Court for modification of the order if the appellant does not take proper care of the prosecutrix.

As a note of caution, the Court added that in the peculiar facts of the case, it shall not be treated as a precedent.

[K Dhandapani v. State by the Inspector of Police, Cr. A. No.796 of 2022, decided on 09-05-2022]


Appearance by:

For the Appellant: M.P. Parthiban, Advocate

For the State: Dr. Joseph Aristotle S., Advocate


Kamini Sharma, Editorial Assistant has put this report together

 

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., dealt with a petition which prayed for waiver of import and other duties on Amphotericin B, which is a drug being used for treatment of Mucormycosis (Black Fungus).

Counsel for the respondent informed the Court that Import Duty payable on import of Amphotericin B was 27 % wheareas the counsel for the petitioner informed it to be 70 %. Counsel for the respondent however submitted that there is complete waiver of customs duty on life saving drugs imported for personal use via a notification and on instructions, Amphotericin B would be covered by the said notification.

The Court was of the view that the said drug is required to save lives of the people suffering from the disease which is inflicting thousands of people all over the country, and there is acute shortage of the same in the country, and that the Central Government should seriously consider waiver of complete Customs and other duties & levies on the import of the said drug by all, at least, for the period that the same is in short supply in India and is required to treat the disease, namely Mucormycosis (Black Fungus).

The Court directed that if any import is made by any person of the said medicine, the same may be cleared by accepting a bond (to the effect that in case the duty is payable and not waived, the same shall be paid) from the importer without actual payment of duties till a final decision on the said aspect is taken. The Court will hear the matter on 01-06-2021.

[Laieq Ahmad Siddiqui v. Govt. of NCT of Delhi,  2021 SCC OnLine Del 2986, decided on 27-05-2021]


Suchita Shukla, Editorial Assistant had put this report together 

For the petitioner: Mr Rohit Sharma

For the respondent: Mr Rahul Mehra, Senior Advocate along with Mr Gautam Narayan, ASC & Mr Satyakam, ASC with Mr Aditya P. Khanna, Ms Dacchita Sahni, Ms Ritika Vohra and Mr Chaitanya Gosain, Advocates for the respondent/ GNCTD.

 Mr Amit Mahajan, Mr Kirtiman Singh & Ms Nidhi Mohan Parashar, CGSCs for the respondent/ UOI.

Mr Ashish Mohan, Advocate for respondent No.3/ SGRH.

Mr Rajshekhar Rao, Senior Advocate (Amicus Curiae) along with Mr Anandh Venkataramani, Ms Mansi Sood, Ms Sonal Sarda and Mr Areeb Amanullah, Advocates.

Mr Krishnan Venugopal, Senior Advocate with Mr Manan Verma, Mr Aditya N Prasad, Mr Kaushik Mishra & Ms Anmol Srivastava, Advocates.

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J., discusses the decision of trial Court and first Appellate Court with regard to alienation of the property of a deceased by his alleged wife.

Facts of the instant case relate to the dispute in property left by Sukhdev. Both Sukhdev and his wife died issue-less.

Plaintiff claimed that he is the brother of Sukhdev and after the death of Sukhdev, he inherited the property left by Sukhdev and Shanti Bai, whereas defendant 1 alternatively claimed that she had married Sukhdev Sukhdev in Chudi form and became his wife thereafter, got her name mutated in the revenue record.

Plaintiff submitted that defendant 1 has no relationship with the family of Sukhdev and has illegally got her name mutated.

Trial Court

Trial Court decreed the suit holding that the suit property was the joint family property of Sukhdev and Anirudh Prasad Kamal Sen — plaintiff and defendant 1 is not the wife of Sukhdev and therefore the alienation made by defendant 1 — Dashmat bai in favour of defendant 1 is null void.

First Appeal | Second Appeal

On appeal being preferred before the first appellate Court by defendants 1 & 2 being dissatisfied with the judgment & decree of the Trial Court, the first appellate Court allowed the appeal and set aside the judgment & decree of the Trial Court and eventually dismissed the suit feeling aggrieved against which this second appeal has been preferred by the plaintiff under Section 100 of the CPC in which substantial questions of law.

Analysis & Decision

CUSTOM

Section 5 of the Hindu Marriage Act, 1955 lays down conditions for a Hindu marriage and Section 7 lays down ceremonies for a Hindu marriage by providing that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto.

Section 29 of the Act of 1955 saves the rights recognised by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnised before or after the commencement of the Act.

Section 3(a) of the Hindu Marriage Act, 1955 defines the expressions “custom” and “usage”.

Bench stated that Custom must have been observed for a long time and must be ancient.

Customs will have to be always strictly proved and in relation to matrimonial matters particularly to the existence of customs.

The Supreme Court in the matter of Yamanaji H. Jadhav v. Nirmala, (2002) 2 SCC 637 has held that custom being an exception, the general rule of divorce ought to have been specifically pleaded and established by leading cogent evidence by the person propounding such custom.

Principle of law laid down in Yamanaji H. Jadhav v. Nirmala, (2002) 2 SCC 637,  was followed with approval by the Supreme Court in the matter of Subramani v. M. Chandralekha, (2005) 9 SCC 407, by holding that as per Hindu law, divorce was not recognised as a means to put an end to marriage which was always considered to be a sacrament, only exception being where it was recognised by custom.

Now, coming back to the instant case, the dispute was with regard to the property left by Sukhdev who is the brother of the plaintiff. Whereas, defendant 1 claiming to be the wife of Sukhdev in Chudi form, alienated the suit property to defendant 2 which has been questioned in the suit.

It has also been alleged that Dashmat bai had married two other people prior to her alleged marriage with Sukhdev, though there was no evidence on record in regard to her divorce with the other two people.

Father of Dashmat bai, Jaitram (DW-1) categorically stated that he was not present at the time when Dashmat bai allegedly entered into marriage in Chudi Form with Sukhdev, which is quite unnatural that father was not present at the time of such important ceremony.

Similarly, Dashmat Bai herself could have entered into the witness-box and offered herself for cross-examination in absence of which adverse inference could be drawn against her.

As there was no iota of evidence of marriage having been taken place between Dashmat Bai and Sukhdev in view of the testimony of her father Jaitram (DW-1) and another witness DW-2, as they were not present in the said alleged marriage and in view of the fact that defendant 1 Dashmat Bai did not offer herself for cross-examination, adverse inference against her has to be drawn.

Hence, in view of the discussion, it can be said that no relationship of husband and wife existed between the defendant 1 and Sukhdev.

The question that needs to be answered is whether, by the alienation made by defendant 1, title was conveyed to defendant 2?

Supreme Court in its decision of Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259, dealt with the question of competency of a person to transfer property and transfer of property by a person without rights, wherein the following was held:

“7. Since Mangal Kumhar did not have an exclusive right, title or interest in the suit property, his widow Etwari Kumharin was not legally competent to sell the suit property to the appellants, purporting to be the sole owner of the property. Reliance is placed on Eureka Builders v. Gulabchand, (2018) 8 SCC 67 wherein this Court held: (SCC pp. 75-76, paras 35-36)

“35. It is a settled principle of law that a person can only transfer to other person a right, title or interest in any tangible property which he is possessed of to transfer it for consideration or otherwise. In other words, whatever interest a person is possessed of in any tangible property, he can transfer only that interest to the other person and no other interest, which he himself does not possess in the tangible property.

36. So, once it is proved that on the date of transfer of any tangible property, the seller of the property did not have any subsisting right, title or interest over it, then a buyer of such property would not get any right, title and interest in the property purchased by him for consideration or otherwise. Such transfer would be an illegal and void transfer.”

(emphasis supplied)

Court held that the alienation made by defendant 1 in favour of defendant 2 holding her to be the wife of Sukhdev as the property was originally owned by Sukhdev, is clearly void.

In view of the above discussion, decree be drawn up accordingly. [Anirudh Prasad Kamal Sen v. Dashmat Bai Suryavanshi, Second Appeal No. 93 of 2009, decided on 28-08-2020]

Case BriefsHigh Courts

Kerala High Court: In an appeal filed against a decision of the trial court which declared that the people belonging to the Sambava community had successfully established that burial of dead bodies in the property under question was their customary right, a Single Judge Bench of K. Ramakrishnan, J. upheld the lower court’s decision. In the suit before the lower court, the appellant had contended that the property belonging to him was being used for burial grounds without the existence of any right and sought for injunction. The respondents contended that the aforesaid property was being used as a burial ground to bury the dead bodies of the members of the Sambava community of that locality since time immemorial and they had subsequently acquired a customary right for the same.

The issues before the Court were whether the respondents herein had successfully established the presence of ingredients that grant customary easement over a property and whether the lower court was justified in declaring such usage of property to be a custom without considering the question of unreasonableness. The Court, relying on a plethora of previous decisions with respect to both the issues established that the right to use a portion of land as burial ground by persons belonging to a community in a locality (instead of being claimed by a definite person) is a customary right and not easement and that a practice to be recognized as a custom “should be immemorial in origin, certain and reasonable in nature and continuous in use.”

Basing the decision on the examination of two Commissioners, reports submitted by an executive officer and enquiries made by the District Colletor, the Court affirmed the decision of the lower court that the respondents had a customary right over the property for the purpose of burying their dead as a customary right. [Devassykutty v. Ayyappan, 2017 SCC OnLine Ker 8164, decided on 21.06.2017]