The judgment emphasizes the need to specifically plead and establish the prevalence of customary divorce contrary to general law of divorce, as per section 29(2) of the Hindu Marriage Act.

ORDER :

This petition has been filed under section 482 of the Criminal Procedure Code against the impugned order dated 4-8-2011 passed by the IInd Additional Sessions Judge, East Nimar Khandwa, District Khandwa in Criminal Revision No. 112/2010 arising out of the order dated 12-10-2010 passed in Misc.Cr.C No. 80/2009 passed by the Judicial Magistrate First Class, Khandwa whereby the application under section 125 of the Cr.PC for maintenance has been rejected.

2. This petition has been filed on the ground that the finding of the learned both Courts below are contrary to law and perverse while the applicant has proved that she is the wife of the respondent No. 2 who has deserted her without any reason and re-married with another woman without paying any amount as maintenance to the applicant, who has no means of her livelihood. Therefore, the impugned orders be set aside and respondent No. 2 be directed to pay Rs.5000/- per month as a maintenance as the respondent No. 2 have sufficient means and in as much as he is working in the Bank and is getting a handsome salary.

3. On behalf of the respondent No. 2 it is submitted that the applicant is not the wife of the respondent No. 2 as their marriage was dissolved as per the custom of the caste they belonged and thereafter the applicant remarried with one Puranlal, who has also left her. Therefore she is not entitled to any amount as maintenance under section 125 of the Criminal Procedure Code from the applicant. The findings of the learned lower Courts below are in accordance with the law and concurrent findings of the facts which are not perverse cannot be interfered with by this Court in exercising of the power under section 482 of the Cr.P.C, hence the petition be dismissed.

4. Having considered the contentions of the learned counsel for the parties and on perusal of the record, it is found that it is concurrent findings of the learned both Courts below that the marriage was dissolved between the applicant and the respondent No. 2 near about 25 years before in the caste panchayat as per custom of the caste they belonged and thereafter the applicant remarried with one Puranlal, who has also left her. The aforesaid findings on perusal of the record are not found to be contrary to law or it cannot be said that they are perverse as learned both the Courts below have analyzed all the material available in the evidence adduced by the parties and rightly came to the aforesaid conclusion and in such circumstances, the concurrent findings of both the Courts below do not require any interference with and it is trite law that in such circumstances the High Court should restrain to interfere with the factual findings recorded by the both Courts below.

5. Now the legal question is whether parties governed by the Hindu Marriage Act have a right to dissolve the marriage through caste panchayat as there is custom in the caste to dissolve marriage through caste panchayat or decree under section 13 of the Hindu Marriage Act is must. This legal question is now no more res integra as Hon’ble the Apex Court in the case of Subramani and others vs. M Chandralekha, (2005) 9 SCC 407, has held in para 9 and 10 which are as under :—

“9. It is not disputed before us that as per Hindu law divorce was not recognized as a means to put an end to marriage which was always considered to be a sacrament with only exception where it is recognised by custom. Hindus after the coming into force of the Hindu Marriage Act, 1955 (for short “the Act”) can seek to put an end to their marriage by either obtaining a declaration that the marriage between them was a nullity on the grounds specified in section 11 or to dissolve the marriage between them on any of the grounds mentioned in section 13 of the Act. section 29 of the Act saves the rights recognized by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnised before or after commencement of the Act. Section 29(2) of the Act reads :—

“2