In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.M-14070 of 2009 ..... Date of decision:21.5.2009 Afrik Singh alias Frik Singh .....Petitioner v. Balwinder Kaur .....Respondent .... Present: Mr. Parampreet Singh Paul, Advocate for the petitioner. ..... S.S. Saron, J. The petitioner, who is the husband of the respondent, has filed the present petition under Section 482 of the Code of Criminal Procedure (`Cr.P.C.' - for short) seeking quashing of the order dated 13.1.2009 (Annexure-P.2) passed by the learned Additional Sessions Judge, Fatehgarh Sahib as also the order dated 2.5.2007 (Annexure-P.1) passed by the learned Additional Chief Judicial Magistrate, Fatehgarh Sahib whereby maintenance at the rate of Rs.1,500/- has been awarded to the respondent under Section 125 Cr.P.C. The respondent filed a petition under Section 125 Cr.P.C. for the grant of maintenance allowance from the petitioner. The respondent is the legally wedded wife of the petitioner. The marriage amongst them was solemnized in 1989. Out of the marriage a son was born. The marriage between the parties has not been dissolved by a decree of divorce. The respondent alleged that the petitioner was running a hotel/restaurant at Morinda. He was earning more than Rs.20,000/- per month. He had left the company of the respondent without any reasonable cause in the month of Cr. Misc. No.M-14070 of 2009 [2] November 1994. Since then the respondent was residing at Village Rupalheri and the petitioner had not sent a single penny to her even though he was duty bound to maintain his legally wedded wife as she was unable to maintain herself and that she has no source of income. She was living at the mercy of her parents who were also unable to maintain her. The petitioner, however, has solemnized his second marriage with one Pardeep Kaur resident of Sherpur and out of the said wedlock they had two children i.e. a son and a daughter who were living with them. The petitioner and said Pardeep Kaur were living as husband and wife under one roof. The petitioner, in fact, could not re-marry with Pardeep Kaur without getting a divorce from the respondent from a Court of competent jurisdiction. Therefore, the marriage of the petitioner with said Pardeep Kaur was illegal and of no value in the eyes of law. The petitioner had sufficient income to maintain the respondent and he can easily maintain her. The respondent prayed for the grant of maintenance allowance @ Rs.4,000/- per month. The petitioner contested the petition filed by the respondent primarily on the ground that by way of a writing dated 14.2.1995 as per custom prevailing in the families of the parties, the marriage between them had been dissolved. In terms of the said writing the respondent had also received a sum of Rs.1,25,000/- from the parents of the petitioner. She had undertaken that she would have no concern or connection with the petitioner from the said date; besides, she would not take any proceedings against the petitioner and in case of default the said proceedings shall be treated to be false and wrong. The divorce between the parties, it was pleaded, had already been acted upon. It is stated that the respondent after getting divorce from the petitioner had re-married with one Gurbachan Cr. Misc. No.M-14070 of 2009 [3] Singh son of Gurdev Singh and she was residing with him as his legally wedded wife and was being maintained by him. It was denied that the petitioner was running any hotel or restaurant neither was he earning Rs.20,000/-per month. Besides, he had not left the company of the respondent. Rather, the respondent herself had left the company of the petitioner more than ten years ago as she did not like to stay with the petitioner. She herself divorced the petitioner according to the custom prevailing amongst the families of the parties. It was also denied that the respondent was residing at Village Rupalheri and she was, in fact, residing with her husband. There was no relationship of husband and wife between the parties. The petitioner was not duty bound to maintain the respondent. It was also stated that the respondent was doing the work of tailoring and embroidery and was earning Rs.3,000/- per month and her total income was Rs.6,000/- per month. Therefore, she was able to maintain herself. It was denied that the petitioner contracted second marriage with Pardeep Kaur and no child was born from the said alleged marriage. The petitioner and Pardeep Kaur were not living as husband and wife. The respondent was no more the wife of the petitioner. The respondent-wife filed a rejoinder denying the assertions made by the petitioner in his written reply to the petition of the respondent. The parties led their evidence. The case primarily set up by the petitioner was that a divorce deed dated 14.2.1995 (Ex.R.2) had been executed between the respondent and the father of the petitioner on behalf of the petitioner and the marriage between them as per custom no longer subsisted. The learned Chief Judicial Magistrate after referring to the writing dated 14.2.1995 (Ex.R.2) came to the conclusion that the divorce Cr. Misc. No.M-14070 of 2009 [4] deed by customary divorce is to be obtained by the parties in accordance with the provisions under Section 4(1) of the Hindu Marriage Act, 1955 (`Act' – for short). Besides, on the account of dissolution of marriage by way of divorce, a decree is liable to be obtained from the Court of competent jurisdiction under the Act. Therefore, the divorce deed (Ex.R.2), it was held, was of no avail to the petitioner. As regards the marriage of the respondent with Gurbachan Singh, it was held that the respondent is not the legally wedded wife of Gurbachan Singh or was being maintained by him. The petitioner, it was held, had sufficient income. He owned agricultural land which was evident from the copy of the Jamabandi for the year 2002- 03. He owned a house as well as hotel/restaurant as recorded in the documents that were produced. Admittedly, he was a passport holder and had also gone abroad. Therefore, it was held that he had sufficient income but had refused and neglected to maintain the respondent, who was his legally wedded wife. Accordingly, an amount of Rs.1,500/- per month was awarded by the learned Chief Judicial Magistrate Fatehgarh Sahib to the respondent in terms of order dated 2.5.2007 (Annexure-P.1). Aggrieved against the said order both the parties preferred revision petitions. The respondent-wife was aggrieved against the inadequate maintenance that was awarded. The petitioner-husband was aggrieved against the order of the learned Chief Judicial Magistrate in its entirety. The learned Additional Sessions Judge, Fategarh Sahib vide order dated 13.1.2009 (Annexure-P.2) has dismissed both the revision petitions. The petitioner-husband has filed the present miscellaneous petition under Section 482 Cr.P.C. assailing the orders (Annexures-P.1 and P.2) of the learned Courts below. Learned counsel for the petitioner has submitted that the Cr. Misc. No.M-14070 of 2009 [5] petitioner is residing and working in Dubai and the respondent had divorced the petitioner and she also executed a writing dated 14.2.1995 (Annexure- P.3) in this regard. The said divorce is valid as per custom prevalent in the families of the parties. It is submitted that the learned Courts below had not taken into consideration that there is a custom amongst Jat Sikhs of that area that they can take divorce by divorcing each other. Therefore, it is stated that the parties are living apart by mutual consent and the wife is not entitled to maintenance. At the time of execution of the writing, the respondent had taken lump-sum maintenance of Rs.1,25,000/- and this fact had been admitted by her in her statement. It is stated that the respondent had admitted that she did not want to reside with the petitioner as his wife and she was also at liberty to marry with another person as per her choice. It is also submitted that the petitioner had transferred some part of agricultural land in the name of his son Harjot Singh who had now become a major and was residing separately from the respondent. It is submitted that in terms of the divorce deed dated 14.2.1995, the respondent is not entitled to maintenance; besides, she had re-married and was living with one Gurbachan Singh. It is submitted that the petitioner had produced the voter list wherein at serial No.221 it is shown that respondent is the legally wedded wife of Gurbachan Singh of Village Mouli Baidwan, District Mohali. A photo copy of the voter list has been attached as (Annexure-P.4). I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner, however, find no merit in the same. The primary case of the petitioner is based on the divorce deed dated Cr. Misc. No.M-14070 of 2009 [6] 14.2.1995 (Annexure-P.3) which has been executed between the respondent and the father of the petitioner on behalf of the petitioner. It is inter alia recorded in the said deed which has been signed between the respondent and the father of the petitioner that the respondent agrees in the presence of the parents of the petitioner and on their surety and also in the presence of the members of both the Panchayats of Villages Rupalheri and Boor Majra that she was giving divorce to Afrik Singh (petitioner) and also giving in writing that Afrik Singh was not her husband and neither she is his wife. It is further mentioned that Afrik Singh (petitioner) may keep any lady in his house as his wife and she would have no objection. Even the respondent was at liberty to live with any man as his wife to which the petitioner would have no objection. Besides, she was taking Rs.1,25,000/- by a demand draft dated 14.2.1995 which was handed over to her. FDR for an amount of Rs.1,25,000/- in the name of Harjot Singh was agreed to be made by the parents of Afrik Singh which would be encashed by him after he became a major. The respondent nor her parents would have any connection or concern with the same. It was also agreed that the heir to the property of Afrik Singh would be Harjot Singh and the respondent would have no concern with the same. Harjot Singh would be entitled to the property of Afrik Singh according to his share. It was also agreed that after the execution of the deed the respondent would have no concern with Afrik Singh and his family. The case of the petitioner, which is now set up is that the parties are Jat Sikhs and, therefore, the form of divorce, which has been adopted is valid between the parties. It may, however, be noticed that though a marriage between the parties can be dissolved by way of custom, Cr. Misc. No.M-14070 of 2009 [7] however, the custom is liable to be pleaded and proved in accordance with law before it can be acted upon. Section 29(2) of the Act provides that nothing contained in the Act shall be deemed to affect any right recognized by the 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. Therefore, customary mode of divorce and form is recognized even under the Act. Before the enactment of the Hindu Marriage Act divorce was recognized only under custom otherwise a Hindu marriage was not liable to be dissolved. The customary mode of divorce, though is available but the same is liable to be pleaded, proved and established in proceedings under the Act or by way of appropriate civil proceedings and not in summary proceedings under Section 125 Cr.P.C. Even otherwise, it is well known that in the matter of custom, a party which sets it up is required to plead the same in specific terms as to what is the custom that he is relying on. Besides, he is to prove the custom that has been pleaded by him. A party cannot be permitted to prove a custom that has not been pleaded by him. The custom pleaded is required to be proved and shown by satisfactory evidence that it exists and it has continued and also about its consistency with which it has been observed. The other party is entitled to rebut the evidence so produced by the party setting up the custom and show that the custom in question was invariably not followed. A party which is opposed to the custom without knowing the nature of the custom would not be in a position to lead evidence to rebut the same. These aspects, however, can be gone into in a properly instituted petition under the Act or in a civil suit and is not the domain of a criminal Court in Cr. Misc. No.M-14070 of 2009 [8] proceedings under Section 125 Cr.P.C. which are summary in nature. Therefore, the fact that there is a custom amongst the Jat Sikhs in which they can divorce their wife by executing a deed and without a decree of a competent Court would be required to be pleaded and proved in an appropriate proceeding. The same is not shown to have been set up by the petitioner in his reply to the petition of the respondent under Section 125 Cr.P.C. The same has been set up in this Court in the miscellaneous petition that has been filed. Therefore, there is no error in the orders passed by the learned Courts below in allowing maintenance to the respondent-wife in view of the fact that marriage between the parties still subsists and has not been dissolved by a decree of divorce passed by a Court of competent jurisdiction which is the normal course for dissolving a marriage between the parties who are governed by the provisions of the Hindu Marriage Act. The exception to the rule is a custom which is saved by the provisions of Section 29(2) of the Act and which is liable to be pleaded and proved in accordance with law and that too in appropriate proceedings. Therefore, the reliance placed by the petitioner on the divorce deed dated 14.2.1995 (Annexure-P.3) is of no significance and does not affect the status of the parties as husband and wife. The contention that the respondent had married one Gurbachan Singh is of no significance. The voters list of the year 1998 (Ex.R.3) was considered by the learned Chief Judicial Magistrate in which one Balwinder Kaur is recorded as wife of Gurbachan Singh at serial No.221. It was observed that the petitioner-husband had failed to connect the said document with the respondent-wife and on the basis of the same it cannot be held that the respondent is the legally wedded wife of said Gurbachan Cr. Misc. No.M-14070 of 2009 [9] Singh. The voters list (Annexure-P.4) that has been placed on record merely records one Gurbachan Singh son of Gurdev Singh at serial No.219 of a voters list and Balwinder Kaur wife of Gurbachan Singh at serial No.221. The said voters list to say the least does not, in any manner, mean that Balwinder Kaur who is the respondent herein is the same person who is recorded at serial No.221 of the voters list (Annexure-P.4). Therefore, the learned Courts below have rightly ruled out of consideration the voters list (Ex.R.3) for holding that the respondent is the wife of Gurbachan Singh. The further contention of the learned counsel for the petitioner is that the parties are living apart by mutual consent and, therefore, the wife is not entitled to maintenance. In support of this, learned counsel has placed strong reliance on the case of Baggu Singh v. Chhindo and Pala Singh, 1984 (2) RCR (Cr.) 69 (P&H). In the said case the husband had pleaded that his wife was pregnant at the time of marriage and when the said fact came to his knowledge she had left his house of her own accord. Thereafter, the parents of the parties had agreed before the Panchayat that the parties would live separately and both were free to marry. In the said context where the wife is alleged to be pregnant at the time of her marriage and the parties were living apart by mutual consent it was held that the wife was not held entitled to maintenance. The ratio of the said judgment is not applicable to the facts of the present case. In the afore-noticed facts and circumstances, there is no error in the orders (Annexures-P.1 and P.2) passed by the learned Courts below, which would warrant interference by this Court in exercise of its inherent jurisdiction to hold that the respondent is not entitled for maintenance. Accordingly, the criminal miscellaneous petition is dismissed. Cr. Misc. No.M-14070 of 2009 [10] May 21, 2009. (S.S. Saron) Judge *hsp*