( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.582 OF 2009 Kamalbai w/o Vikram Dikale Age: 50 years, Occ: Agri., R/o. Parti, Tq. Loha, District Nanded & Ors. .. Appellants. Versus Indrabai d/o Limbaji Pawar, Age: 60 years, Occ: Agri., & Ors. .. Respondents WITH CIVIL APPLICATION NO.8343 OF 2009 ... Mr. S.V. Warad, Advocate for the appellants. Mr.S.C.Yeramwar, Advocate holding for Mr. A.S. Golegaonkar, Advocate for respondent Nos.1 & 2. ... CORAM : P.R. BORKAR,J. DATED : 29.03.2010 P.C. :- Heard Mr. S.V. Warad, Advocate for the appellant and Mr. S.C. Yeramwar, Advocate holding for Mr. A.S. Golegaonkar, Advocate for respondent Nos. 1 and 2. ( 2 ) 2. This is a Second Appeal filed by original plaintiff Nos. 1 to 4. They filed suit for the declaration of their title and for injunction against the respondents. The suit was decreed by the Civil Judge, J.D. Loha on 10-06-2004. However, in R.C.A. No. 48/2004, the Additional District Judge-1 Kandhar modified the decree passed in R.C.S. No. 170/1994 and declared that the original plaintiff Nos.2 to 4 and defendant No.1 were the owners of the suit properties. The plaintiffs were in actual possession of the suit properties and defendant No. 1 was in constructive possession of the suit properties. The injunction was granted only as against the original defendant Nos. 2 and 3 with permission to them to file suit for general partition seeking allotment of the suit land alienated to them by Indirabai. 3. The main point that has arisen in this case is the legality of the alleged marriage of plaintiff No.1 Kamalbai with Vikram Dikale and legality of alleged divorce of defendant No.1 Indirabai with Vikram Dikale. It is not disputed that the suit land Gat No.301 admeasuring 2 H. 71 R to the extent of 77 R and 0.5 R out of Gat No.474 and 0.46 R ( 3 ) out of Gat No.475 situated at village Pardi were properties belonging to Vikram. Vikram expired on 11-11-1985. It is not disputed that respondent No. 1 Indirabai ( who was original defendant No.1) had married Vikram and was his first wife. However, it is the case of the plaintiffs that Vikram had divorced defendant No.1 Indirabai and thereafter he married plaintiff No.1 Kamalbai and plaintiff Nos. 2 to 4 were born. It is also stated that divorce had taken in about 1976 between Vikram and defendant No. 1 Indirabai. After the death of Vikram, the suit was filed for declaration of ownership and for injunction by Kamalbai and her three daughters against the original defendant No.1 Indirabai and purchasers of the property who are original defendant Nos. 2 and 3. 4. The main question on which the entire fate of the suit depends is whether defendant No. 1 Indirabai was divorced by Vikram and the trial Court answered in the affirmative. The second question was whether plaintiff No.1 Kamalbai has married Vikram or was his concubine as stated in Issue No.4 and the trial Court held that plaintiff No. 1 Kamalbai was not concubine and he held her to be legally wedded wife. On ( 4 ) the other hand, in appeal, the Additional District Judge has come to the conclusion that there was no decree of divorce between defendant No. 1 Indirabai and Vikram. He also held that it was not pleaded or proved that there was any custom of divorce and we find the discussion of this issue in Para-7 and 8 of the Appellate Court's Judgment. In Para-7, the District Judge has observed that no decree of divorce was passed by the Court of competent jurisdiction under the Hindu Marriage Act. So, in absence of such divorce, it was for the plaintiffs to prove lawful divorce between Vikram and Indirabai. He observed that there was no pleadings made on behalf of the plaintiffs that in their community, there was custom of divorce by returning Mangalsutra or wiping of Kum Kum on the forehead of the wife. Apart from these pleadings of custom and usage, it is also held that plaintiff No.1 Kamalbai failed to give any other instance of divorce in her community. Admittedly, she was no eye - witness on the divorce between Vikram and Indirabai. 5. P.W. 2 Balaji, who is brother of deceased Vikram, stated in Para-3 of his deposition at the end that he had not attended any other divorce similar to the one said to be ( 5 ) between Vikram and Indirabai. P.W. 3 Gayabai, who is sister of plaintiff No. 1, has not spoken anything about the custom or usage in her community and therefore, it is held that there was neither pleadings nor proof of any custom of divorce by returning of Mangalsutra and wiping out Kum Kum from the forehead of former wife. The view taken by the First Appellate Court is as per law. Merely because defendant No. 1 Indirabai used her maiden name is not sufficient to prove divorce in law. Voters list is relied upon by the plaintiffs to show that Indirabai was using her maiden name. Learned District Judge has rightly observed in Para-8 that it is not the question whether Indirabai treated her as divorcee or not. It does not depend upon wishful thinking between the parties and therefore, it will have to be proved like any other fact such as custom has been pleaded and proved. 6. Learned Advocate for the appellant relied upon the case of Badri Prasad vs. Dy. Director of Consolidation and others, ( AIR 1978 SC 1557 ), in which, it is observed that strong presumption arises in favour of wedlock where partners have lived together for a long spell as husband and wife. It is ( 6 ) true that such presumption is always drawn. In this case, main question is whether there was divorce between Indirabai and deceased Vikram as per custom. In this case, question of valid marriage between Kamalabai and Vikram arises only if divorce by Vikram to his first wife Indirabai is proved and therefore, the cited case is not applicable to the present case. 7. In the circumstances, in my opinion, no substantial question of law is involved in the present case and therefore, the Second Appeal does not survive. In the result, the Second Appeal is dismissed. 8. Civil Application No. 8343 of 2009 does not survive, in view of the dismissal of the Second Appeal No. 582 of 2009 and therefore, disposed of accordingly. [P.R. BORKAR,J.] sut/MAR10/sa582.09