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2003 Supreme(Gau) 428
IN THE HIGH COURT OF GAUHATI (AIZAWL BENCH)
S.K. KAR, J.
Smt. Germanthangi – Appellant
Vs.
F. Rokunga and Ors. – Respondent
R.S.A. No. 4 of 2000
Decided On: 12.09.2003
Advocate Appeared
For Appellant/Petitioner/Plaintiff: Michael and Zothankhuma, Advs.
For Respondents/Defendant: George Raju, Ricky Gurung and M. Guite, Advs.
The judgment emphasizes the importance of reappreciating evidence and providing reasons for decisions, especially in appellate Courts. It also highlights the interpretation of 'abandonment' under Mizo Customary Law and the jurisdictional principles under the Civil Procedure Code.
Headnote:
Abandonment - Mizo Customary Law - Lushai Hills Autonomous District (Administration of Justice) Rules, 1953 - Section 59 of Mizo Customary Law - Section 15 and 21 of Civil Procedure Code - Forum selection and jurisdiction - Appellate Court's duty to reappreciate evidence
Fact of the Case:
The appellant filed a case/complaint stating that her husband had deserted her by way of 'abandonment' as per the Mizo Customary Law and started living separately with another woman. The trial Court distributed the property in her favor, but the appellate Court reversed the decision, citing lack of jurisdiction and violation of rules. The appellate Court's judgment was cryptic and arbitrary.
Finding of the Court:
The trial Court's judgment was exhaustive and based on evidence, while the appellate Court failed to reappreciate the evidence and provide appropriate reasons for its decision. The appellate Court's judgment was deemed arbitrary and not worth the name of a judgment.
Issues: The main issue was whether the husband's actions constituted 'abandonment' as per Mizo Customary Law, and the jurisdiction of the trial Court and appellate Court were also in question.
Ratio Decidendi: The Mizo Customary Law defines 'abandonment' as the act of desertion, and the trial Court's decision was based on evidence and provisions of the customary law. The appellate Court failed to fulfill its duty to reappreciate the evidence and provide reasons for its decision.
Final Decision: The appeal was allowed, setting aside the appellate Court's judgment and restoring the trial Court's decision in its entirety. The appellant was entitled to her share in the property, and the decree would be charged upon the defendant's other properties if the allotted property had been sold or encumbered during the appeal/suit.
S.K. Kar, J.
1. This petition under Clause 3 of the Assam High Court (Jurisdiction over District Council Courts) Order, 1954 is preferred against the order dated 18-7-2000 passed by the District Council Court, Aizawl in Civil Appeal No. 17 of 1998.
2. The facts, in brief, (as per Memo of appeal) are as follows:--
The appellant Smt. Germanthangi and the respondent No. 1 were married on 15-3-1962 as per the Mizo Customary Law and out of the wedlock two sons and five daughters were born (subsequently impleaded persons, Respondents Nos. 2 and 3 are the two sons). The appellant filed a case/complaint on 11-3-98 before the Magistrate/Additional Sub-District Council Court stating that the Respondent No. 1 (her husband) had deserted her on 14-2-98 by way of 'abandonment' as per the Mizo Customary Law, and started living separately with one Smt. Doneihchuali. She prayed for the distribution of the properties in view of her desertion and the complaint (suit) was registered as Misc. Case No. 6/98.
3. The case was contested by her husband pleading that he had not married Smt. Doneihchuali but has accepted her as his mistress temporarily without divorcing the appellant and accordingly contended that no cause of action has arisen for distribution of the property.
4. The learned trial Court, on the basis of the pleadings, framed five issues and answered them holding that there is a case of 'abandonment' of wife and that the property belonging to the husband and wife were jointly acquired by them during the period of their conjugal life and finally passed a decree on 7-10-1998 distributing the property, allotting major share to the defendant.
5. Being aggrieved by the aforesaid judgment and decree of the Additional Sub-District Council Court (trial Court) Civil Appeal No. 17 of 1998 was preferred by the respondent herein before the District Council Court. Learned appellate District Council Court passed an order reversing the findings of the trial Court and accepting the pleas of the Respondent No. 1 by its judgment dated 18-7-2000. The appellate Court held that there was no case of 'abandonment' and jurisdiction was wrongly exercised by the Subordinate District Council Court because the plaintiff/complainant is duty bound to approach the Court of lowest grade, i.e.. Village Court but she straightway agitated next higher Court of Additional Sub-District Council.
6. I have heard learned counsel appearing on both sides, perused the impugned judgments and orders passed by the trial Court and the appellate Court and also considered the materials in the case records (which was called for in connection with this appeal) of the Court below. It appears that a counter-affidavit was presented by the Respondents Nos. 2 and 3 contending, inter-alia, that in spite of their best efforts appellant refused to live with her husband and children but preferred to approach the Court claiming properties without making Respondents Nos. 2 and 3 as parties and learned Court distributed properties without affording any opportunity to the Respondents Nos. 2 and 3 for which the judgment passed in Misc. Case No. 6/98 is not binding on these Respondents Nos. 2 and 3. That Respondent No. 1 purchased land on 5-3-96 at a price of Rs. 43,000/- on the strength of the sale deed and the same is being occupied by the Respondent No. 3. That all the properties mentioned in the impugned Judgment dated 7-10-98 were acquired by the Respondent No. 1 from his own earnings and he being the head of the family distributed some of moveable properties to his son and executed gift-deed on the same day. That main building at Champhai Venglai and Village field of wet rice cultivation at Midumphai were gifted to the Respondent No. 2 and another plot of land including building standing thereupon at Village Champhai Venglai has been kept for the Respondent No. 3 in supersession of the will made on 25-1-97 and accordingly Respondents Nos. 2 and 3 are occupying the land so given to them and accordi
