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High Court Of Madhya Pradesh
S. K. DUBEY, S. P. KHARE
SAVITRI DEVI - Appellant
Versus
MANORAMA BAI - Respondents
M. A. 685 Of 1996
Decided On : 04/28/1997
SUCCESSION CERTIFICATE - HINDU MARRIAGE ACT, 1955 - SECTION 5(1), 11, 16 - INDIAN SUCCESSION ACT, 1925 - SECTION 384 - EVIDENCE ACT - SECTION 114 - CUSTOMARY DIVORCE - VALIDITY OF SECOND MARRIAGE - LEGITIMACY OF CHILDREN - INTERPRETATION OF STATUTES.
Fact of the Case:
The appellant, Savitri Devi, challenged the grant of a succession certificate to the respondent, Manorama Bai, the second wife of their deceased husband, Bhagwan Singh Rai. The appellant claimed that she was the legally wedded wife of Bhagwan Singh Rai and that their marriage had not been dissolved by a customary divorce, as alleged by the respondent. The respondent claimed that there had been a customary divorce between the appellant and Bhagwan Singh Rai before he married her and that she and her three children were entitled to the succession certificate.
Finding of the Court:
The court found that there was no evidence to support the claim of a customary divorce between the appellant and Bhagwan Singh Rai. The court held that the marriage between the appellant and Bhagwan Singh Rai continued until his death and that the marriage between the respondent and Bhagwan Singh Rai was void under Section 11 of the Hindu Marriage Act, 1955. The court also held that the children of the respondent and Bhagwan Singh Rai were legitimate under Section 16 of the Hindu Marriage Act, 1955.
Issues: 1. Whether there was a customary divorce between the appellant and Bhagwan Singh Rai. 2. Whether the marriage between the respondent and Bhagwan Singh Rai was valid. 3. Whether the children of the respondent and Bhagwan Singh Rai were legitimate.
Ratio Decidendi: 1. The burden of proof is on the party claiming a customary divorce to prove the existence of the custom and that it is ancient, certain, reasonable, and not opposed to public policy. 2. A marriage solemnized during the subsistence of a previous marriage is void under Section 11 of the Hindu Marriage Act, 1955. 3. Children born from a void marriage are legitimate under Section 16 of the Hindu Marriage Act, 1955.
Final Decision: The court partly allowed the appeal and issued a succession certificate in favor of the appellant, Savitri Devi, and the three children of Bhagwan Singh Rai and the respondent, Manorama Bai. The court held that the respondent was not entitled to the succession certificate.
( 1 ) THIS is an appeal under Section 384 of the Indian Succession Act, 1925 by the first wife against the order granting succession certificate in favour of the second wife.
( 2 ) UNDISPUTED facts of the case are that appellant Savitri Devi was legally wedded wife of Bhagwan Singh Rai. This marriage had taken place in June, 1963. He remarried respondent No. 1 Manorama Bai on 6-11-1976. Respondent Nos. 2 to 4 are his children through Manorama Bai. He was employed in Railways as A. C. T. I. He died on 21-1-1993. The following amounts are payable to his heirs : @@114. htm@@ on his death Manorama Bai and her three children applied for succession certificate. That was registered as Case No. 61/93. Savitri Devi also applied for succession certificate at Tikamgarh. Her application was transferred to Jabalpur and it was registered as Case No. 1/96. These two cases were consolidated. After recording the evidence these cases were disposed of by the common order. It was held that there had been divorce according to the caste custom between Savitri Devi and Bhagwan Singh Rai before he married Manorama Bai. Therefore, the succession certificate was granted in favour of Manorama Bai and her three children. The claim of Savitri Devi was rejected.
( 3 ) IN this appeal the main question is whether there was divorce between Savitri Devi and Bhagwan Singh Rai according to caste custom. After hearing the learned counsel for both the sides and scrutinising the documentary and oral evidence on record we are of the opinion that the finding of the Court below regarding the proof of customary divorce is perverse. It is admitted that Savitri Devi was legally wedded wife of Bhagwan Singh Rai. There is a strong presumption of continuity of the marriage. This is by virtue of illustration (d) to Section 114 of the Evidence Act. Once a state of thing is shown to exist there is a presumption of its continuance. The Supreme Court has held in Ambika Prasad v. Ram Ekbal Rai, AIR 1966 SC 605 that the things once proved to have existed in a particular state are to be understood as persisting in continuing in that State, until the contrary is established by evidence either direct and circumstantial.
( 4 ) THE burden of proof is on Manorama Bai to establish dissolution of marital tie between Bhagwan Singh Rai and his first wife Savitri Devi. In the original petition filed by Manorama Bai there was no plea regarding the said divorce. After amendment of the application it was pleaded that there had been a customary divorce between the two. She relied upon the reply filed by Bhagwan Singh Rai in Criminal Case No. 27/77 of the Court of Chief Judicial Magistrate, Tikamgarh. That case w as registered on the basis of the petition under Section 125 of the Code of Criminal Procedure, 1973 by Savitri Devi claiming maintenance from her husband. Therefore, the statement made by Bhagwan Singh Rai in the reply cannot be said to be a proof of the divorce. On the contrary the claim of maintenance by Savitri Devi shows that she continued to assert that the marital bond subsists. There was an order allowing her petition and directing the husband to provide maintenance to her. This was on the premises that the marriage between the two continued.
( 5 ) IT is admitted that Bhagwan Singh Rai filed a petition under Section 10 of the Hindu Marriage Act against Savitri Devi ain 1977. That was a petition for judicial separation. It was registered as C. S. No. 20a of 1977. This petition was dismissed for default. Filing of this petition by the husband in the year 1977 for judicial separation runs counter to the hypothesis that the marriage tie had been dissolved according to the caste custom. In case there had been such a customary divorce there would have been no need to seek judicial separation through the Court. Savitri Devi continued to get maintenance allowance from her husband until his death. 5a. Manorama Bai (PW 1) has stated in her evidence that she did not know of
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