1997 Supreme(Del) 878

High Court Of Delhi
SHARAD DUTT - Appellant
Versus
KIRAN - Respondent
First Appeal Order 4 of 1995
Decided On : 11/01/1997

The custom/usage contended by the respondent is to be tested on the touchstone of the definition of custom/usage as given in Section 3(a) of the Act.

Headnote:

HINDU MARRIAGE ACT - SECTION 11 - NULLITY OF MARRIAGE - CUSTOM/USAGE - REQUIREMENTS - OPINION EVIDENCE - LACHES - CRUELTY.

Fact of the Case:

The parties to this appeal got married on 9.12.1984. Appellant's mother is sister of respondent's father. They are thus, admittedly, first cousins within the definition of "prohibited degrees of relationship" given in Clause (g) of Section 3 of the Act. The fore-fathers of the parties were residing in District Jhang (now in Pakistan) which had a population of Hindus, Muslims besides other communities. Among the Hindus, there were Brahmins, called Panch-Jatia Brahmins consisting of five sub-castes, namely, Jaitely, Trikhas, Mohlas, Jhingan and Kumarias. The appellant is Jhingan and the respondent was Jaitley before marriage. After marriage, the appellant and the respondent lived as husband and wife in appellant's house for some time and the respondent, admittedly, left the matrimonial home on 24.6.1985. Since then the parties have never lived together and consequently did not discharge their martial obligations to each other.

Finding of the Court:

1. The respondent could not prove that in any period prior to the partition of the country in 1947 there had been any rule amongst the Panch-Jatia Brahmins of District Jhang permitting marriage between first cousins. 2. The petition of the appellant could not have been rejected by the Court below on the grounds of laches. 3. The appellant could not prove cruelty as alleged.

Issues: 1. Whether the marriage between the parties can sustain because of any custom/usage between the parties ? If not; whether the appellant is entitled to annulment of the marriage with the respondent under Section II of the Act? 2. Whether the petition of the appellant before the Trial Court could be rejected on the grounds of laches ? 3. Whether the appellant, in the alternative, is entitled to get divorce under Section 13 of the Act on the grounds of cruelty allegedly committed by the respondent.

Ratio Decidendi: 1. The custom/usage contended by the respondent is to be tested on the touchstone of the definition of custom/usage as given in Section 3(a) of the Act. As per reading of the definition it is to be found that there are five ingredients of the aforesaid definition, namely, (i) it has been continuously and uniformly observed for a long time; (ii) it has obtained the force of law among Hindus in any local area, tribe, community, group or family; (iii) it is certain; (iv) it is not unreasonable or opposed to public policy; and (v) in case of a rule applicable only to a family, it has not been discontinued by the family. 2. The statements of witnesses on whom reliance has been placed by the learned Counsel for the respondent to prove the alleged custom do not show that they made the statements on the basis of their personal knowledge based on certain facts about the alleged custom. "these witnesses do not give the source/sources from which they gathered the relevant information about the existence of the contended custom/usage. No grounds have been given by them on the basis of which the opinion is based. To prove a custom in the present case, the burden was on the respondent to prove that the alleged custom was being followed continuously, uniformly and since long before 1947 in District Jhang (now in Pakistan ). None of these witnesses have stated that they had themselves known the alleged custom having been continuously and uniformly followed from before 1947. Nor they say that they have derived knowledge from any person/persons, who were alive prior to 1947. 3. The facts of the case, as already stated, are these. The marriage between the parties was solemnised on 9.12.1984. The respondent left the matrimonial home on 24.6.1985 as a result of some lack of harmony between the parties-On 30.6.1985 respondent's brother wrote to the eppellant "we will discuss the matter indetail when I visit Delhi but if you feel nothing much can be done about the whole thing then I will suggest, let us finish the matter as it is rather mud slinging and causing each other and should avoid long litigation and settle amicably in the interest of both the parties". The respondent made a complaint to the Indian Women Welfare Association by her letter dated 24.6.1986. As out of Court agreement reached between the parties on 3.4.1987 in the terms, namely, "aaj SANSTHA KE SADASYON AUR NIMINLIKHIT SADASYON KE SAAMNE KIRAN APNE DAHEJ KA SARA SAAMAAN LEKARJA RAHI HAI. 14000 RUPAIY (CHAUDHA HAZAAR RUPAIY) KA CHEQUE SANSTHA KE NAAM SE DIYA JA RAHA HAI, JO KIRAN KO TALAQ KE SAMEY DE DIYA JAYAIGA. AB KISI BHI TARAH KA LEN DEN BAKI NAHIN RAHA AUR NAHI KOI VYAKTI KISI TARAH KA KOI CASE KARENGE. STRIDHAN SAHIT SAB KUCHH VAPIS LE LIYA GAYA HAI. " 4. I have carefully considered the evidence on record and I am of the view that considering the nature of the proceedings, it cannot be said that those acts of the respondent could be termed as mental cruelty inflicted on the appellant. When a party to a marriage files complaint and goes into litigation and is having the benefit of legal advice the litigation is bound to be taken to its logical end even though the party has to go to the Supreme Court. No doubt such litigation leads to expenditure and labour but it may not amount to mental cruelty.

Final Decision: The appeal is partly allowed. The marriage between the parties is annulled under Section 11 of the Act. The rest of the petition is dismissed.