Vinod K.Sharma, J.
1 This appeal by the appellant/wife is directed against the judgment and decree dated 30.7.2002 passed by the learned Additional District Judge, Patiala vide which petition filed by the respondent/husband under Sections 11 and 12 of the Hindu Marriage Act, 1955 (for short the Act), was allowed.
2 The respondent/husband filed a petition under Sections 11 and 12 of the Act against the appellant/wife on the allegations that the marriage between the parties was solemnized on 5.12.1997 at Ropar. Prior to the marriage the respondent/husband was married to one Surjit Kaur and a female child namely Jaswinder Kaur was born on 15.8.1993. Surjit Kaur died on 10.5.1995 and thereafter the marriage between the parties was performed.
3 The case set up by the respondent was that after the marriage the husband came to know that the appellant was already married with Jaspal Singh son of Hardial Singh resident of House No. 75A, Ward No. 1, Jhugian Road, Kharar. Jaspal Singh was still alive and the marriage between the appellant and Jaspal Singh had not been dissolved. It was also the case set up that on inquiries family members of the appellant including the appellant disclosed that the marriage between the appellant and Jaspal Singh was dissolved by a decree of divorce but the copy thereof was retained by their counsel. However, no copy was shown to the respondent. It was also the case of the respondent that even subcaste of the appellant was not disclosed which was, in fact, the same as that of the respondent. Thus, plea of fraud was taken for declaring the marriage to be nullity.
4 Petition was contested on the plea that the respondent/husband has suppressed the material facts regarding birth of a female child on 5.2.1999 in Kiran Nursing Home, Ropar. Smt.Surjit Kaur earlier wife of the respondent had died as a result of dowry death. FIR No. 115 dated 5.5.1995 was registered at Police Station Sadar Patiala against the respondent and his father. It was alleged that the marriage between the parties was arranged through Ms. Kamaljit Kaur wife of Mohan Singh and not by Daljit Singh. It was disclosed that subcaste was correctly disclosed at the time of marriage. It was pleaded that sub castes of the parties were different. It was also pleaded that the fact regarding previous marriage was disclosed to the respondent. Stand was taken that the marriage with Jaspal Singh was dissolved through writing in the panchayat which was written on stamp paper and signed by both the parties. Stand was also taken that the marriage between the parties was solemnized after dissolution of earlier marriage of the appellant with Jaspal Singh in the panchayat, and that Jaspal Singh had also solemnized second marriage with Baljinder Kaur daughter of Jagir Singh on 30.6.1998. It was denied that the certified copy of the decree was ever asked from the appellant.
5 In the replication, averments made in the written statement were denied and that of the petition were reiterated.
6 On the pleadings of the parties learned trial Court framed the following issues :
1. Whether the petitioner is entitled to annulment of his marriage with respondent Rajinder Kaur within the provisions of Sections 11 nand 12 of the Hindu Marriage act ? OPA
2. Relief.
The respondent to prove the subcastes of the parties proved on record pedegree tables Ex. P.1 and P.2 . The respondent appeared in the witness box and also examined Smt. Parkash Kaur, Sucha Singh and Dalbir Singh, to prove the castes of the parties.
7 Learned matrimonial Court held that subcaste of both the parties was the same. However, plea of the respondent that fraud was played as the sub caste was not disclosed was not accepted. It was held that the fact was in fact disclosed to the respondent. On appreciation of evidence and fact regarding prosecution of the respondent regarding death of Surjit Kaur was taken to hold that the respondent must have been informed about the sub caste and the plea of fraud was rejected.
8 It was also held that the parties were not within the degree of prohibited relationship as defined under Section 3 (g) of the Act and therefore, it could not be a ground to annul the marriage.
9 Learned matrimonial Court, however, held that the marriage is void under Section 11 of the Act, as on the date of marriage Jaspal Singh i.e. spouse of the appellant was alive.
10 The learned matrimonial Court held that plea that the marriage was dissolved in panchayat could not be accepted as no plea of custom was raised nor any such custom was proved. The learned matrimonial Court held that on the date of marriage the appellant had not obtained divorce from her previous husband from any competent Court having jurisdiction.
11 As already observed above learned matrimonial Court also found as a fact, that no evidence was led to establish that there was any custom or usage prevalent in the community of the appellant under; which divorce through writing of panchayatnama was permissible. Hon''ble Supreme Court in the case of M.M. Malhotra v. Union of India and others, 2005(4) SCT 623 : AIR 2006 SC 80, has laid down as under :
"11. For appreciating the status of a, Hindu woman marrying a Hindu male with a living spouse some of the provisions of the Hindu Marriage Act, 1955 (herein referred to as the "Marriage Act") have to be examined. Section 11 of the Marriage Act declares such a marriage as null and void in the following terms: 11. Void marriage. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5."
Clause (i) of Section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the marriage. A marriage in contravention of this condition, therefore, is null and void. By reason of the overriding effect of the Marriage Act as mentioned in Section 4, no aid can be taken of the earlier Hindu law or any custom or usage as a part of that law inconsistent with any provision of the Act. So far as Section 12 is concerned, it is confined to other categories of marriages and is not applicable to one solemnized in violation of Section 5 (i) of the Act. Subsection (2) of Section 12 puts further restrictions on such a right. The cases covered by this Section are notvoid ab initio, and unless all the conditions mentioned therein are fulfilled and the aggrieved party exercises the right to avoid it, the same continues to be effective The marriages covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all if and when such a question arises. Although the Section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a Court in a proceeding specifically commenced for the purpose. The provisions of Section 16, which is quoted below, also throw light on this aspect."
16. Legitimaey of children of void and voidable marriages:
(1) Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in subsection (1) or subsection (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.
Subsection (1), by using the words underlined above clearly implies that a void marriage can be held to be so without a prior formal declaration by a Court in a proceeding. While dealing with cases covered by Section 12, subsection (2) refers to a decree of nullity as an essential condition and subsection (3) prominently brings out the basic difference in the character of void and voidable marriages as covered respectively by Sections 11 and 12. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception." In view of the authoritative pronouncement of Hon''ble Supreme Court marriage between the parties was nullity, therefore, learned matrimonial Court rightly allowed the petition and dissolved the marriage by way of a decree of nullity.
12 Mr. M.S. Rakkar, learned senior counsel appearing on behalf of the appellant vehemently contended that the marriage between the appellant and Jaspal Singh was dissolved by panchayatnama as per the custom and therefore, the learned Court below erred in law in allowing the petition under Section 11 of the Act.
13 In support of this contention learned senior counsel for the appellant placed reliance on the judgment of this Court in the case of Smt. Shakuntala Devi v.Amar Nath, AIR 1982 Punjab & Haryana 221, wherein this Court was pleased to lay down that the marriage between the children of a brother and a sister or two sisters among Aroras is protected under the custom being RiwajaAm.
14 Reliance was also placed on the judgment of Hon''ble Delhi High Court in the case of Balwinder Singh v. Smt. Gurpal Kaur, AIR 1985 Delhi 14, wherein Hon''ble Delhi High Court was pleased to lay down as under :
"There exists as custom amongst the Sikh Jats of District Amritsar under which the husband can validly dissolve his marriage otherwise than under the provisions of the Hindu Marriage Act.
The observation of their Lordships in Gurdit Singh v. Mst. Angrez Kaur, (AIR 1968 SC 142) manifestly show that the existence of a custom permitting dissolution of marriage by divorce amongst Hindu Jats does obtain in the districts surrounding Jullundur District which would naturally include District Amritsar.
In the instant case the respondent wife made a petition under S.11 of the Hindu Marriage Act for a declaration that the marriage between the parties was null and void inasmuch as the appellant had a living spouse at the time of their marriage. It was averred that at the time of their marriage the appellant had represented that h is earlier marriage with former wife had been validly dissolved but she came to know later on that his former wife was still alive and that her marriage with the appellant had not been dissolved in accordance with law. The petition was contested tooth and nail by the appellant who took the stand that his marriage with his first wife had been duly dissolved in accordance with customs which governed the Sikh Jats of Punjab including his family and a written deed to that effect was executed by both him and his first wife and that this fact was brought to the notice of the respondent and her relatives before their marriage was solemnized. Besides that the appellant also adduced oral evidence to prove various instances of dissolution of marriage by divorce by means of a written document pertaining to District Amritsar to which the appellant and his parents belonged.
Held that there was ample oral as well as other evidence on record to warrant the conclusion that there did exist a custom amongst Sikh Jats of District Amritsar under which a marriage could be dissolved out of Court preferably through a written instrument. The very fact that dissolution of marriage amongst Sikh Jats of that district had been taking place even after the enactment of the Act was in itself a strong proof of its recognition of the community concerned.
The judgment of the district Judge granting decree of nullity of marriage in favour of the respondent wife was liable to be set aside and the petition of the respondent wife for divorce was liable to be dismissed."
This contention of the learned senior counsel cannot be accepted. It is not in dispute that the appellant neither pleaded any custom nor any evidence was led in support thereof.
15 It is well settled law that the plea of custom has to be pleaded and proved, and in the absence thereof no presumption of custom can be drawn. Findings of the learned matrimonial Court on issue No. 1 are, therefore, affirmed.
16 Learned senior counsel for the applicantappellant has placed reliance on the judgment of the Hon''ble Supreme Court in Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga, 2005(1) RCR(Civil) 615 : 2005(1) Apex Court Judgments 396 to contend, that even in case where the marriage is declared as null and void under Section 11 read with Section 5(i) of the Hindu Marriage Act, the party is entitled to permanent alimony. The Hon''ble Supreme Court in Ramesh Chandra Rampratapji Daga v. Rameshwari Ramesh Chandra Daga (supra) has been pleased to lay down as under :
"17. In interpreting the provision of Section 25 in the case of Chand Dhawan (supra) the Supreme Court categorically held that the expression ''at the passing (sic. time) of passing any decree,'' as has been used in Section 25, includes a decree of nullity of marriage. The relevant observations read thus :
"On the other hand, under Hindu Marriage Act, in contrast, her claim for maintenance pendente lite is durated (sic) on the pendency of a litigation of the kind envisaged under Sections 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour of (sic. or) against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the Court does so by passing a decree for or against her. On or at the time of the happening of that event, the Court being seisin of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the Court retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation when moved by an application on that behalf by a party entitled to relief. The Court further retains the power to change or alter the order in view of the changed circumstances. Thus the whole exercise is within the gammit (sic gamut) of a diseased or a broken marriage. And in orderto avoid conflict of perceptions the legislature which codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the Court passing a decree of the kind as envisaged under Section 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial Court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affection or disruption. The wife''s claim to maintenance necessarily has then to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same sociolegal scheme revolutionizing the law applicable to Hindus. We have thus, in this light, no hesitation in coming to the view that when by Court intervention under the Hindu Marriage Act, affectation or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events, remains within thejurisdiction of that Court, to be altered or modified as future situations may warrant.
18. In the present case, on the husband''s petition, a decree declaring the second marriage as null and void has been granted. The learned counsel has argued that where the marriage is found to be null and void meaning nonexistent in eye of law or non est, the present respondent cannot lay a claim as wife for grant of permanent alimony or maintenance. We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited before us. In our considered opinion, as has been held by this Court in Chand Dhawan''s case (supra), the expression used in the opening part of Section 25 enabling the ''Court exercising jurisdiction under the Act'' ''at the time of passing any decree or at any time subsequent thereto'' to grant alimony or maintenance cannot be restricted only to, as contended, decree of judicial separation under Section 10 or divorce under Section 13. When the legislature has used such wide expression as ''at the time of passing of any decree,'' it encompasses within the expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section 12 and Divorce under Section 13." In view of the authoritative pronouncement of Hon''ble Supreme Court in the case of Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga (Supra), while affjrming the decree of nullity of marriage, keeping in view the income and status of parties permanent alimony payable to the respondent is fixed at the rate of Rs. 1500/ (Rupees fifteen hundred only) per month during her life time and in addition Rs. 1000/ (Rupees one thousand only) per month for child Daisy till the date of her marriage.
Appeal dismissed but with no order as to costs.
