IMPORTANT POINTS
(1) For Section 29(2) of Hindu Marriage Act, 1955 to be invoked, it has to be established by party relying on a custom that right of party was recognized by custom, to obtain dissolution of a Hindu marriage.
(2) Order IX Rule 9 of CPC debars plaintiff from bringing a fresh suit in respect of same cause of action in event of dismissal of suit for default. However, such a dismissal, ipso facto, would not take away right of plaintiff which was under consideration in suit.
(3) Apex Court does not have power to enact law but is bound by provisions of law as Parliament, in its wisdom, chose to promulgate.

JUDGMENT

Sabyasachi Bhattacharyya, J.—The present challenge has been preferred by Smt. Krishna Veni, the second wife of Sardar Natha Singh (since deceased), who was a freedom fighter getting pension from the Central Government under the Swatantra Sainik Samman Pension Scheme, 1980 till his demise on August 25, 1984. The petitioner, relying on a deed of declaration of divorce, purportedly executed by respondent no.11, the first wife and Sardar Natha Singh, the husband of the petitioner, claimed widow pension under the said Scheme, which was refused by a communication dated March 6, 2012 issued by the Assistant Secretary to the Government of West Bengal on the ground that such deed of divorce dated December 19, 1956 was not acceptable under the Hindu Marriage Act, 1955, in the absence of a decree for divorce obtained from a competent court of law.

2. Learned counsel submits that the petitioner and her deceased husband were governed by customs of Jat Sikhs, which permit such a divorce. As such, the petitioner claims that Section 29(2) of the Hindu Marriage Act, 1955 is attracted. Sub-section (2) of Section 29 of the Act provides that nothing contained in the Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of the Act.

3. It is further argued that respondent no.11 had initiated litigation against her husband, late Sardar Natha Singh, during the latter’s lifetime, for which payment of pension to respondent no.11 under the said Scheme was stopped by the authorities. In support of his contentions, learned counsel cites the judgment of Gurdit Singh vs. Mst. Angrez Kaur and others, reported at AIR 1968 SC 142, wherein the Supreme Court approved of the proposition that evidence could be accepted on prevalence of custom in the Jullundur District, to lend validity to such a divorce without following the provisions of divorce as stipulated in the Hindu Marriage Act, 1955.

4. Learned counsel next relies on Balwinder Singh vs. Smt. Gurpal Kaur, reported at AIR 1985 Delhi 14, for the proposition that a divorce deed executed between spouses and duly attested by a notary public, if sanctioned by the customs of the parties, would render the marriage dissolved.

5. Learned counsel for the petitioner next cites Doddi Appa Rao vs. General Manager, Telecom, Rajahmundry, reported at (2000) 1 CCC 146, wherein the Andhra Pradesh High Court held, on the basis of a decree passed by a civil court, that the marriage between the parties was dissolved as per caste custom and usage.

6. Counsel next relies on another judgment of the Andhra Pradesh High Court, reported at 1992 (3) ALT 733 [G. Thimma Reddy and others vs. The Special Tahsildar, Land], wherein the court held, on the basis of a registered deed and exclusive possession of the wife over the lands given to her under settlement, that a valid divorce had taken place as per the customs of the parties. The evidence of witnesses was also considered therein.

7. As such, it is argued by the petitioner that the respondent-authorities unlawfully withheld widow pension to the petitioner under the 1980 Scheme.

8. Learned counsel appearing for respondent nos.1, 2 and 4 submits that the petitioner’s claim for widow pension was rightly rejected, since the validity of the divorce by the deed of declaration, produced by the petitioner, was not established by the petitioner. Learned counsel relies on Subramani and others vs. M. Chandralekha, reported at (2005) 9 SCC 407, for the proposition that a custom, to be upheld, is to be pleaded and proved by the party relying on the same.

9. However, learned counsel advances a suggestion that the widow pension can be distributed equally between the first and second wives of the deceased freedom fighter if the court so directs.

10. For Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a cu