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2016 Supreme(Bom) 165
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Kashibai Namdeo Jadhav & Ors. - Appellants
Versus
Yamunabai & Ors. - Respondents
CIVIL APPLICATION NO.593 OF 2007
IN
SECOND APPEAL NO.108 OF 1993
Decided On : 25-2-2016
Advocate Appeared:
Mr.T.D. Deshmukh a/w Mr.Samrat Shinde for the appellants.
Mr.K.Y. Mandlik for the respondents.
Important Point – Party who seeks to produce secondary evidence must establish for non-production of primary evidence.
Headnote:(A) Hindu Marriage Act, 1955 – Section 13 – Divorce – Prevalence of customary divorce in community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by person propounding such custom – In absence of any proper pleadings on behalf of plaintiffs in plaint about then alleged existing custom and customary divorce in Maratha Community, plaintiffs could not have led any oral evidence on said issue.
(B) Hindu Marriage Act, 1955 – Section 13 – Divorce – Divorce can be granted either by a decree of Court or by custom prevailing in community continuously and uniformly observed and had obtained force of law amongst such community which was not unreasonable or opposed to public policy – Plea of divorce has to be raised very specifically and has to be proved strictly.
(C) Indian Evidence Act, 1872 – Section 65 – Secondary evidence – Pre-conditions for leading secondary evidence are that such original documents could not be produced by party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control – Party who seeks to produce secondary evidence must establish for non-production of primary evidence – Unless it is established that original document is lost or destroyed or is being deliberately withheld by party in respect of that document sought to be used, secondary evidence in respect of that document cannot be accepted.
Result – Second Appeal allowed.
By this second appeal filed under Section 100 of the Code of Civil Procedure, 1908, the appellants (original defendants) have impugned the order and judgment dated 3rd September 1992 passed by the III Additional District Judge, Solapur allowing the appeal filed by the original plaintiffs and setting aside the decree passed by the learned trial Judge dismissing the suit for a decree for partition and separate possession.
2. The original plaintiffs had filed a suit for declaration and perpetual injunction and in the alternative for partition and separate possession of share in certain agricultural lands. For the sake of convenience, the parties to the present proceedings are described as they were described in the proceedings before the learned trial Judge in the later part of the judgment. Some of the relevant facts for the purpose of deciding this second appeal are as under :-
3. The present dispute pertains to the lands 783, 789, 790/1, 792/2, 855, 906, 911/1, 911/2 and 777 all situated at Waphale, Taluka Mohol, District Solapur. It was the case of the plaintiffs that the suit lands were ancestral properties of late Namdeo Sambha Jadhav. It was alleged by the plaintiffs that the plaintiff no.1-Yamunabai was the legally wedded wife of Namdeo Sambha Jadhav. It was alleged that the plaintiff nos.2 to 4 are the children begotten to the said Yamunabai from Namdeo S. Jadhav. It was the case of the plaintiffs that the defendant no.1- Kashibai was the first wife of Namdeo S. Jadhav and divorce took place between Namdeo S. Jadhav and Kashibai, defendant no.1 herein on 7th September 1963 under an alleged Deed of Divorce. The defendant nos.2 and 3 are the children of Namdeo Sambha Jadhav begotten from his first wife Kashibai Namdeo Jadhav. It was the case of the plaintiffs that the defendant no.1 was suffering from black leprosy. In the result, Namdeo divorced the defendant no.1 in the year 1963 according to the customs prevailing in Maratha community to which the parties belonged to. It was the case of the plaintiffs that such type of divorce by mutual consent was permissible according to the customs prevailing in Maratha community at the relevant time.
4. It was the case of the plaintiffs that after taking divorce from the defendant no.1, the said Namdeo S. Jadhav married with plaintiff no.1 Yamunabai. According to the plaintiffs, there was a partition effected between the plaintiffs and the defendants and the lands described in para 1B of the plaint were given to the plaintiffs. Rest of the suit lands were given to the defendant nos.2 and 3. It was the case of the plaintiffs that since Kashibai had already taken divorce from the said Namdeo S. Jadhav, she could not get any share in the suit properties.
5. The plaintiffs accordingly filed a suit for declaration and perpetual injunction and in the alternative for partition and separate possession. The said suit was resisted by the defendants by filing a written statement. The defendants denied that the plaintiff no.1 was married with late Namdeo Jadhav and also denied that the plaintiff nos.2 to 4 were the legitimate children of late Namdeo Jadhav. The defendants also denied that there was any divorce between the defendant no.1 and late Namdeo Jadhav or that the plaintiffs lived with the said late Namdeo Jadhav. It was denied that the said Namdeo Jadhav effected any partition of the suit lands between the plaintiffs and defendants in or about 1967 or that the suit lands as described in paragraph 1(b) of the plaint were allotted by the said Namdeo Jadhav to the plaintiffs. The defendants also made various allegations about the character of the plaintiff no.1 in the written statement. Insofar as the plaintiff nos.2 to 4 are concerned, it was alleged that they were born to the plaintiff no1 from one Waman Chavan and some other person. The defendants denied that the plaintiffs had any interest of any nature whatsoever in the suit lands and opposed the reliefs prayed by the plaintiff
