SUBRAMANI AND ORS.versusM. CHANDRALEKHA

                       SUBRAMANI AND ORS.                                      A
                              v.
                        M.CHANDRALEKHA

                         NOVEMBER 23, 2004

                                                                               B
               [ASHOK BHAN AND A.K. MATHUR, JJ.]

     Hindu Law:

     Hindu Marriage Act. 1955:
                                                                               c
      Sections 11, 13 and 29(2)-Dissolution of Hindu marriage-Customary
divorce-Hindu Vella/a Gounder Community-Dissolution of marriage by
mutual consent-Plaintiff was married to one 'K' and they separated after
two years of marriage-After the death of 'K' plaintiff filed a suit for
partition and possession of the properties of her deceased father-in-law-
Plaintiff pleaded that she being the wife of his son, she was entitled to
his share in the suit properties-Plaintiffs case was that under a registered
maintenance release deed a recital was introduced that the marriage
between the plaintiff and 'K' stood dissolved under the customary law
prevalent in their community-Trial court and first appellate court dismissed
the suit on the ground that the marriage stood dissolved under the custom      E
prevalent in the community-But High Court decreed the suit-Correctness
of-Held: A Hindu marriage can be dissolved only under the provisions
 of S.11 or S.13-Customary divorce must be specifically pleaded and
 established- Defendants failed to either plead the existence of a custom
 in their community to dissolve the marriage by mutual consent or to prove     F
 the same by leading cogent evidence-In the absence of such pleading, the
 marriage between the plaintiff and her husband cannot be dissolved by
 execution of a marriage dissolution deed-Customary divorce must be
 specifically pleaded and established.

      Words & Phrases:                                                         G

      "Customary1 divorce "-Meaning of-In the context of Section 29(2)
of the Hindu Marriage Act, 1955.

     The respondent-plaintiff was married to one 'K' and they separated        H
                                    285
    286                  SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A   after two years of marriage. After the death of 'K' the respondent filed
    a suit for partition and possession of the properties of her father-in-1 aw
    after he died. The respondent pleaded that she being the wife of 'K' was
    entitled to his share in the suit properties. The respondent's case was
    that she was driven out of the house and a registered maintenance
B   release dead was executed. However, the respondent came to know later
    that a recital had been introduced therein that the marriage between
    the respondent and 'K' stood dissolved under the customary law prevalent
    in their community viz., Hindu Vellala Gounder Community.

     The trial court dismissed the suit on the ground that in the
c community to which the appellants and the respondent belonged the
    marriage could be dissolved by executing a marriage dissolution deed
    by mutual consent and, therefore, the marriage between the respondent
    and 'K' stood dissolved. The first appellate court concurred with the
    findings of the trial court. But the High Court set aside the judgments
D   and decree passed by the courts below and decreed the suit filed by the
    respondent-plaintiff. Hence the appeal.

          Dismissing the appeal, the Court

E        HELD : 1. As per Hindu Law divorce was not recognized as a
    means to put an end to a marriage, which was always considered to be
    a sacrament with only exception where it is recognized by custom.
    Hindus after the coming into force of the Hindu Marriage Act, J955 can
    seek to put an end to their marriage by either obtaining a declaration
    that the marriage between them was a nullity on the grounds specified
F   in Section 11 or to dissolve the marriage between them on any of the
    grounds mentioned in Section 13 of the Act, Section 29 of the Act saves
    the rights recognized by custom or conferred by special enactment to
    obtain the dissolution of marriage, whether solemnized before or after
    the commencement of the Act. (290-D-E-F]
G
         2. Prevalence of customary divorce in the community to which the
    parties belong, contrary to general law of divorce must be specifically
    pleaded and established by the person propounding such custom. The
    High Court came to the conclusion that the appellants failed to either
H   plead the existence of a custom in their community to dissolve the
         SUBRAMANI v. M. CHANDRALEKHA [BHAN, J.]                      287

marriage by mutual consent or to prove the same by leading cogent            A
evidence. (290-G-H; 291-A)

     3. The respondent-plaintiff had admitted the execution of the
maintenance release deed but had taken the stand thatthere was no custom
prevalent in their community to dissolve the marriage by mutual consent.     B
But the appellants-defendants did not plead that in their community
marriage could be dissolved under custom. They even failed to respond to
the averments made in the plaint that no custom was prevalent in their
community to dissolve the marriage under custom. (291-B; 291-F-G]

     4. The maintenance release deed had been signed only by the             C
respondent and her late husband 'K' had not signed the same. In the
absence of any pleadings that the marriage between the husband the
wife could be dissolved in their community under custom and in the
absence of any satisfactory evidence let in to prove the custom prevalent
in the community or the procedure to be followed for dissolving the          D
marriage it cannot be held that the marriage between the respondent
and her husband stood dissolved by executing the marriage dissolution
deed. It is not proved that the marriage dissolution deed is in conformity
with the custom applicable to divorce in the community to which the
parties belonged. (292-C-D-E]
                                                                             E
     Yamanaji H. Jadhav. v. Nirmala, (2002) 2 SCC 637, relied on.

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3966 of
2003.

                                                                             F
    From the Judgment and Order dated 2. l l .200 I of the Madras High
Court in S.A. No. 11 of 1991.

    V. Prabhakar, R.S. Krishna Kumar and M.K.D. Namboodiri for the
Appellants.
                                                                             G
     V. Krishna Murthy and T. Harish Kumar for the Respondent.

     The Judgment of the Court was delivered by

     BHAN, J. : This appeal by grant of leave has been filed by the
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    288                   SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A   defendants-appellants against the judgment and order of the High Court of
    Judicature at Madras in Second Appeal No. 11 of 1991. High Court by the
    impugned judgment has set aside the judgments and decree passed by the
    courts below and has decreed the suit filed by the plaintiff-respondent
    herein.
B
          Facts relevant to resolve the controversy in this appeal are :

          Perianna Gounder (who died during the pendency of the suit) had three
    sons, namely, Late Natessa Muthu@Perianna Gounder, Subramani (appellant
    No. 1) and Kandasamy. Pongiammal and Rajeswari (minor) appellants 2 and
c   3 are the wife and daughter of Late Natessa Muthu. Plaintiff-respondent M.
    Chandralekha is the wife of Kandasamy.

          According to the plaintiff-respondent (hereafter referred to as the
    "respondent") there was a partition in the family in the year 1968 between
D   the father and his three sons. In that Perianna Gounder was allotted 'A'
    schedule property while his three sons were allotted 'B' schedule property.
    Subramani and Kandasamy in the year 1980 purchased 'C' schedule property.
    Thereafter, in the year 1983 Perianna Gounder settled 'A' schedule property
    in favour of Subramani and Kandasamy. 'D' schedule property which is an
    agricultural land was purchased again by the two brothers Subramani and
E   Kandasamy.

          Respondent No. I was married to Kandasamy in the year 1981. They
    separated in the year 1983. Kandasamy died on 21. 7.1986. Respondent filed
    the suit for partition and possession of schedule properties 'A', 'B' and 'D'
F   and also claimed mesne profits. It was pleaded that she being the wife of
    Kandasamy was entitled to the share ofKandasamy in the schedule properties.
    She claimed 1/2 share in 'A', 'C' and 'D' schedule properties and I/3rd
    share in 'B' schedule property. That differences aro~e between the respondent
    and Kandasamy due to which the respondent was driven out of the house
    and all efforts to reunite them failed. A registered maintenance release deed,
G   Ex. B-1, came to be executed on 25.10.1984 in which the respondent on
    receipt of Rs. 14,000 released her claim towards maintenance. Later,
    respondent came to know that while writing Ex. 8- I a recital had been
    introduced therein that the marriage between the respondent and Kandasamy
    stood dissolved under the customary law prevalent in the community. It was
H   averred that parties belonged to Vellala Gounder Community and no custom
              SUBRAMANI v. M. CHANDRALEKHA [BHAN, J.]                        289

    was prevalent in their community to dissolve the marriage under custom.          A
    Even if such a recital was there in the aforesaid document, the same did not
    have any legal effect and the relationship between her and Kandasamy
    continued to subsist.

          Defendants contested the suit. Subramani filed the written statement
                                                                                     B
    which was adopted by appellant Nos. 2 and 3. It was contended that Natessa
    Muthu had died seven years prior to the filing of the suit and not twelve
    years as alleged in the plaint. That there had been oral partition of 'B'
    schedule property as between the appellants and Kandasamy in the year
     1983 and therefore the question of enjoying the 'B' schedule property either
    jointly or in common did not arise. It was admitted that Kandasamy was           c
    married to the respondent. It was admitted that Schedule properties 'A' &
     'C' had been purchased/settled in favour of Subramani and Kandasamy. It
    was denied that these Schedule properties had been purchased by them. It
    was pleaded by them that Kandasamy had borrowed Rs. 50,000 from
    Subramani and incurred debts to the tune of Rs. 90,000 from third parties.       D
    Kandasamy had directed his brother Subramani to discharge all his debts
    and in lieu thereof take his share in the properties, but before executing any
    deed to the aforesaid effect Kandasamy committed suicide on 21.7.1986.
    According to them, Kandasamy had given up his rights over the suit properties
    and was therefore not possessed of any properties at the time of this death.
    According to them, marriage between the respondent and Kandasamy had             E
    been dissolved as per dissolution deed (Ex. B-1) and the respondent could
    not take advantage of her own fraudulent act. According to them Kandasamy
    had committed suicide due to differences with the respondent and therefore
    the respondent had no right to seek partition. It was pleaded that respondent
    had no right to claim partition nor ~ould she ask the Court to overlook the      F
    marriage dissolution deed (Ex. B-1 ).

         The Trial Court after considering the oral and documentary evidence
    came to the conclusion that respondent was entitled to Y2 share in 'A', 'C'
    and 'D' schedule properties and I/3rd share in 'B' schedule property but
                                                                                     G
-   dismissed the suit on the ground that in the community to which the parties
    belong the marriage could be dissolved under custom and the marriage
    between the respondent and late Kandasamy stood dissolved by the marriage
    dissolution deed Ex. B-1. The Judgment and decree passed by the trial Court
    was upheld in the first appeal. The first Appellate Court concurred with the
                                                                                     H
    290                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   findings recorded by the trial Court.

         Being aggrieved respondent filed the Second Appeal in the High Court.
    At the time of admission of the appeal the following substantial question
    of law said to be arising in the appeal was framed :
B
            "Whether Ex. B-1dated25.10.1984 can be construed as bringing
            about a divorce as contemplated under the provisions of the Hindu
            Marriage Act and would operate to extinguish the rights of the
            appellant in her husband's properties?"

C        The only point argued before the High Court was whether the document
    Ex. B-1 dated 25.10.1984 dissolved the marriage between the respondent
    and late Kandasamy. This is the only point argued before us as well.

          It is not disputed before us that as per Hindu Law divorce was not
D   recognized as a means to put an end to marriage which was always considered
    to be a sacrament with only exception where it is recognized by custom.
    Hindus after the coming into force the Hindu Marriage Act, 1955 (for short
    "the Act") can seek to put an end to their marriage by either obtaining a
    declaration that the marriage between them was a nullity on the grounds
    specified in Section 11 or to dissolve the marriage between them on any of
E   the grounds mentioned in Section 13 of the Act. Section 29 of the Act saves
    the rights recognized by custom or conferred by special enactment to obtain
    the dissolution of marriage, whether solemnized before or after
    commencement of the Act. Section 29(2) of the Act reads :


F            "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 commencement of this Act."

          It is well established by long chain of authorities that prevalence of
G   customary divorce in the community to which parties belong, contrary to
    general law of divorce must be specifically pleaded and established by the
    person propounding such custom. The High Court came to the conclusion
    that the appellants failed to either plead the existence of a custom in their
    community to dissolve the marriage by mutual consent or to prove the same
H
         SUBRAMANI v. M. CHANDRALEKHA [BHAN, J.]                             291

by leading cogent evidence.                                                          A

     Counsel for the parties have been heard.

     Respondent had admitted the execution of document Ex. B-1 but has
taken the stand that there was no custom prevalent in their community to             B
dissolve the marriage by mutual consent. In para 5 of the plaint it was
pleaded :

         "It is now understood that while so doing, it has been written in
         the said deed that the marriage between Kandasamy and the plaintiff
         was cancelled. The parties was Hindu Vella la Gounder Community.            C
         There is no caste - custom of divorce with them. Hence, even it
         there is such a recital, it has no legal effect. Still, the marriage
         relationship of the plaintiff and Kandasamy is subsisting."

     The above claim of the respondent was dealt with and answered by the            D
appellants in para 6 of their written statement wherein it was stated as under



         "Plaint paragraph 5 is correct in so far as it relates to the dissolution
         of marriage between the plaintiff and the late Kandasamy, the
         dissolution deed, and the payment therefor. Now the plaintiff cannot        E
         be allowed to take advantage of her own fratfdulent act upon the
         late Kandasamy and especially after driving him to the brink of
         disappointment and desolation and finally suicide. The plaintiff has
         no tenable right to claim petition nor can she ask the court to
         overlook a substantial document of marriage dissolution deed."              F

      From a perusal of the above averments in the pleadings, it is clear that
defendants-appellants did not plead that in their community marriage could
be dissolved under custom. They even failed to respond to the averments
made in the plaint that no custom was prevalent in their community to
dissolve the marriage under custom. In the absence of such pleadings the             G
Trial Court rightly did not frame an issue as to whether the marriage in the
community to which the parties belong could be dissolved under the custom
prevalent in their community.


                                                                                     H
    292                   SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A         Though no issue was framed on this point the appellants did examine
    DWs. 2 and 5 to show that in their community marriage could be dissolved
    under the customary law. We have gone through the statements of these
    witnesses which have been reproduced verbatim after translation in the
    order of the Trial Court On perusal of their testimonies, it cannot be held
B   that custom was prevalent in their community to dissolve the marriage by
    mutual consent. Neither of these witnesses has stated as to what is the
    procedure to be followed for dissolving a marriage under the custom prevalent
    in their community. It is not their case that marriage could be dissolved
    between the husband and wife in their community by executing a document
    in the form of an agreement. The agreement B-1 has been signed only by
C   the respondent and her late imsband Kandasamy has not signed the same.
    In the absence of any pleadings that marriage between the husband and wife
    could be dissolved in their community under custom and in the absence of
    any satisfactory evidence let in to prove the custom prevalent in the community
    or the procedure to be followed for dissolving the marriage it cannot be held
D   that marriage between the respondent and her husband stood dissolved by
    executing the marriage dissolution deed Ex. B-1. It is not proved that the
    document Ex. B-1 is in conformity with the custom applicable to divorce
    in the community to which the parties belong. This Court in Yamanaji H.
    Jadhav v. Nirmala, (2002) 2 SCC 637, has held that custom has to be
    specifically pleaded and established by leading cogent evidence by the
E   person propounding such custom. It was held :

             "The courts below have erroneously proceeded on the basis that the
             divorce deed relied upon by the parties in question was a document
             which is acceptable in law. It is to be noted that the deed in question
F            is purported to be a document which is claimed to be in conformity
             with the customs applicable to divorce in the community to which
             the parties belong. As per the Hindu law administered by courts in
             India divorce was not recognized as a means to put an end to
             marriage, which was always considered to be a sacrament, with
             only exception where it is recognized by custom. Public policy,
G            good morals and the interests of society were considered to require
             and ensure that, if at all, severance should be allowed only in the
                                                                                       .
             manner and for the reason or cause specified in law. Thus such a
             custom being an exception to the general law of divorce ought to
             have been specially pleaded and establish by the party propounding
H
          SUBRAMANI. v. M. CHANDRALEKHA [BHAN, J.]                      293

         such a custom since the said custom of divorce is contrary to the      A
         law ofthe land and which, if not proved, will be a practice opposed
         to public policy. Therefore, there was an obligation on the trial
         court to have framed an issue whether there was proper pleading
         by the party contending the existence of a customary divorce in the
         community to which the parties belonged and whether such               B
         customary divorce and compliance with the manner or formalities
         attendant thereto was in fact established in the case on hand to the
         satisfaction of the Court."
                                                         (Emphasis supplied)

    We respectfully agree with and follow the view taken by this Court in       C
Yamanaji H. Jadhav's case (supra)

     Accordingly, we find no merit in this appeal and dismiss the same with
no order as to costs.
                                                                                D
V.S.S.                                                    Appeal dismissed.