Gupta, J. - (1.) THIS second appeal by the defendant has come before us in consequence of an order of reference passed by Asthana, J. After hearing learned counsel for the parties at some length we have come to the conclusion that this appeal must be allowed, the decree of the Court below set aside and the plaintiff's suit dismissed.
(2.) THERE is no controversy that plaintiff-respondent Smt. Shakuntala Devi had been married to the defen dant-appellant Madho Prasad and that some time after the said marriage, re lations between them deteriorated. In 1963 the plaintiff filed the suit which has given rise to this appeal. The case set forward by her was that her hus band started treating her cruelly and about three years earlier she was turn ed put by the appellant, who developed illicit connection with other women. She claimed maintenance at Rs. 40/- per month. In defence it was pleaded, inter alia. _that by mutual consent of the plaintiff and the defendant a divorce had taken place and the terms of dis solution of the marriage tie were re duced in writing in the form of an agreement which was signed by both the plaintiff and the defendant and that in consequence thereof, plaintiff was not entitled to claim any maintenance. It was specifically pleaded in the writ ten statement that there was a cus tom prevalent in the community to which the parties belonged which was known as "Chhuttam Chhutta" and that the said custom permitted dissolu tion of the marriage tie with the mutual consent of the parties concerned. No specific issue appears to have been framed in regard to the question whe ther the custom referred to above pre vailed in the community to which the parties belonged. The parties led evi dence on the issues as framed which in cluded an issue as follows:- "Has the relation of husband and wife between the parties been dissolv ed?" The case of the plaintiff-respondent in regard to the agreement in writing set up on defendant's behalf, whereby according to the defendant, dissolution of the marriage tie had taken place by mutual consent, was that the plaintiff's signature on the said document had been obtained by practicing fraud. This case has been negatived by the court below and there is no controversy now that the defendant-appellant's case in regard to the execution of the said document must be accepted as correct. The trial court, however, negatived the defen dant's plea about dissolution of the marriage tie on the ground that no legal dissolution had taken place, with the result that the marriage tie must be deemed to subsist. Accordingly the trial court decreed the plaintiff's claim for maintenance at the rate of Rs. 30/-per month together with arrears in a sum of Rs. 100/-. In the appellate court it was urged on defendant's behalf that he should be allowed to lead evidence to establish the custom set forward by him in the course of his pleadings. Reference was made to the circumstance that an application had been made in the trial court on defendant's behalf seeking permission of that court to lead evidence to prove the custom set up by the defendant. This application had no doubt been made at a late stage of the case and the lower appellate court, therefore, took the view that the trial court was justified in rejecting the pray er made on defendant's behalf and pro ceeded to decide the case on such evi dence as had already been led on be half of the parties. Having agreed with the findings recorded by the trial court, the appellate court dismissed the ap peal. The defendant then filed the 2nd appeal before us.
(3.) THE appeal came -up for hear ing before Asthana, J. and considera ble arguments on defendant's behalf ap pear to have been advanced before him to persuade him to permit the de fendant to lead evidence to prove the custom of 'Chhuttam Chhutta" set for ward in his pleadings. On the 18th of December, 1968, Asthana, J. passed an order which shows that after hearing learned counsel for the parties at some length he came to the conclusion that it was necessary in the interest of jus tice and for pronouncing a satisfactory judgment to obtain a finding on the Question whether in the community known as 'Barai Chaurasiya' to which the parties belonged, there exist a custom, popularly known as "Chhuttam Chhutta", whereby a marriage could be dissolved by agreement of the spouses. The said order contained a direction to the court below to record a finding with permission to the parties to lead evidence bearing on the foresaid issue.;