IMPORTANT POINT
Prevalence of customary divorce in community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom.

Headnote:HINDU LAW-Hindu Marriage Act, 1955-Section 29-Customary divorce-Suit for partition filed by widow claiming that her husband had share in the joint property-Parties belonged to Vellala Gounder Community-Defendants-appellant contended that marriage between plaintiff and her husband had been dissolved as per dissolution deed and respondent thus had no right to seek partition-Trial Court and Ist appellate Court found respondent-plaintiff entitled to share in property but dismissed suit on ground that marriage between plaintiff and her husband stood dissolved under custom-High Court set aside the judgment in appeal and decreed the suit-Appeal-Prevalence of customary divorce in community must be specifically pleaded and established by person propounding such custom-Defendant-appellant did not plead that in their community marriage could be dissolved under custom-Two witnesses examined on the point did not prove prevalence of any such custom-No interference was warranted.
       Held : It is not disputed before us that as per Hindu Law 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. 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 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:
       "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 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. (Paras 9 and 10)
       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 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. (Para 13)

JUDGMENT

Bhan, J.-This appeal by grant of leave has been filed by the 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.

2. 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 3 are the wife and daughter of Late Natessa Muthu. Plaintiff-respondent M. Chandralekha is the wife of Kandasamy.

3. According to the plaintiff-respondent (hereafter referred to as the "respondent") there was a partition in the family in the year 1968 between 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 Kandasamy.

4. Respondent No.1 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 C and D and also claimed mesne profits. It was pleaded that she being the wife of Kandasamy was entitled to the share of Kandasamy in the schedule properties. She claimed 1/2 share in A , C and D schedule properties and 1/3rd share in B schedule property. That differences arose 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, 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. B-1 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 averred that parties belonged to Vellala Gounder Community and no custom was prevalent in their community to dissolve the marriage under custom. 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.

5. Defendants contested the suit. Subramani filed the written statement 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 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. 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 respo

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2004 Supreme(SC) 1458

IMPORTANT POINTPrevalence of customary divorce in community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom.

Cases Referred (1)

IMPORTANT POINT
Prevalence of customary divorce in community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom.