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1999 Supreme(Bom) 698
IN THE HIGH COURT OF BOMBAY
Parkar S.S., J.
Jairam Somaji More.... Petitioner.
Versus
Sindhubai Jairam More others.... Respondents.
Criminal Writ Petition No. 790 of 1992, decided on 14-9-1999.
Advocates appeared :
V. Z. Kankaria, for petitioner.
K.S. Patil h/f Pramod N. Joshi, for respondents Nos. 1 2.
Ms. R.P. Sabarwal A.P.P., for State.
Headnote:Article 227-Criminal Procedure Code (2 of 1974), Sections 125 and 397-Unless it is shown that Sessions Courts reasoning is perverse or has no foundation in evidence High Court would not in exercise of powers under Article 227 reappreciate evidence.
Section 29(2)-Deed of divorce =Marriage between parties cannot be dissolved by deed of divorce unless customary divorce between parties was pleaded and proved.-Once the parties are married, the said marriage cannot be dissolved except by decree of divorce passed under the provisions of the Hindu Marriage Act, 1955. The said Act also provides for divorce by mutual consent under Section 13-B. After the coming into force of the Hindu Marriage Act, 1955, the parties to whom the said Act is applicable are governed by the provisions of the said Act. By Section 4 of the said Act any custom or usage prevalent or in force immediately before the commencement of that Act shall cease to have any effect after the Act of 1955 came into force. Section 29(2) of the Act saves the customary right. However, it is well settled that the custom also cannot be only pleaded but it has to be proved that the parties were entitled for a customary divorce. In the aforesaid state of law the deed of divorce dated 4.12.1979 could not have the effect so as to dissolve the marriage between the parties unless customary divorce between the parties was pleaded and proved which was not the case here. It cannot be gainsaid that unless and until the marriage between the petitioner and the respondent wife was dissolved legally the husband had no right to contract a second marriage and since the earlier divorce dated 4.12.1979 was not recognised by law, the parties continued to be under marital bond.
2. The petitioner and the respondent No. 1 were married sometime in the year 1970 as per the Hindu Law. They cohabited until 4th December, 1979, when they separated by a registered Deed of Divorce which is at Exhibit 22. From the said marriage admittedly a daughter was born who is residing with the petitioner-husband. It is the case of respondent-wife that the petitioner repented for the separation which was effected between them by the Deed of Divorce dated 4-12-1979 and, therefore, there was reunion between them and they entered into an agreement (Exhibit 19) executed on 18th November, 1980. The wife stayed with the petitioner for a period of 1 and ½ years after the said reunion and thereafter she was driven away from the matrimonial home by the petitioner and hence again went back to her father's house in village Dulgaon, Tal. Yeola, Dist. Nashik. Their matrimonial house was in village Thergaon, Tal. Niphad, Dist. Nashik. During her second phase of cohabitation with her husband, she had conceived and given birth to a male child by name Bhausaheb who is respondent No. 2 to this petition. After she was driven out from the matrimonial house the petitioner did not maintain the respondents i.e. wife and son Bhausaheb and, therefore, she filed Criminal Misc. Application No. 62 of 1985 in the Court of JMFC, Yeola, on 23rd April, 1985 claiming maintenance for herself and son.
3. The said application was opposed by the petitioner-husband. Parties had led evidence before the trial Court. On behalf of the wife she had examined herself and two witnesses i.e. her own father by name Kashinath as AW-2 and one Bhikaji Sathe as AW-3 who was an independent witness. On behalf of the petitioner only he himself was examined.
4. After considering the evidence on record the trial Magistrate rejected the application on the ground that the divorce had taken place between the parties and, therefore, unless she proves subsequent reunion as wife, she was not entitled for maintenance. Similarly son Bhausaheb was not granted maintenance on the ground that the paternity from the petitioner was not proved. The said application, therefore, was dismissed by the judgment and order of the learned JMFC dated 31st August, 1989.
5. The wife took the matter to the Sessions Court by filing Criminal Revision Application No. 28 of 1990. The said revision application was heard by the learned Addl. Sessions Judge, Nashik, who after considering the entire evidence on record allowed the revision application and also the application for maintenance by granting to the wife maintenance at the rate of Rs. 75/- per month and Rs. 50/- per month to the son Bhausaheb from the date of the original application i.e. 23rd April, 1985. The said order is impugned in the present petition by the petitioner-husband.
6. It may be mentioned at this juncture that when this matter had reached for hearing before Dr. Justice Partibha Upasani on 3rd May, 1989, the Court had made suggestion to undertake DNA test by the parties since the husband had disowned the paternity of the child. Mr. Kankaria for the petitioner had readily agreed to the suggestion while Mr. Patil, Advocate for respondent-wife had taken time to consult his client. Today when the matter reached for hearing both the sides agree to undertake the DNA test of the child for the purpose of ascertaining the paternity of the child from the petitioner-husband. However, none of them was agreeable to bear the cost of the DNA test and, therefore, the matter is now today on the merits as per the evidence on record.
7. Mr. Kankaria, learned Advocate appearing for the petitioner contended that the agreement dated 18-11-1980, on which date it was alleged that the parties had reunited and stayed together, is not proved. He submitted that unless the said document is pro
