Dr. Gopal Dimaji Borade vs Dimaji Piraji Borade and Others

R.J. Kochar, J.—Relations and families are found to have been wrecked on the rocks of either excessive property or abysmal poverty. In the present case property has become the root cause for the dissensions to such an extent that the plaintiff-son and his two brothers (defendant Nos. 2 and 3) have questioned the motherhood of their mother (defendant No. 4) by calling her merely the second wife of their father in their greed to get some more share in the property and to add to their already existing riches and affluence as all appear to be very well placed and posted in the station of their life. They have named their brothers defendant Nos. 5,6 and 7, as the illegitimate children of their father from his second wife-defendant No. 4. The greed for more property has condemned the very hands which nursed, cared and brought up the plaintiff-son and his other brothers as highly educated men of status in the society. Love for mother is lost in the right to get property. They have called her in the folios of this suit only an illegitimate wife of their father and her sons as illegitimate ones. Let us now discern the question of their rights.

The appellant is the original plaintiff, who had filed Regular Civil Suit No. 557 of 1984 for partition and possession of various properties, movable and immovable mentioned in the Schedule of the plaint. The appellant will be hereinafter referred to as the "plaintiff". The respondent No. 1 is the defendant No. 1 and the father of the appellant. The respondent Nos. 2 and 3 are the real brothers of the plaintiff and original defendants 2 and 3. It was the case of the plaintiff and the defendants 2 and 3 that they had 1/4th share in the ancestral property mentioned in the Schedule and, therefore, the suit was filed for partition and possession. It was contended by the plaintiff that the plaintiff and the defendants 2 and 3 are the sons of defendant No. 1 from his first wife Kesarbai, who died on 18.8.1974. It was the case of the plaintiff that his father-defendant No. 1 got married to the original defendant Nos. 4 for the second time during the life-time of his first wife and hence the second marriage is illegal and null and void and hence the children born to the defendant Nos. 1 and 4, i.e. defendant Nos. 5 to 9 are illegitimate and they did not have any share in the ancestral property.

On the contrary it was the case of the defendant No. 1-the father of the plaintiff that he was legally married to defendant No. 4-Vimalbai and the entire property was his self-acquired property. He had specifically averred in the written statement that he belonged to Dhor community and that there was a custom of giving divorce either unilaterally or by mutual consent. He further averred that his marriage with deceased Kesarbai was dissolved by a Registered Deed of Divorce dated 7.2.1951 and that the said Deed was also got registered in the Office of the Joint Sub-Registrar, Haveli No. 1 Pune at Sr. No. 407. He has specifically averred that it was only after his marriage with the deceased Kesarbai was dissolved, he got married legally and according to Hindu rites and customs with the defendant No. 4-Vimalbai.

On the basis of the pleadings and oral and documentary evidence adduced before the Trial Court by both the parties the learned 2nd Joint Judge, Senior Division, Pune held that the divorce of defendant No. 1 and his first wife Kesarbai was legal and valid as per custom of their caste and, therefore, the subsequent marriage of the defendant No. 1 with the defendant No. 4 Vimalbai was valid and legal as the first marriage was not subsisting on the day when the defendant No. 1 married the defendant No. 4. It was further held that the plaintiff, defendants 1 to 3 and 5,6 and 7 were entitled to 1/4th share each. The present first appeal is filed by the plaintiff against the aforesaid judgment and order of the learned Joint Civil Judge, Senior Division, Pune.

I have heard the learned Counsel for both the sides at length. The only controversy is the status of defendant No. 4-Vimalbai and the only issue, therefore, is whether the deceased Kesarbai, first wife of defendant No. 1, was legally and validly divorced by the defendant No. 1 as per the custom prevailing in his Dhor community ? The legality and validity of the second marriage of the defendant No. 1 with defendant No. 4 Vimalbai would thus depend upon the answer to the first question.

It is clear from the record that the defendant No. 1 had not only pleaded but also proved the custom of divorce by mutual consent. The defendant No, 1 had produced the Divorce Deed at Exh. 90 which is a registered document, 30 years old, coming from the proper custody. The said document was executed by the defendant No. 1 and his first wife Kesarbai. It is also found by the learned Judge that one Shri Katke, the brother-in-law of the defendant No. 1 and the main witness of the plaintiff had also signed the said Divorce Deed as a witness. He has clearly admitted that as per the custom in their community there used to be divorce in writing between the husband and wife without intervention of the Court and that it could be bilateral and not unilateral. The learned Counsel for the appellant has submitted that the divorce was not in accordance with the custom and, therefore, the divorce was not legal and valid and, therefore, the subsequent marriage between the defendant No. 1 and defendant No. 4 Vimalbai was null and void. She has submitted that the custom in fact was the divorce in the presence of Panchas and that in the present case though divorce was through the Divorce Deed it was not in the presence of Panchas and, therefore, it was not in accordance with custom. I am not able to accept this submission of the learned Counsel for the appellant for more than one reason. First of all this theory of divorce before Panchas was not pleaded but appears to have been put forth in cross-examination of the plaintiff by the defendant No. 2. It is also pertinent to note that the other witnesses have not supported the theory of custom of divorce in the presence of Panchas. The oral evidence in respect of the custom of divorce in the presence of Panchas is not worth believing. According to me, the defendant No. 1 has proved on the basis of the registered Divorce Deed dated 7.2.1951 that there was legal and valid mutual divorce between defendant No. 1 and the deceased Kesarbai in 1951. The legal efficacy of the said document has not been shaken. The said registered document which is a Divorce Deed will have to be accepted as legal and valid evidence in favour of the defendant No. 1 and, therefore, his second marriage with Vimalbai defendant No. 4 on 24.4.1951 cannot be called as illegal or null and void. As a consequence it further cannot be held that the defendants 5, 6 and 7 who are the sons of defendant No. 1 from the defendant No. 4-Vimalbai are illegitimate and that they are not entitled to any share in the property.

The defendant No. 1. has given a truthful version of the entire background. His marriage with the deceased Kesarbai had taken place in 1930. The plaintiff was born out of the said wedlock on 2.6.1945 and he was of course proceeded by defendant Nos. 2 and 3, who were born respectively in 1935 and 1947. Around 1947 it was found that the deceased Kesarbai was suffering from leprosy and was, therefore, admitted in Kondhawa Leprosy Hospital on 31.1.1953. Since the children were not grown up and since the disease of the deceased could not be cured and since there was no female member to look-after them the defendant No. 1 had decided to marry second time and therefore, he obtained divorce from Kesarbai on 7.2.1951 mutually. It is also borne from the record that the second wife defendant No. 4-Vimalbai had nursed and taken every care of the three children from Kesarbai. It is also clear from the oral and documentary evidence that even the deceased Kesarbai had agreed for such a divorce naturally in the interest of her own children. The legality and validity of the said registered document which is 30 years old cannot be doubted or challenged particularly when there is very weak evidence regarding the so-called custom of divorce in the presence of Panchas. The concept of mutual divorce is not unknown and it has now ripened into a statutory legal provision. In the particular background of the present case the divorce between the defendant No. 1 and defendant No. 4 is legal valid and there is no stigma of illegality attached merely because the divorce had not taken place in the presence of Panchas.

According to me, the learned Joint Civil Judge has rightly come to the conclusion considering all the facts and circumstances that there was no custom of giving divorce, Sodchitthi prevailing at any time in the community of parties to the suit before Panchas. The learned Judge has rightly held that the theory of so-called custom of divorce before the Panchas was clearly an afterthought occurred to the plaintiff during the course of cross-examination of the defendant No. 2 who was supporting the plaintiff. According to me, the learned Judge has rightly concluded that the divorce between the defendant No. 1 and Kesarbai was on the basis of the Divorce Deed and, therefore, the defendant No. 1 had performed his second marriage with Vimalbai. The learned Judge has derived all these conclusions from the evidence on record and he cannot be faulted with in his conclusions.

In the facts and circumstances of the present case I, therefore, hold that neither the provisions of the Bombay Prevention of Hindu Bigamous Marriage Act, 1946 nor the Bombay Divorce Act, 1947 will be attracted to strike down the validity or legality of the second marriage of defendant No. 1 with Vimalbai. In our case as held by me there was a legal and valid divorce between the defendant No. 1 and the deceased Kesarbai on 7.2.1951 on the basis of the Divorce Deed which was registered on 23.2.1951. The second marriage of the defendant No. 1 with Vimalbai had taken place on 24.4.1951 and therefore, it cannot be said that the second marriage of the defendant No. 1 with Vimalbai was in any way illegal or null and void within the meaning of any law as applicable to the parties. I further hold that the children born from the second marriage of the defendant No. 1 are their legitimate children and, therefore, they are also entitled to the share in the property of the defendant No. 1.

Since the learned Advocate for the appellant has given great emphasis only on the aforesaid points and had fairly submitted that if she fails on those points nothing would survive in the other aspect of the matter. The learned Trial Judge has gone into other issues and since there is no substantial challenge to the findings recorded by the trial Judge on other issues. I do not find any infirmity in the conclusion of the learned Trial Judge on the merits of the other issues. From the judgment it is clear that the learned Judge has considered all those issues in great details on the merits. The appeal, therefore, fails and is dismissed. Interim orders, if any, stands vacated. In the circumstances of the case there shall be no order as to costs.

The learned Advocate for the appellant prays for stay of the order by eight weeks. Mr. Mandlik has no objection if the order is stayed for eight weeks. Accordingly, I stay the order for eight weeks.

Parties to act on an ordinary copy of this order duly authenticated by the associate of this Court.