IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 362 of 2023 ========================================================== NALINIBEN D/O JAYNATILAL RANCHHODBHAI SUTHAR AND W/O NAYANKUMAR DEVENDRAKUMAR SUTHAR Versus NAYANKUMAR DEVEDRAPRASHAD SUTHAR ==========================================================

Appearance:

MR JINESH H KAPADIA(5601) for the Appellant(s) No. 1 for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI Date : 17/01/2024

ORAL ORDER

1. Advocate Mr. Jinesh H.Kapadia for the appellant submits that the wife had filed Regular Civil Suit No.2 of 2018 before the Court at Balasinor, praying for declaration that the deed dated 06.03.2017 executed before the Notary was not binding on the plaintiff, since the said document noted as divorce deed, was under threat and coercion.

2. Advocate Mr. Kapadia submitted that the parties are governed by Hindu Marriage Act, 1955 and to claim an exemption, the contesting party has to plead and prove the custom prevailing in the community of both the parties for such customary divorce.

3. Advocate Mr. Kapadia relying on the judgment of Yamanaji H.Jadhav Vs. Nirmala, reported in (2002) 2 SCC 637, submitted that the said principle of law has been expounded in the judgment, where the wife had filed a suit for a declaration that she had executed a deed of divorce under threat and coercion, and has made a prayer for its cancellation, the trial Court without framing an issue as to whether custom permitting divorce by deed existed in the community to which party belongs, and whether such existence of custom has been accepted for a long period had decided the suit. Advocate Mr. Kapadia submitted that it was necessary for the husband to plead and prove, but had failed to do so; in spite of that, both the courts have dismissed the relief prayed for by the appellant, plaintiff to the suit.

4. In view of the submissions and the judgment, Admit.

5. The following questions of law are raised:

(A) Whether the judgment of both the courts are perverse being contrary to the evidence and pleading?

(B) Whether both the courts have erred in not holding that Exh.21 and 22 are against the provisions of Hindu Marriage Act, 1955?

(C) Whether both the courts have erred in not considering the provisions of sections 101, 102 and 103 of Indian Evidence Act to appreciate the factum of onus of proof and burden of proof?

(D) Whether both the courts have erred in not considering that Exh.21 and 22 is not enforceable in law and inexecutable since the customary form of divorce has not been pleaded and proved by the contesting party?

(GITA GOPI,J)

Pankaj