CRA 138/2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 138/2010 WITH CIVIL APPLICATION NO. 16909/2010 Mandakini w/o Shridhar Bhagat, Age : 37 years, Occu. Household, R/o Dhangar Pimpri, Tq. Ambad Dist. Jalna. ...Applicant. Versus 1 Alka w/o Shridhar Bhagat, Age : 31 years, Occu. Household, R/o HUDCO Colony, Quarter No. 79, Near National High Way, Taluka Bhusawal, Dist. Jalgaon. 2 Sakshat s/o Shridhar Bhagat, Age : 6 years (Minor), Occu. Education, Under the Guardianship of hi mother i.e. respondent No.1 Alka Bhagat, R/o HUDCO Colony, Quarter No. 79, Near National High Way, Taluka Bhusawal, Dist. Jalgaon. 3 Pralhad s/o Kashinath Bhagat, Age : 56 years, Occu. Agriculture, 4 Parmeshwar s/o Kashinath Bhagat, Age : 33 years, Occu. Agriculture, 5 Dnyaneshwar s/o Kashinath Bhagat, Age : 51 years, Occu. Household. 6 Sau. Narmadabai w/o Kashinath Bhagat, Age : 66 years Occu. Household, 7 Dwarkabai w/o Sheshrao Balap, Age : 46 years, Occu. Household, All r/o HUDCO Colony, Quarter No. 79, Near National High Way, Taluka Bhusawal, Dist. Jalgaon. 8 Lellabai w/o Namdeo Rewgule, Age : 47 years, Occu. Household, CRA 138/2010 2 9 Nirmalabai Atmaram Jaygude, Age : 31 years, Occu. Household. Both R/o Shelodi, Post. Shelsur, Tq. Chikhali, Dist. Buldhana. ....Respondents. Mr. R.M. Deshmukh, Advocate for applicant. Mr. B.R. Kedar, Advocate for respondent No.1. Respondent No.2 served but absent. Mr. K.M. Nagarkar, Advocate for respondents No. 3 to 9. CORAM : A.V. NIRGUDE, J. Date : 7th January, 2011. ORAL JUDGMENT:- 1 The revision applicant is challenging the concurrent finding of the courts below granting issuance of succession certificate to the respondent No.1, in respect of pension, gratuity etc. of one Shridhar who happened to be the husband of both these ladies. It is common ground that Shridhar married the applicant Mandakini and it is also common ground that Shridhar and Mandakini had executed a document on 22/03/2000 and thereby indicated that they had obtained divorce from each other as per custom of their caste. It is further common ground that thereafter, Shridhar started residing with the respondent No.1 and this couple begotten a child -the respondent No.2. The other respondents are mother and other relatives of Shridhar but they are not contesting the respondent No.1’s claim of succession certificate. 2. The respondent No.1 made the application (for succession certificate) saying that she is legally wedded wife of Shridhar and her son -the respondent No.2 was his legitimate child. She further stated CRA 138/2010 3 that the applicant was Shridhar’s previous wife and asserted further that Shridhar had lawfully divorced her. 3. The applicant opposed the application saying that Shridhar never divorced her and that Shridhar’s so called marriage with the respondent No.1 was not lawful although Shridhar was his father. At the trial stage, the main bone of contention between the parties was whether the deed of divorce was executed on 22/03/2000 and secondly, whether the deed effected valid divorce between Shridhar and the applicant. 4. The learned judge of the trial Court at one place observed in his judgment that the marriage between Shridhar and the applicant could not have been dissolved by the deed of divorce though it is proved to have been executed. Elsewhere he observed that since the applicant did not enter witness box and since she was party to the said document, she was estopped from denying factum of the execution of the deed. The learned judge of the appeal Court also recorded similar finding and upheld the order of the trial Court for issuance of the succession certificate in favour of the respondent No.1. After going through the evidence and the judgments of the Courts below, following point arose for my consideration in this revision. Whether the respondent No. 1 has proved that Shridhar had lawfully divorced the applicant ? The answer to this, is in affirmative. 5 The respondent No.1 pleaded that her husband had lawfully divorced his first wife Mandakini. In support of this pleading, she proved not only the execution of the deed of divorce but the witnesses who were present at the time of execution of the deed of CRA 138/2010 4 divorce, not only stated that they belong to the caste of Shridhar but also asserted that as per their caste custom, customary divorce through a divorce deed was permissible. Unfortunately, the applicant did not contradict this claim of these witnesses in respect of the caste custom. The applicant’s cross examiner did not touch this area at all during the cross examination. The respondent No.1 has thus not only pleaded that Shridhar had executed deed of divorce but she even proved that in their caste, such customary divorce was permissible. The learned advocate appearing for the applicant asserted that there could not be dessolution of hindu marriage through a private and non judicial termination of marital tie. He place reliance on three judgments. 6 The first judgment is of this Court and it is in the case of Jairam Somaji More Vs. Sindhubai w/o Jairam More and others reported in 1999(3) Mh.L.J. 872. Even in this judgment, the learned single judge very clearly stated the law on this subject. He stated that a party who wants to prove customary divorce has to plead and then prove such custom. The second judgment is again of this Court. It is judgment of Division Bench in the case of Smt. Jatina Samir Shah nee Jatina Rasiklal Thakkar Vs. Shri Samir Mohit Shah reported in 2009(2) ALL MR 404. Even in this judgment the Division Bench reiterated that in case a party seeks to prove customary divorce, he or she has to plead and then prove it. Third judgment is of Supreme Court in the case of Rameshwaridevi Vs. State of Bihar reported in 2000(1) Apex Court Journal 345 (S.C.) = 2000 Supreme Court AIR 735. I am afraid, the ratio of this judgment is not at all applicable to the question involved in this case. The Supreme Court was not dealing with the question as to how the customary divorce is proved CRA 138/2010 5 etc.. I am therefore, not inclined to discuss the ratio of this judgment. 7 The fourth judgment Shri Deshmukh showed to me is in the case of State of Chhatisgarh & Others Vs. Dhirjo Kumar Sengar reported in 2009 (4) ALL MR 987. In this judgment the Supreme Court reiterated the settled law that the succession certificate is granted to any heir or nominee of the deceased but the certificate would not confer any right or status on the receiver of the certificate. It only enables him or her to collect the dues of the deceased. In this case, as said above, the applicant has pleaded that Shridhar had lawfully divorced the applicant Mandakini and thereafter she could prove through the deposition of her witnesses that the divorce was customary and valid one. In view of this, the revision should fail. ORDER a) The revision stands dismissed. b) In view of this, the civil application No. 16909/2010 does not survive. It is disposed of as infructuous. c) The observations in this judgment are made only for issuance of succession certificate and shall not influence civil court in case, the parties approach it for declaration of status etc.. (A.V. NIRGUDE, J.) ts k/ok