MANIBEN Vs. RAMANBHAI CHHITUBHAI PATEL

JUDGEMENT

(1.) An interesting question which arises in this appeal is - as to whether the parties who at the time of marriage were residents of the former Baroda State which merged into the then Bombay State on 1st August 1949 and which later on 1st May 1960 on bifurcation became part of the State of Gujarat would be governed by the Baroda Hindu Nibandh Act also known as Hindu Act (Act 37 of 1937) (hereinafter referred to as the Baroda Act) or whether they would be governed by the Hindu Marriage Act 1955 (the Act) and the second question which arises is as to whether the provisions contained in the Baroda Act so far as they are inconsistent with any of the provisions of the Act would be overriden by the provisions of the Act.

(2.) The appellant-wife is the original plaintiff who filed a petition against the respondent-husband (original opponent) for restitution of conjugal rights on the ground that the husband had deserted the wife and had thus without reasonable cause withdrawn from her society The husband inter alia contended in his defence that there bad been a divorce between the parties as allowed by custom prevalent in the community of the parties as recorded in the deed of Fargat that is divorce ex. 57 executed on 26th December 1961 and that therefore there was no valid marriage in subsistence between the parties after the said deed and the wife was therefore not entitled to the relief sought. The wifes petition was dismissed on the ground that there was divorce as revealed by the said deed. Her appeal to the District court was also dismissed. In second appeal No. 571 of 1966 preferred by her to this court this court by an order dated 5th February 1970 while allowing the appeal and setting aside the decrees of both the courts remanded the matter to the trial court for disposal of the wifes application in accordance with law and the observations made in the judgment of this court which was delivered by J. B. Mehta J. (as he then was) on 5th February 1970

(3.) On remand the learned trial Judge on further particulars filed by both the parties raised ten issues and on the evidence led before him he came to the conclusion that the husband had proved that there was a custom in their community of getting divorce by executing a Fargat as alleged in para 9 of the particulars filed by the opponent-husband at ex. 170 He also came to the conclusion that the custom was ancient and certain and it had obtained force of law by continuous observance and that the fargat deed was passed by the parties as per that custom of the community. He also came to the conclusion that the wife had failed to prove that the disputed Fargat was null and void under the provisions of secs. 152 and 154 of the Baroda Act by its not being registered in the Nyayadhisi. He also held that the wife had failed to prove that the respondent-husband had without any reasonable excuse withdrawn from the society of the petitioner-wife. He therefore dismissed the petition.