IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 SA.No. 276 of 2001() -------------------- AS.81/1995 of PRL.S.C.,THALASSERY OS.63/1994 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANTS/RESPONDENTS/PLAINTIFFS: --------------------------------------------- 1. KUNIYIL CHEERUTTY, D/O.KORUMBAN, AGED 40 YEARS, RESIDING AT KUNIYIL HOUSE, KOLAVALLOOR AMSOM, KANNANCODE DESOM, P.O. THOOVAKKUNNU, THALASSERY, KANNUR. 2. SABINA, D/O. CHEERUTTY, (MINOR), REPRESENTED BY MOTHER AND GUARDIAN 1ST APPELLANT RESIDING AT -DO- -DO- BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.M.K.SUMOD RESPONDENT/APPELLANT/DEFENDANT: ------------------------------------------- KIZHAKKAYIL DASAN, S/O.LATE KRISHNAN, AGED 36 YEARS, BUSINESS, RESIDING AT KIZHAKKAYIL, KOLAVALLOOR AMSOM, KANNANCODE DESOM, P.O THOOVAKKUNNU, THALASSERY, KANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA,J. ------------------------- S.A No. 276 of 2001 -------------------------- Dated this the 8th July, 2011 J U D G M E N T The appellants are mother and daughter. They filed a suit before Munsiff Court, against respondents for declaration that they are his wife and daughter. The said suit was decreed with cost by granting the declaration as prayed for. In appeal, the Sub Court partly allowed the appeal. The declaration in respect of child was confirmed but the decree declaring first appellant as the legally wedded wife of respondent was set aside. Challenging the above decree and judgment of the lower appellate court, this second appeal is filed. 2. Facts briefly :According to appellants, first appellant was married to respondent on 23.10.1988 in accordance with the custom prevailing in their community. The second appellant is the daughter born in the said wed lock, on 30.11.1989. The 1st appellant was driven out of the matrimonial house by respondent and his family members on 3.5.1989. The respondent failed to maintain his wife and child and hence a petition was filed claiming maintenance S.A No. 276 of 2001 2 under section 125 Cr.P.C and order was passed in favour of second appellant. Since the proceedings in Criminal court is summary in nature, the factum of marriage was not considered in detail. 3. First appellant has a case in the plaint that she was married to one Balan when she was 12 year old and after about six months of marriage, first marriage of first appellant was dissolved by customary form of marriage, by observing the formalities and rituals prevalent at that time and now, among the Thyyas of north Malabar. Hence, the suit was filed to declare 1st appellant to be the legally wedded wife of respondent. 4. Respondent filed a written statement and contended that appellants are not his wife or child. There was no marriage between him and first appellant. They never lived together. First appellant was married to one Balan and she is the legally wedded wife of Balan and the said marriage was not dissolved in accordance with law and it is still subsisting. There is no custom in the locality or in the community by which marriage can be dissolved. Respondent is on inimical S.A No. 276 of 2001 3 terms with 1st appellant and hence the suit was filed. 5. After analysing the evidence, which consists of oral testimony of PW1 to PW8, DW1 to DW6, Ext.A1 to A5, B1 to B18 and X1 and X2 series, the trial court found that first respondent was married to second respondent. It was also found that first marriage of first appellant was dissolved, in accordance with the custom. It was also held that customary mode of divorce was recognized among Thyya community, in the light of a decision of this Court. 6. The appellate court however held that though 1st appellant succeeded in proving that she was married to respondent, customary divorce is not recgonised under the Madras Marumakkathayam Act, 1932 which applies to the parties. It is also held that there is no evidence to prove that customary divorce was prevalent in the community of the parties. It is also held that after commencement of the said Act, marriage can be dissolved only in the manner provided in section 6 of the Act. 7. The first appellate court also held that on commencement of the Hindu Marriage Act, no system of S.A No. 276 of 2001 4 divorce by custom was prevalent in the relevant community and hence, the contention regarding customary divorce was not acceptable. It was also held by lower appellate court that even if any custom was prevalent in the community, the same was repealed after commencement of Madras Marumakkathayam Act. Therefore, first appellant cannot be said to be legally wedded wife of first respondent, it was held. 8. The following substantial question of law are involved in this appeal and those are framed as hereunder: (1) Is customary dissolution of marriage in Thiyya Community of North Malabar is recognised under the Madras Marumakkathayam Act, 1932? (2) Can it be said that by virtue of Section 6 of the Madras Marumakkathayam Act, customary divorce in Thiyya community of North Malabar is not recognised, under the said Act? (3) Is customary dissolution of marriage prevalent in Thiyya community of North Malabar and if so, is it saved under Section 29 (2) of the Hindu Marriage Act? 9. Both sides are heard in detail on the above questions of law. According to lower appellate court, a customary mode of divorce between members of the Thiyya S.A No. 276 of 2001 5 Community of North Malabar is not recognised as per Section 6 of the Act. The marriage can be dissolved only in the manner provided in Section 6 of the Act, it is further held. Lower appellate court is of view that on enactment of Madras Marumakkathayam Act, customary divorce, if any, prevalent in the community was repealed. 10. The court below referred to Section 6 of the Act, wherein, it is laid down “ nothing contained in this section shall be deemed to invalidate any dissolution of the marriage effected before the day on which this Act comes into force, in accordance with the custom prevailing in the community to which the parties belong or either of them belongs” According to lower appellate court, the said provision will indicate that any dissolution of marriage effected prior to the commencement of the Act as per custom will be valid, but after the commencement of the Act, a marriage under Section 4 can be dissolved, only as provided in Section 7 of the Act. 11. Section 7 provides that marriage can be dissolved either by a registered document of dissolution executed by S.A No. 276 of 2001 6 the parties or by an order of dissolution as stated in Section 7 of the Act. Therefore, by the commencement of the Madras Marumakkathayam Act, 1932, a marriage can be dissolved only by executing a registered document between the parties or a decree of court on a petition made under Section 7, is the view expressed by the lower appellate court. 12. Since even by the Marumakkathayam Act of 1932, a customary divorce among the marumakkathayees was not recognised by law in the absence of any provision or law, after repeal of the Madras Marumakkathayam Act, a customary divorce in Thiyya community of North Malabar cannot be recognised in law, it is held by lower appellate court. In such circumstances, the lower appellate court proceeded to hold that the customary divorce, if any, in Thiyya community of North Malabar is not saved by Section 29 (2) of Hindu Marriage Act. The above findings are challenged in this appeal. 13. Learned counsel for the appellant argued that by virtue of Section 50 of Madras Marumakkathayam Act, a S.A No. 276 of 2001 7 customary divorce among the marumakkathayees is saved. Hence notwithstanding what is stated in Sections 6 and 7 of the Act, a customary divorce is recognised under the Act itself and the findings of the court below are unsustainable, it is argued. However, learned counsel for the respondent argued that there is not even a pleading regarding the existence of any customary divorce. It is also not even stated in the plaint what exactly was the custom and therefore now raised the dispute need not be considered at all. 14. Referring to the decision reported in Yamanaji H. Jadhav Vs. Nirmal [2002 (2) SCC 637] it was argued that in paragraph 7 of the said decision, it is specifically laid down that since customary divorce is an exception to the general law, there must be specific pleading regarding the existence of custom as well as the details of the custom followed in the community. It is also submitted by learned counsel for respondent that in Kochan Kani Kunhu Raman Kani Vs. Mathevan Kani Sankaran Kani [1971 KLT 458 SC] also, it is laid down that it is essential to plead the form of a S.A No. 276 of 2001 8 custom followed for effecting a customary divorce. 15. On going through the above decisions, it is clear that there must be pleading in respect of customary divorce. A reading of paragraph 7 of the plaint shows that there is a specific pleading therein that first marriage of first appellant with Balan was dissolved by customary form of divorce, by observing all the formalities of customs and rituals which allegedly prevailed at the time of presentation of the plaint among the Thiyyas of North Malabar. It is also specifically pleaded that customary divorce among such community has force of law in the light of the decision reported in Achu Vs. Chandkurhan [1958 KLT 916]. 16. In the written statement there is a specific pleading that the first marriage of the first appellant with Balan is not dissolved legally and no such customary divorce is in existence in the locality or in the community. Therefore, there being an assertion and denial regarding the existence of customary divorce, an issue arose. However, trial court failed to frame such an issue, which is very vital in this case. Lower appellate court also failed to S.A No. 276 of 2001 9 note importance of such an issue. 17. The existence of customary marriage and question whether former marriage of first appellant is dissolved by customary divorce are most crucial issues in this case because the legitimacy of child aged 4 years at the time of filing the suit, who is the second appellant will depend upon decisions on such issues. The failure to frame an important issue in a suit itself has vitiated the decree relating to the legality of the marriage of first appellant and the respondent. 18. I am satisfied on hearing both sides that relevant issues ought to have been framed and answered for taking a right decision in this case. For this purpose the case has to go back. Regarding he questions of law relating to scope of Section 50, 6 and 7 of the Act and Section 29(2) of Hindu Marriage Act, a reading of those provisions are necessary. Section 50 of the Madras Marumakkathayam Act, 1932 reads as follows: “(a) Nothing contained in this Act shall be deemed to confer any rights on the parties to or the issue of any marriage which is dissolved before this Act comes into force , or S.A No. 276 of 2001 10 (b) be deemed to affect any rule of Marumakkathayam law custom or usage, except to the extent expressly laid down in this Act.” 19. It is laid down in Section 50 (b) of the Act that nothing contained in the Act shall be deemed to affect any rule of Marumakkathayam law, custom or usage, except to the extent expressly laid down in the Act. Section 6 of the Act provides that marriage which is valid under Section 4 may be dissolved by a registered instrument or by an order of dissolution under the Act. A customary divorce effected prior to the commencement of the Act is specifically saved in Section 6. Section 7 provides that, a husband or wife may present a petition for dissolution of marriage and by virtue of Section 9 of the Act, the court can declare the marriage dissolved. 20. An amendment is introduced in Section 6 of the Act by Section 3 (2) of Act 32/1947 by which it is specifically laid down that nothing in the Section shall be deemed to invalidate any dissolution of marriage effected prior to the commencement of the Act, in accordance with the custom S.A No. 276 of 2001 11 prevailing in the community of the marumakkathayees. It may appear from Section 6 itself that the divorce effected by custom in the community before the commencement of the Act is not invalidated. Therefore, there could be a customary divorce among marumakkathayees. By Section 50 (b), such a custom is saved in the absence of a provision in the Act expressly laying down that such custom is invalid or not recognised by law. 21. Section 50(b) is very clear on the fact that nothing contained in the Act shall be deemed to affect any custom except to the extent expressly laid down in the Act which expressly lays down that the customary divorce in the community to which the Act applies is not recognised under the Act. In the absence of any provision in the Act, it has to be held that the customary divorce among marumakkathayees does not lose legal recognition by the commencement of the Act. 22. Only because customary divorce prior to the commencement of the Act is saved, and it is recognised by insertion of Section 3 (2) of Act 32 of 1947, it cannot be S.A No. 276 of 2001 12 said that customary divorce effected after commencement of the Act is not recognised by law or that it is invalid, especially in the light of saving under Section 50 (b). In my view, the expression 'custom' referred to in Section 50 (b) applies to the custom prevalent in the community, even in respect of divorce. In such circumstances, the findings of the lower appellate court to the contrary cannot be upheld and those are to be set aside. 23. Now coming to the second question relating to the scope of Section 29 of the Hindu Marriage Act, it can be seen that as per Section 29 (2), “nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred on any such enactment to obtain the dissolution of Hindu Marriage Act whether solemnised before or after the commencement of this Act”. In the light of the express, clear and unambiguous language of Section 29 (2), there cannot be any dispute that customary divorce after the commencement of the Act is also recognised, notwithstanding what is stated in the Hindu Marriage Act. 24. But a reading of the impugned judgment shows S.A No. 276 of 2001 13 that the trial court come to a conclusion that customary divorce in the present case is not saved under Section 29 (2) of the Hindu Marriage Act, since according to the court below Hindu Marumakkathayam Act does not recognise such a customary divorce. Since I have already held that the customary divorce is recognised notwithstanding the commencement of the Marumakkathayam Act, the finding on Section 29 (2) of the Hindu Marriage Act also cannot be upheld. 25. However, the above conclusions on the substantial questions of law will not resolve the dispute between the parties, on the facts of this case. As already held by me earlier, no issue was raised relating to the question whether any customary divorce exists in Thiyya community of North Malabar and whether the relevant persons have undergone customary divorce and whether the marriage between the first appellant and Balan was dissolved by customary divorce etc. On going through the records and evidence in this case, I am satisfied that one of the most crucial pivotal issue which arises in the suit is S.A No. 276 of 2001 14 regarding the very existence of customary divorce in Thiyya community of North Malabar. 26. On the peculiar fact sand circumstances of this case, I find that issues have to be framed by trial court and failure to do so has resulted in miscarriage of justice. I am also of view that an opportunity has to be given to both sides to amend the pleadings and to lead such evidence, as necessary on the crucial issues. 27. In this context, learned counsel for the appellants also argued that in the light of what is stated in Achu Vs. Chandkurhan [1958 KLT 916] it has to be held that customary divorce in Thiyya community of North Malabar is recognised by precedents. Therefore, it is not necessary for the appellants to specifically plead that such customary divorce is in existence. It is also argued that it is not necessary that the details of custom are pleaded and proved by the appellants. 28. Learned counsel for the respondent vehemently contended that such contentions cannot be upheld in the light of the dictum laid down in Kochan Kani Kunhu Raman S.A No. 276 of 2001 15 Kani Vs. Mathevan Kani Sankaran Kani [1971 KLT 458 SC], Yamanaji H.Jadhav Vs. Nirmala [ 2002 (2) SCC 637] and Thankamma Vs. Narayana Pillai [1957 SC 1088]. The burden is on the party who sets up a custom to plead and prove the existence of custom on which he relies. 29. It is also submitted that though it is laid down in in the decision cited by the appellants counsel in Achu's case that a customary divorce is prevalent in Thiyya community of North Malabar to which Makkathayam law applies and it is also admitted that the parties are governed by Madras Marumakkathayam law, depending upon the locality, the custom may vary, irrespective of whether the parties belong to the same community or not. 30. It is pointed out by learned counsel for respondent that in Achu's case, the parties are Thiyyas of 'Ernad'. They are following Makkathayam law, whereas Thiyyas of North Malabar follow the Marumakkathayam law. It is also pointed out that though an unreported decision of a Division Bench of this Court is relied upon by appellants to exempt them from proving and pleading existence of S.A No. 276 of 2001 16 customary divorce in that case, this court was referring to the custom case of custom in respect of “Ezhavas”. There are lots of difference between the custom followed by Thiyyas of South Malabar, the Thiyyas of North Malabar and Ezhavas. They belong to different category who follow different custom, it is submitted. 31. On going through the decisions cited, I can only accept the arguments advanced by the learned counsel for the respondent. It is to be noted at this juncture that referring to various decisions of the Privy Council etc, the Supreme Court in Saraswathi Ammal Vs. Jagadambal and Another [1953 SCR 939] observed “a community living in one particular district may have evolve a particular custom but from that it does not follow that the community living in another district is necessarily following the same custom”. Therefore, I find that this is a case where there must be specific issue regarding the existence of customary divorce etc. Customary divorce being an exception to the general law, the courts must be careful in deciding the issue. S.A No. 276 of 2001 17 32. Summing up, I hold that the decree and judgment under challenge in this appeal are liable to be set aside and I do so. In the result, the following order is passed: (1) The decree and judgment under challenge are set aside. (2) The case is remanded to the trial court for trial on the following issues: (i) Whether a customary divorce as alleged was prevalent in the community to which the parties belong? (ii) Whether the marriage between 1st appellant and Balan was dissolved by customary divorce? (3) The trial court shall give opportunity to both sides to amend the pleadings as may deem it fit and proper, if any application is filed for amendment. (4) Parties shall appear before the trial court on receipt of notice to their counsel from trial court. (5) The trial court may also frame fresh additional issues if found necessary in the light of the additional pleadings and dispose of the suit, in accordance with law. This appeal is allowed. Sd/-K.HEMA, JUDGE ma /True copy/ P.A. to Judge