BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15/02/2011
CORAM
THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR
S.A(MD)NO.63 of 2011
and
S.A(MD)NO.64 of 2011
S.A.No.63 of 2011
1. Tmt.Rajakani
2. Manoj Kumar, minor,
represented by his next friend, guardian
and mother, the first appellant herein.
3. Petchiammal ...Appellants
vs
1. Sumathi
2. R.Gowtham, minor,
represented by his next friend, guardian and mother,
the first respondent herein Sumathi.
3. The Tahsildar,
Uthamapalayam Taluk,
Theni District. …Respondents
S.A.No.64 of 2011
Tmt.Rajakani …Appellant
vs
1. Sumathi
2. R.Gowtham, minor,
represented by his next friend and guardian
and mother, the first respondent herein.
3. The Forest Ranger,
Oddanchathiram
Dinidgul District.
4. The District Forest Officer, Dindigul. ...Respondents. PRAYER in S.A.No.63 of 2011 Second Appeal filed under Section 100 of Civil
Procedure Code, praying this Court to set aside the judgement and decree made
in A.S.No.8 of 2006,dated 26.06.2006, on the file of the Subordinate Judge,
Uthamapalayam, partly allowing the judgment and decree made in O.S.No.67 of
2004, dated 21.09.2005, on the file of the District Munsif,Uthamapalayam.
PRAYER in S.A.No.64 of 2011
Second Appeal filed under Section 100 of Civil
Procedure Code, praying this Court to set aside the judgement and decree made
in A.S.No.7 of 2006,dated 26.06.2006, on the file of the Subordinate Judge,
Uthamapalayam,confirming the judgment and decree made in O.S.No.89 of 2004,
dated 21.09.2005, on the file of the District Munsif,Uthamapalayam.
!For Appellant ... Mr.V.Saravanan in both S.As' for M/s.R.Narayanan ^For Respondents ... M/s.A.Saravanan in both S.As' :COMMON JUDGMENT
The Plaintiffs in O.S.No.67 of 2004, on the file of the learned District
Munsif, Uthamapalayam are the appellants in Second Appeal No.63 of 2011. The
defendants therein are the respondents in the second appeal, namely S.A.No.63 of
2011. The appellants in S.A.No.63 of 2011 filed the above said original suit
O.S.No.67 of 2004, on the file of the learned District Munsif, Uthamapalayam for
the reliefs of declaration that the appellants in S.A.No.63 of 2004 and the
second respondent in the said second appeal,namely minor R.Gowtham alone were
the legal heirs of deceased Ponniah.
2. The respondents 1 and 2, namely Sumathi and minor Gowtham had filed
another suit on the file of the very same court as O.S.No.89 of 2004 arraying
Rajakani, the first plaintiff in O.S.No.67 of 2004 and one Petchiammal as
defendants 1 and 5, besides arraying the officials as defendants 2 to 4 praying
for a declaration that Sumathi and minor Gowtham and Petchiammal alone were the
legal heirs of the deceased Ponniah and for a consequential direction to pay the
terminal-cum-death benefits of Ponniah to Sumathi, minor Gowtham and
Petchiammal.
3. Both the suits were tried together by the trial court and the trial
court dismissed the suit O.S.No.67 of 2004 and decreed the suit O.S.No.89 of
2004. The common judgment and decrees were passed on 21.09.2005. The plaintiffs
in O.S.No.67 of 2004 preferred an appeal on the file of the learned Subordinate
Judge, Uthamapalayam as A.S.No.8 of 2006 against the decree passed by the trial
court dismissing O.S.No.67 of 2004. Similarly, Kani @ Rajakani, who figured as
the first defendant in O.S.No.89 of 2004 preferred another appeal in A.S.No.7 of
2006, on the file of the learned Subordinate Judge, Uthamapalayam challenging
the decree passed by the trial court in O.S.No.89 of 2004.
4. Both the appeals were tried together and the learned Subordinate Judge,
Uthamapalayam allowed the appeal A.S.No.7 of 2006 in part and modified the
decree passed by the trial court to the effect that along with the plaintiffs in
O.S.No.89 of 2004, namely Sumathi and minor Gowtham and the fifth defendant
therein namely Petchiammal, minor Manoj Kumar, who figured as the second
plaintiff in the connected suit, namely O.S.No.67 of 2004 was also the legal
heir of the deceased Ponniah and that Sumathi and Gowtham were entitled to
proportionate share in the terminal-cum-death benefits of the deceased Ponniah.
Similarly, A.S.No.8 of 2006 was allowed in part and minor Manoj Kumar,
Petchiammal, Sumathi and minor Gowtham were declared as the legal heirs of the
deceased Ponniah.
5. Questioning the correctness of the decrees passed by the lower
appellate court, second appeal No.63 of 2011 has been filed by Tmt.Rajakani,
minor Manojkumar and Petchiammal, who figured as plaintiffs in O.S.No.67 of 2004
and Tmt. Rajakani alone preferred an appeal in S.A.No.64 of 2011.
6. Both the second appeals involve one and the same issue. Admittedly,
Late Ponniah married Sumathi and through Sumathi, got a son by name
Gowtham(minor). Petchiammal is the mother of the said Ponniah. It is also not
in dispute that minor Manoj Kumar is also a son of the late.Ponniah born through
Tmt.Rajakani. It is the contention of the appelants in both the second appeals
that the marriage between Late.Ponniah and Sumathi got dissolved by a customary
divorce and thereafter, he married Rajakani and out of the said wedlock, minor
ManojKumar was born. Based on the said pleading, the appellants in S.A.No.63 of
2011, who were the plaintiffs in O.S.No.67 of 2004 have taken a stand that they
alone were the legal heirs of the deceased Ponniah and that Sumathi and her son
Gowtham were not the legal heirs of the Late.Ponniah.
7. Per contra, it is the contention of sumathi and minor Gowtham, the
respondents 1 and 2 in both the appeals,who figured as plaintiffs 1 and 2 in
O.S.NO.89 of 2004 and defendants 1 and 2 in O.S.No.67 of 2004, that they and
Petchiammal alone are the legal heirs of deceased Ponniah. It is their
contention that the alleged customary divorce was not true and hence the
marriage of Ponniah with Rajakani was not legally valid and minor ManojKumar,
having been born not out of lawful wedlock, would not become the legal heir of
late Ponniah. Though, the trial court dismissed the suit O.S.No.67 of 2004 in
entirety and decreed the suit filed by Sumathi and Gowtham as prayed for, on
appeal the lower appellate court has modified the decrees passed in both the
suits by holding that though the customary divorce pleaded by the appellants
herein was not proved and hence, the marriage of Ponniah with Rajakani was not
legally valid, minor Manoj Kumar was also a legal heir of Late. Ponniah by
virtue of Section 16 of the Hindu Marriage Act, 1955, since admittedly, he was
born out of the marriage between Late. Ponniah and Rajakani which shall be void
because of the fact that it took place during the lifetime of the legally
wedded wife Sumathi and that marriage had not been dissolved by then. Thus the
learned first appellate Judge has held that Sumathi the legally wedded wifeof
Ponniah, minor Gowtham the son born through Sumathi, Petchiammal, mother of
Ponniah and son born out of a void marriage, namely minor Manoj Kumar were the
legal heirs of deceased Ponniah.
8. Questioning the correctness of the judgments and decees of the first
appellate court, insofar as the finding relating to the issue of the alleged
customary divorce dissolving the marriage between Ponniah and Sumathi and the
resultant consequences in the relationship, the appellants have preferred these
two second appeals. The decision in both the second appeals revolves around the
resolution of the issue as to whether the appellants were able to substantiate
their contention that a custom of having extra judicial divorce is prevailing in
the community of Piranmalai Kallar of Theni District and whether actually such a
customary divorce took place before the marriage of Ponniah with Rajakani. Since
the issues are common and since both the cases were tried together by the trial
court as well as the first appellate court and disposed by common judgement,
this Court also deems it fit and convenient to hear both the appeals jointly and
dispose of the same by the following common judgement.
9. The arugments advanced by Mr.V.Srinivasan, learned counsel for the
appellants appearing on behalf of M/s.R.Narayanan (Counsel on record) in both
the second appeals, regarding the admission of the second appeals were heard.
The grounds of appeal, copies of the judgments of the courts below, copies of
the decrees of the courts below and copies of other documents produced in the
form of typed-set of papers were also perused.
10. Under Section 100 of Civil Procedure Code, an appeal from the decree
of an appellate court subordinate to the High Court shall be entertained by the
High Court only on a substantial question of law. In this case, the learned
counsel for the appellants has made an attempt to show that these second appeals
involve a substantial question of law. It is the contention of the learned
counsel for the appellants that though a specific plea of custom prevailing in
the community was made by the appellants and such a plea was disputed by the
contesting respondents, namely respondents 1 and 2, the trial court failed to
frame a specific issue in this regard and the non-framing of such issue could
be projected as a substantial question of law in the second appeals. It is also
the contention of the learned counsel for the appellants that though the lower
appellate court has framed a specific point for determination in this regard,
the defect caused in the proceedings of the trial court does not stand cured by
the same and that both the courts below have erroneously held that even assuming
the existence of such custom, actual divorce was not proved by reliable
evidence. In support of his contention, the learned counsel for the appellants
cited a judgment of the Honourable Supreme Court in subramani and others .vs.
M.Chandralekha reported in 2005-2/L.W.158.
11. This Court paid its anxious consideration to the above said
submission made by the learned counsel for the appellants. This Court also
perused the relevant portion of the pleadings and evidence in order to find out
whether any finding of fact could be termed perverse. The attraction of the
observation made by the Honourable Supreme Court in the above said judgment
cited by the learned counsel for the appellants was also considered by this
Court. Upon such consideration, this Court comes to the conclusion that the
facts of the case which went before the Supreme Court are somewhat different
from the facts of the case on hand. In the said case before the Supreme Court,
a document styled as divorce deed was accepted by the court without considering
the question whether there was any custom recognizing extra judicial divorce.
The said mistake was not corrected till the matter went upto the Supreme Court.
That is the reason why the Honourable Supreme Court in the said case, made an
observation that the trial court ought to have framed a specific issue
regarding the existence of such a custom and decided that issue.
12. But, in the case on hand, the existence of the custom was pleaded by
the appellants herein and the same was denied and disputed by the contesting
respondents, namely respondents 1 and 2. The trial court, no doubt, failed to
frame a specific issue regarding the said plea. Nevertheless it chose to discuss
the pleading and evidence while answering issue No.1 in both the cases, namely
issue regarding the question of legal heirship of the deceased Ponniah. There
are umpty number of judgments in which it has been held that the non-framing of
an issue may not affect or vitiate the judgement, provided the parties went for
trial knowing fully well what their rival pleadings are and what are the points
in dispute are and that in such a case,the said defect would be only an
irregularity that can be corrected by the first appellate court or second
appellate court. In this case,though the trial court did not frame an issue
regarding the plea of the appellants that there existed a custom granting extra
judicial divorce, the parties knowing fully well that the same was the main
issue involved in this case, let in evidence to the full extent and the said
issue was decided by the trial court based on the said evidence. When the matter
was taken up on appeal to the lower appellate court, the lower appellate court
framed a specific point for determination and decided the same on the strength
of the evidence both oral and documentary, that had been adduced on either
side. Therefore the said irregularity stands cured by the judgment of the lower
appellate court. No longer, the said plea on the basis of non-framing of a
specific issue is available to the appellants. Hence, the first question
sought to be projected as a substantial question of law cannot be accepted as a
substantial question of law involved in this case.
13. The next contention of the learned counsel for the appellants is to
the effect that the finding of the courts below negativing the plea of the
appellants that there exists a custom of getting extra judicial divorce is
perverse and hence, this Court should interfere with the judgment of the lower
appellate court in this regard. It is also the contention of the learned
counsel for the appellants that the further finding of the courts below that
such extra judicial divorce as per Ex.A7-divorce deed was not factually
substantiated is also perverse, since the courts below took into consideration
the evidence adduced on the side of the appellants alone and omitted to consider
the evidence adduced on the side of the contesting respondents, namely
respondents 1 and 2. Approaching the court for dissolution of marriage is the
recongnized mode of getting such relief. Permitting to have extra judicial
divorce based on custom which has acquired the force of law is only an exception
to the general principle. Whoever pleads such a custom, which is an exception
to the general principle, is bound to give strict proof of the same. To prove a
custom, one should let in evidence to the effect that there existed such an
usage from time immemorial and due to continuous adoption of such usage and
practice, it has acquired the force of law and in fact, it has been recognized
to be a part of law. To be successful in substantiating such a plea of custom,
continuous and frequent instances without any deviation should be proved.
14. In this case, it is not the evidence of the appellants that the
members of the community to which the parties belong never approached the court
for divorce and they were adopting a practice of having extra judicial divorce
obtained in Panchayat. It is also not the case of the appellants that no one in
the community of the said district had ever chosen to challenge the existence of
such a custom. It is also an admitted fact that so far, there is no case in
which the existence of such a custom in the concerned community is recognized in
a judicial proceedings by a court of law. Apart from that, there is also lack
of evidence citing instances showing unbroken routine practice of getting extra
judicial divorce. All these aspects were considered by the courts below in
proper perspective and upon such consideration, the courts below have come to a
correct and concurrent conclusion that the existence of such an alleged custom
was not proved by the appellants herein. The said finding cannot be termed
either defective or infirm, much less perverse. The same deserves no
interference.
15. Since it has been held supra, that the appellants had miserably
failed to substantiate their case that there was a custom in their community
under which extra judicial divorces are obtained, even if it is assumed that
there was an understanding between Ponniah and Sumathi at the intervention of
Panchayatdars which resulted in the execution of Ex.A7-divorce deed, the same
shall have no legal effect and it would not have the effect of dissolving the
marriage between them. On that score alone, the appellants’contention that
Sumathi was no longer the legally wedded wife of Ponniah should be
discountenanced. Even assuming that the appellants were able to show that there
was a custom prevailing in the said community, the appellants were not
successful in proving that actually there was a divorce. Customary divorce
cannot be equivated with a divorce deed. The appellants have produced Ex.A7 as
a divorce deed. The respondents 1 and 2 have categorically denied and disputed
the genuineness of Ex.A7-divorce deed and they have also contended that in fact
no such divorce ever took place. When such is the contention, the burden of
proving the same shall lie heavily on the appellants. The learned trial Judge
as well as the learned first appellate Judge, after analysing the evidence, came
to the conclusion that Ex.A7 could not be true. The courts below have also, on
appreciation of evidence, arrived at a conclusion that the oral or documentary
evidence adduced on the side of the appellants were not enough to substantiate
their contention that actually such an extra judicial divorce took place. When
the onus is heavily on the appellants, there is nothing wrong in the courts
below discussing the evidence adduced on the side of the appellants and give a
finding that the onus has not been discharged as the evidence is not
sufficient. In the case on hand, besides discussing the evidence adduced on the
side of the appellants, the courts below have also discussed the evidence
adduced by the first respondent herein as D.W.1 and arrived at a conclusion that
the above said plea of the appellants was not proved. This Court is not able to
find any defect or infirmity in the said finding. The said finding, being a
finding of fact, cannot be interferred with by the second appellate court unless
such a finding is proved to be perverse. As pointed out supra, there is no
defect or infirmity in the said finding of the courts below. Therefore, there is
no question of stamping it as perverse. Accordingly, this Court comes to the
conclusion that the attempt on the part of the appellants to project the same as
a substantial question of law has also ended in failure.
16. For all the reasons stated above, this Court comes to the conclusion
that the appellants have not proved that any substantial question of law is
involved in these second appeals and that hence both the second appeals are
bound to be dismissed at the stage of admission itself.
17. In the result,the Second Appeals are dismisse. No costs.
vsn
To
1. The Subordinate Judge,
Uthamapalayam.
2. The District Munsif,
Uthamapalayam.