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IN THE HIGH COURT OF BOMBAY
ARUN LAXMANRAO NAVALKAR
Versus
MEENA ARUN NAVALKAR
Decided on, APRIL 12, 2006
Held, that the relationship between the parties being admitted, sapinda relationship need not be proved by the husband and it is for the wife to prove that there is a custom allowing marriage s amongst sapindas in their community. Such custom must be shown to exist and continue to exist before and after the parties marriage. It must further be shown to be accepted by the community Section 5(v) in fact shows that sapinda relationship is the specific ground for voidability of marriage. Hence, it is not for the party seeking voidability to show lack of customs. The wife has shown at best the marriage of 2 couples in their community within sapinda relationship. The years of their marriage are not shows hence, the span of time to show the existence of the custom is not known. The custom propounded by her therefore, cannot be taken to have the attribute of either continuity or longevity, since the lapse of time of years between the marriages of these parties is not shown. The factum of uninterruptedness of the custom is also not made out. Aside from showing the factum of the marriages between 2 parties in spinda relationship, the fact that it was accepted by the community as a whole is also not made out by a positive assertion. Thus, the specific custom propounded by her that spinda relationship in marriage is allowed and accepted in her community is not proved. Therefore, the trial Judge has correctly considered the factum of the custom, if any, of marriages is sapinda relationship in the community of the husband and the wife upon the evidence rightly led by the wife to prove such custom. He correctly found it inadequate and insufficient of the standard of proof required. The single Judge, however, incorrectly concluded that the very onus of proof that there was no such custom in their community was on the husband. The marriage between the parties is declared null and void. Claim of the husband for divorce on the ground of cruelty, desertion and schizophrenia, need not be adverted to as the marriage between the parties being itself void under section read with Section 5(v) of the Hindu Marriage Act. AIR 1975 SC 733 : AIR 1964 SC 118 and AIR 1968 SC 1299, Ref.
ROSHAN DALVI, J.
( 1 ) THE parties are husband and wife. Their marital relationship began in January, 1981 and ended in July, 1981 when they separated. During the time that they were together they lived at Girgaum which was their matrimonial home being a family bungalow of ground plus 2 upper floors. It was a joint family property in which they lived with 2 brothers and 2 cousins of husband. They used 2 rooms and a bath on the second floor, and the common kitchen (mess) and hall for visitors. This lis began in 1984 and has left the parties as they were 22 years ago.
( 2 ) THE wife separated and sued the husband for maintenance. The husband sued her for nullity of their marriage under section 11 of the Hindu Marriage Act on the ground of their relationship being sapinda relationship, in the alternative for divorce on the ground of cruelty, desertion and schizophrenia under section 13 (l) (ia) and 13 (l) (iii) of the Hindu Marriage Act. The husband also sued for an injunction, restraining the wife from coming into the matrimonial home which was his joint family property.
( 3 ) THE Additional Principal Judge of the Bombay City Civil and Sessions court decreed the husbands petition being MJ Petition No. 980 of 1984 on 29th january, 1988. He declared the marriage to be null and void and granted him a decree of divorce on the ground of cruelty as well as an injunction restraining her from entering upon the joint family property of the husband. However, he directed him to pay costs of the Petition fixed at Rs. 3000 / -.
( 4 ) THE First Appeal from the said judgment being F. A. No. 1464 of 1988 came to be disposed of by the learned Single Judge by his judgment and order dated 15th March, 1991 setting aside the decree of nullity of marriage as well as the decree of divorce as also the order of injunction and instead granting a decree of judicial separation under section 10 of the Hindu Marriage Act. The order directed the husband to pay the costs of the Appeal fixed at Rs. 5000/- in addition to the costs granted by the trial Court.
( 5 ) BOTH the husband and the wife have been aggrieved by the said order and have filed their separate appeals challenging part of the said order in First appeal passed by the learned Single Judge. The husband has challenged the judgment setting aside the decree of nullity of his marriage, the decree of divorce as also the order of injunction. The wife has challenged the decree of judicial separation which was not even claimed by her. The above L. P. As. are accordingly filed by both the husband and the wife.
( 6 ) IT would be apt to first consider the decree of nullity claimed by the husband under section 11 of the Hindu Marriage Act. The relationship of the parties is admitted. They come from a common ancestor one Moroba who had one son Laxman and one daughter Champubai. The husband is the son of laxman. The wife is the daughter of Champubais son. Upon this admitted relationship the husband claims that they are sapindas of one another. The wife claims that they are not. The sapinda relationship defined under section 3 (f) and the prohibited relationship under section 3 (a) of Hindu Marriage Act runs thus :"3. Definitions - In this Act, unless the context otherwise requires, - "3. (f) (i) "sapinda relationship " with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation; (ii) two persons are said to be "sapindas" of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;
( 7 ) IN section 3 (f) of the Hindu Marriage Act read with prohibited relationship under section 3 (a) of the Hindu Marriage Act
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