FAO No. M-5 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. M-5 of 2009 (O&M) Date of decision: 02.09.2009 Smt. Kuldip Kaur ....Appellant Versus Amarjit Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Harsh Bunger, Advocate, for the appellant. Mr. G.S. Nagra, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) CMs No. 20605-06-CII of 2009 Dismissed as withdrawn. FAO No. M-5 of 2009 and CM No. 474-CII of 2009 This appeal is directed against the order dated 26.9.2008 passed by the learned District Judge, Hoshiarpur, vide which the application moved by the appellant, under Section 9 of the Hindu Marriage Act, for decree of restitution of conjugal rights, has been ordered to be dismissed. The appellant-wife had moved a petition seeking decree for restitution of conjugal rights, on the ground that she was married to the respondent on 2.10.2000 at village Dhade Saba Mohar Singh, Tehsil and District Hoshiarpur, according to Sikh rites. She specifically pleaded, FAO No. M-5 of 2009 (O&M) -2- that prior to the present marriage, the appellant was married and her marriage had been dissolved by mutual consent, and divorce deed was executed between the appellant and her earlier husband. It was pleaded, that this fact was known to the respondent-husband. On notice, the respondent-husband appeared and filed written reply, taking preliminary objection, that the petition was not maintainable on account of the fact, that he had filed a petition under Section 11 of the Hindu Marriage Act, claiming therein that first marriage of the appellant with Gurbhagwant Singh son of Hari Singh was existing at the time of her marriage with the respondent, and this fact was concealed by the appellant. It was also the case set up that second marriage of the appellant with the respondent is vitiated by fraud committed on him and his parents. On merit, factum of marriage was not denied, however, it was claimed to be nullity. The learned Court below decided issue No. 1 in favour of the respondent, by holding that in view of the fact that the marriage between the parties was nullity, it cannot be said that the respondent-husband had withdrawn from the society of the appellant, without reasonable dispute. On issue No. 2, the learned Court again held, that as the marriage between the parties was not valid, therefore, no decree of restitution of conjugal rights could be passed. The petition was dismissed. The learned counsel for the appellant has challenged the order passed by the learned trial Court, on the plea that the learned trial Court failed to frame the proper issue as to whether the divorce obtained by the FAO No. M-5 of 2009 (O&M) -3- appellant was protected under the custom. In support of this contention, the learned counsel for the appellant contended, that in the case, the appellant had specifically pleaded that she was earlier married with Gurbhagwant Singh, and they got divorce with mutual consent in presence of the panchayat. In support of this evidence was also led to prove that there existed the custom between the Jats of Jalandhar District, to have divorce by mutual consent, in presence of panchayat. The learned counsel for the appellant further referred to the statement of RW-4, produced by the respondent-husband i.e. previous husband of the appellant, who categorically stated, that there was custom in their community for getting divorce in the panchayat. The learned counsel for the appellant also relied upon the judgment of the Hon'ble Supreme Court in Gurdit Singh Vs. Mst. Angrej Kaur and others, AIR 1968 Supreme Court 142, wherein the Hon'ble Supreme Court was pleased to lay down as under: - “A custom exists among the Hindu Jats of the Jullundur district which permits a valid divorce by a husband of his wife which dissolves the marriage. On the dissolution of such marriage the divorced wife can enter into a valid marriage with a second husband in the lifetime of the first husband. (1962) 64 Pun LR 1179, Affirmed.” It may further be noticed, that the respondent-husband had withdrawn the petition filed under Section 11 of the Hindu Marriage Act, claiming the marriage to be nullity. Learned counsel for the respondent, however, contended that the learned trial Court was right in rejecting the petition, as in order to FAO No. M-5 of 2009 (O&M) -4- succeed on custom, it was necessary for the appellant to have pleaded the custom and prove the same by way of evidence. In absence of any pleading, it was not open to the appellant to take the plea of custom in support of divorce, to be valid. It was also contended by the learned counsel for the respondent, that the appellant cannot draw any benefit from the statement of RW-4, as the appellant was to stand on her own legs and could not take benefit of the weakness in the evidence of the respondent. Though in the event of failure to prove custom, there would be no other alternative, but to declare the second marriage to be nullity, but in case the appellant successfully proves the custom, then the divorce in panchayat would be valid, which would entitle her to decree of restitution of conjugal rights. For the reasons stated above, the appeal is allowed, the judgment and decree passed by the learned trial Court is set aside, the case is remanded back and the learned trial Court with a direction to frame an issue as to “whether there is custom in the community of the parties to seek divorce by mutual consent before the panchayat”, and thereafter permit the parties to lead evidence thereon. The parties through their counsel are directed to appear before the learned trial Court on 5.10.2009. Appeal allowed. (Vinod K. Sharma) Judge September 02, 2009 R.S.