JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. Present appeal is against the judgment and decree dated13/05/2016 passed by the learned family court in Civil Suit No.218-A/14whereby an application filed by the husband seeking divorce wasdismissed.

2. Brief facts of this case are that the parties were married on 15/05/1982. A dispute arose in between the parties in 1990 and eventually a deed of divorce as per the custom was executed on 28/01/1994. It is further case of the appellant that since such customary divorce was not recognized by the employer i.e. wherein both the appellant and the respondent were working, as such the husband filed an application under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act of 1955') on 14/11/1995. The respondent/wife remained ex-parte and an ex-parte decree of divorce was passed on 20/03/1996. Subsequently, the appellant performed second marriage on 2nd July, 2001 and thereafter an application was filed under Order 9 Rule 13 of CPC to set aside the earlier ex-parte decree dated 20/03/1996.

3. The learned family court set aside the ex-parte decree on 15/03/2003. Thereafter, the initial suit continued and eventually it was dismissed by the impugned order dated 13/05/2016. It is further case of the appellant/husband that the wife filed a civil suit No.3-A/2018 for declaration with a prayer that the customary divorce which was obtained on 28/01/1994 is bad in law and would not be operative, the suit was eventually dismissed and however the wife succeeded in the appeal by judgment dated 26/11/2019. In such judgment the appellate court observed that since the appeal pertaining to same issue is pending before the High Court any finding given by the High Court would prevail over the finding of the appellate court.

4. The contention of the wife was that her signature was obtained on a blank paper by the husband on the pretext of purchasing a land and the wife believing the version of husband had signed those papers. It is further stated that the husband committed fraud and hatched conspiracy in preparing the deed of divorce, therefore the deed of divorce would not be applicable to the parties. The learned family court after evaluating the facts and evidence dismissed the suit. Hence, this appeal.

5. Learned counsel for the appellant would submit that as per the statement of the wife herself she admitted the custom of the like nature to get separated by custom name “Chod-Chutti” is operative in the family and society and therefore such deed was executed. He would further submit that the statement of the mother of the respondent/wife would also show that she admitted the fact that such custom of divorce by “Chod-Chhuttti” is prevailing in the society which is not been rebutted. Consequently, once the custom is admitted then the other provision of the Act of 1955 would not be applicable as such nature of custom would be saved under Section 29(2) of the Act of 1955. He would further submit that the finding of the learned family court is that the signature on document of divorce was admitted as such the burden would be shifted to the wife to establish that the signature were obtained on a blank paper. He would further submit that the finding of the learned family court to the effect that the signature of wife were not obtained by fraud on document of divorce Ex.P-1 and such finding has not been assailed by the wife by way of a cross objection under Order 41 Rule 22 of CPC. In a result, those finding would be binding on the parties. He would further submit that the learned family court travelled beyond the evidence and therefore came to a finding of dismissal without considering the fact that apart from the divorce the ground of desertion also existed. Therefore appeal may be allowed and judgment and decree of the trial court be set aside.

6. Per contra, learned counsel for the respondent would submit that as per the evidence of the plaintiff/husband himself it would show that he was not a me