# Anarkali v. Siyawati

- **Citation:** (2024) 5 ILRA 1447
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-17
- **Case number:** Second Appeal No. 237 of 2010
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anarkali-v-siyawati-51938
- **Pages:** 21

## Headnote

A. Hindu Marriage Act, 1955 - Sections 5, 7,
11, 13 & 29(2) - Customary Divorce - While
customary
divorce
is
not
explicitly
provided for u/s 13, the saving clause in S.
29(2) states that nothing in the Act affects
any rights recognized by custom to
dissolve a Hindu marriage, thus permitting
customary divorce - Customary Divorce -
Pleading and Proof: To claim a custom as a
rule of law, it must be pleaded and proved
with cogent evidence demonstrating that it
is ancient, continuously observed, and
recognized within the relevant community
- For proving a custom, not only the custom
1448 INDIAN LAW REPORTS ALLAHABAD SERIES
is required to be pleaded and proved but
it's prevalence and recognition for a
considerable long time through some
examples with proof (Paras 14, 15, 16)

B. In the instant case the only pleading
made in the plaint was that Late Rampal
had divorced defendant no.1 / appellant by
the custom of chhoda chhutti - No pleading
was made as to what was the custom
prevalent and since how long time such
'custom' was continuing and recognised in
the community of the appellant and her
husband with some instances. Trial court
held that no divorce had taken place.
However,
appellate
court
without
considering as to whether there was
sufficient pleading and proof of custom of
divorce through chhoda chhutti in the
community of the appellant or not, held
that there was custom of Chhoda Chhutti
in their community without any basis and
proof in accordance with law - Held - Since
it was not pleaded and proved that the
custom of chhoda chhutti was prevalent,
continuing
and
recognised
in
the
community of the appellant and Late
Rampal, it could not be held that there was
divorce between the appellant and Late
Rampal.

C. Procedure and Practice - Single appeal
against the common judgment and decree
dismissing Suit and allowing counter Claim
- Maintainability - In the instant case
Defendant/Appellant filed a counter claim
against
the
suit
filed
by
the
plaintiff/respondent
no.1
-
while
dismissing
the
suit
of
the
plaintiff/respondent no.1, the counter
claim of the appellant was allowed -
plaintiff/respondent no.1 filed only one
appeal against the judgment and decree
passed by the trial court - Held - though
every decree is required to be challenged
on being aggrieved after paying the
required court fees. However, in case one
appeal is filed challenging the common
judgment and decree passed in the main
suit and counter-claim paying required
court
fees,
it
will
not
vitiate
the
proceedings on this ground. (Para 47)

Allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,911 of 74,475. This is a partial read: ask again with offset=39911 for what follows._

5 All. Anarkali Vs. Siyawati
1447
of the Code and Substantial Question of Law
(B) is answered in the negative, holding that
the Lower Appellate Court has not
committed any illegality in reversing the
decree passed by the Trial Court, which it
has done after setting aside findings of the
Trial Court on all relevant issues, based on
cogent reasoning.

51. So far as Substantial Question
of Law (C) is concerned, evidence has been
adequately appreciated by the Lower
Appellate Court to come to the conclusion
that the plaintiff does not have a right of
frontage or access to the public road on the
northern side, as the frontage of the shop in
question, in the documents of title produced
by the plaintiff, lies to the south of the said
shop. To the north, there is land described as
parti. The Lower Appellate Court has opined
that no doubt defendant No.3 has no right to
put up a temporary structure there on land
that belongs to defendant No.1 and managed
by defendant No.2, but that infraction does
not afford a cause of action to the plaintiff to
sue for mandatory injunction against
defendant No.3, seeking removal of those
unlawful construction. The said right is
vested in defendant Nos.1 and 2. Since the
evidence shows, as concluded by the Lower
Appellate Court, that there is no frontage of
the shop in question on the northern side,
there is no deprivation of the plaintiff's
rights of access to the public road on that
side. The plaintiff may have had a cause of
action
to
object
to
the
temporary
construction raised on the northern side of
the shop in question, but he has not been
able to prove his case, either of frontage or
an appurtenance of that land enjoyed by
virtue of ownership of shop in question.
These findings have been recorded by the
Lower Appellate Court on the basis of
cogent evidence, about which there is no
perversity.
52. Substantial Question of Law (C)
is, therefore, answered in the negative and
against the plaintiff.

53. In the result, this appeal fails
and is dismissed with costs throughout.

54. Let a decree be drawn up
accordingly.

55. Let the records be returned to
the Trial Court by the Registry.
----------
(2024) 5 ILRA 1447
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.05.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 237 of 2010

Anarkali ...Appellant
Versus
Siyawati ...Respondent

Counsel for the Appellant:
Somesh Tripathi, Alok Kr. Misra, Manoj Kumar
Shukla, Mukesh Kumar Sharma, Vinod Kr. Yadav

Counsel for the Respondent:
Ankit Srivastava, Mohd. Ali, Ramesh Pandey,
Sudeep Seth

A. Hindu Marriage Act, 1955 - Sections 5, 7,
11, 13 & 29(2) - Customary Divorce - While
customary
divorce
is
not
explicitly
provided for u/s 13, the saving clause in S.
29(2) states that nothing in the Act affects
any rights recognized by custom to
dissolve a Hindu marriage, thus permitting
customary divorce - Customary Divorce -
Pleading and Proof: To claim a custom as a
rule of law, it must be pleaded and proved
with cogent evidence demonstrating that it
is ancient, continuously observed, and
recognized within the relevant community
- For proving a custom, not only the custom
1448 INDIAN LAW REPORTS ALLAHABAD SERIES
is required to be pleaded and proved but
it's prevalence and recognition for a
considerable long time through some
examples with proof (Paras 14, 15, 16)

B. In the instant case the only pleading
made in the plaint was that Late Rampal
had divorced defendant no.1 / appellant by
the custom of chhoda chhutti - No pleading
was made as to what was the custom
prevalent and since how long time such
'custom' was continuing and recognised in
the community of the appellant and her
husband with some instances. Trial court
held that no divorce had taken place.
However,
appellate
court
without
considering as to whether there was
sufficient pleading and proof of custom of
divorce through chhoda chhutti in the
community of the appellant or not, held
that there was custom of Chhoda Chhutti
in their community without any basis and
proof in accordance with law - Held - Since
it was not pleaded and proved that the
custom of chhoda chhutti was prevalent,
continuing
and
recognised
in
the
community of the appellant and Late
Rampal, it could not be held that there was
divorce between the appellant and Late
Rampal.

C. Procedure and Practice - Single appeal
against the common judgment and decree
dismissing Suit and allowing counter Claim
- Maintainability - In the instant case
Defendant/Appellant filed a counter claim
against
the
suit
filed
by
the
plaintiff/respondent
no.1
-
while
dismissing
the
suit
of
the
plaintiff/respondent no.1, the counter
claim of the appellant was allowed -
plaintiff/respondent no.1 filed only one
appeal against the judgment and decree
passed by the trial court - Held - though
every decree is required to be challenged
on being aggrieved after paying the
required court fees. However, in case one
appeal is filed challenging the common
judgment and decree passed in the main
suit and counter-claim paying required
court
fees,
it
will
not
vitiate
the
proceedings on this ground. (Para 47)

Allowed. (E-5)

List of Cases cited:

1. Loya Padmaja @ Venkateswaramma Vs Loya
Veera Venkata Govindarajulu;1999(6) ALD 413
AP HC

2.
Rameshchandra
Rampratapji
Daga
Vs
Rameshwari Rameshchandra Daga;(2005) 2 SCC
33

3. Dolly Rani Vs Manish Kumar Chanchal;
Transfer Petition (C) No(s).2043/2023

4. YamunaBai Anantrao Adhav Vs Anantrao
Shivram Adhav & anr.; (1988) 1 SCC 530

5. Smriti Singh @ Mausami Singh & ors. Vs State
of U.P. & anr.;Application U/S 482 No.23148 of
2022

6.
Badri
Prasad
Vs
Deputy
Director
of
Consolidation & ors.; AIR 1978 SC 1557

7. Smt. Shiramabai w/o Pundalik Bhave Vs
Captain Record Officer for O.I.C. records Sena
Corps

8. Abhilekh, Gaya, Bihar State; AIR 2023 SC 3920

9. Samar Kumar Roy(Dead) Through Legal
Representative(Mother) Vs Jharna Bera;(2017) 9
SCC 591

10. P.Kishore Kumar Vs Vittal K.Patkar;2023(41)
LCD 2817

11. Gurdev Kaur & ors. Vs Kaki & ors.;(2007) 1
SCC 546

12. Satyender & ors. Vs Saroj & ors.;2022 Live
Law (SC) 679

13. Narhari & ors. Vs Shanker & ors.;AIR 1953 SC
419

14. Rajni Rani & anr. Vs Khairati Lal & ors.;(2015)
2 SCC 682

15. Sri Gangai Vinayagar Temple & anr. Vs
Meenakshi Ammal & ors.;(2015) 3 SCC 624
5 All. Anarkali Vs. Siyawati
1449
16. State of Andhra Pradesh & ors. Vs B.Ranga
Reddy(Dead)
by
Legal
Representatives
&
ors.;(2020) 15 SCC 681

17. Nazir Mohamed Vs J.Kamala & ors.;(2020) 19
SCC 57

18. G.Amalorpavam & ors. Vs R.C. Diocese of
Madurai & ors.; (2006) 3 SCC 224

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Sri Alok Kumar Mishra
alongwith Sri Manoj Kumar Shukla, learned
counsel for the appellants, Sri Mohd. Ali,
learned counsel for the respondent no.1 and
Sri Rajnish Maurya, Advocate holding brief
of Sri Ankit Srivastava, learned counsel for
the respondent no.2. None appeared on
behalf of the respondent no.3, despite
sufficient service.

2. This second appeal, under
Section
100
of
Civil
Procedure
Code(hereinafter referred to as CPC), has
been filed against the judgment and decree
dated 05.03.2010 passed by the Additional
District Judge, Court No.7,Raibareli in Civil
Appeal No.86/2009; Smt.Siyawati versus
Smt. Anarkali and others, by means of
which the appeal has been allowed and the
judgment and decree dated 29.07.2009
passed by the Civil Judge(S.D.), Court
No.14,
Raebareli
in
Regular
Suit
No.411/2002;Siyawati versus Anarkali has
been set aside and the suit of the plaintiffrespondent no.1(hereinafter referred to as
the respondent no.1) has partly been decreed
and the declaration has been made that the
respondent no.1- Siyawati is legally wedded
wife of Late Rampal son of Shiv Balak. For
rest of the reliefs, the suit of the respondent
no.1 has been dismissed with cost. The
claim of the defendant-appellant(hereinafter
referred to as the appellant) has also been
dismissed with cost.
3. The husband of the appellant,
Late Rampal was working on the post of
peon in Baiswara P.G. College. He died-inharness on 20.10.1999. The respondent
no.1, claiming herself to be the wife of Late
Rampal, obtained the succession certificate
from
the
office
of
the
District
Magistrate,Raibareli on 25.11.1991. On the
basis of the said certificate, she got
compassionate appointment on 19.10.2000
in
the
defendant-respondent
no.3
institution(hereinafter referred to as the
respondent no.3). The appellant preferred
Misc. Case No.76/2000;Anarkali versus
Public in General for issuance of succession
certificate for release of G.P.F. amount to the
tune of Rs.85,642/- and the amount
deposited in Saving Bank Account of her
husband Late Rampal in the defendantrespondent no.2 Bank(hereinafter referred
to as the respondent no.2) to the tune of
Rs.5674/-, which was allowed by means of
the order dated 26.11.2000. The respondent
no.1 moved application under Order 1 Rule
10 C.P.C. in the said succession suit, which
was rejected on 22.12.2001. Thereafter, the
respondent no.1 filed Regular Suit No.411
of 2002 for declaration to the effect that she
be declared the legally wedded wife of Late
Rampal and therefore entitled for the G.P.F.
amount as well as the amount deposited in
the saving bank account of the deceased in
State Bank of India, Lalganj Branch. A
further declaration was sought to the effect
that order passed in Misc. case No.76/2000;
Anarkali versus Public in General on
26.11.2001 is null and void alongwith
consequential prayer. The appellant, after
putting appearance in the suit, filed a written
statement denying the averments made in
the plaint. She further filed a counter claim
for declaration to the effect that the
compassionate
appointment
of
the
respondent no.1 on 19.12.2000 in the
respondent no.3-College as wife of Late
1450 INDIAN LAW REPORTS ALLAHABAD SERIES
Rampal be declared null and void alongwith
consequential prayer. The respondent no.3
also filed its written statement admitting that
the respondent no.1 has been given
appointment on compassionate ground on
the basis of succession certificate issued
from the District Magistrate, Raebareli. It
has also been admitted that the respondent
no.1 and the appellant both had applied for
the compassionate appointment.

4. During pendency of the suit, it
was amended, therefore the additional
written statement was filed by the appellant.
The replication to the written statement was
filed by the respondent no.1. On the basis of
the pleadings of the parties, 8 issues were
framed by the trial court, which are
extracted here-in-below:-

okn fcUnq
1- D;k ;g ?kksf"kr fd;s tkus ;ksX; gS fd
okfnuh Lo0 jke iky fuoklh xzke pknk i0]r0 ykyxat]
jk;cjsyh dh fookfgr iRuh gS ,oa Lo0 jke iky dh
e`R;q
i'pkr
th0ih0,Q0
dh
/kujkf'k
eq0
85642@&:0 ,oa cpr [kkrk la0 3281] Hkkjrh; LVsV
cSad 'kk[kk ykyxat] jk;cjsyh esa tek eq0 56741@&:0
izkIr djus dh vf/kdkfj.kh gS\
2- D;k ;g ?kksf"kr fd;s tkus ;ksX; gS fd
flfoy tt lh0 fM0 jk;cjsyh }kjk ikfjr vkns'k
fnukafdr 26-11-2000 izdh.kZ okn v0la0 la[;k
76@2000 vukjdyh cuke gj[kkl vke fu"izHkkoh gS\
3- D;k dksbZ okn dkj.k mRiUu ugha gqvk\
4- okfnuh fdl vuqrks"k dks ikus dh
vf/kdkfj.kh gS\
5- D;k okfnuh dk okn vkns'k 7 fu;e 11
tk0 nh0 ds izko/kku ds rgr fujLr gksus ;ksX; gS\
6- D;k oknh us U;k; 'kqYd dk vkdyu de
fd;k gS\
7- D;k okn esa पक्षकारों ds dqla;kstu dk nks"k
gS\
8- D;k izfrokfnuh la0 1 vius dkm.Vj Dyse
ds vk/kkj ij dksbZ vuqrks"k ikus dh vf/kdkfj.kh gS\

5. Certain documentary evidences
were filed by the respondent no.1 and the
appellant, which would be referred at the
relevant places. After considering the
pleadings of the parties and evidence
adduced before the trial court, the trial
court dismissed the suit of the respondent
no.1 by means of the judgment and order
dated 29.07.2009 and decreed the claim of
the respondent no.1 and declared that the
appointment of the respondent no.1 as
wife of Late Rampal in respondent no.3
institution is illegal and void.

6. Being aggrieved by the
judgment and decree dated 29.07.2009,
the respondent no.1 preferred Civil Appeal
No.86 of 2009. The first appellate court
after considering the pleadings of the
parties and affording opportunity of
hearing to the parties allowed the appeal
and set aside the judgment and decree
dated 29.07.2009 pased by the trial court
and decreed the suit of the respondent no.1
declaring the respondent no.1 as legally
wedded wife of Late Rampal and for rest
of the prayers dismissed the same. The
claim of the appellant has also been
dismissed. Hence the instant second
appeal has been filed.

7. The appeal was admitted by
means of the order dated 17.08.2010 on the
substantial question of law nos. 1 and 2 as
prayed by the appellant. By means of the
order dated 26.02.2013, the substantial
question of law no. 2 was not pressed,
accordingly, this Court had passed an order
that the parties are directed to confine their
arguments at the time of hearing on the first
substantial question of law only and the
second substantial question of law shall be
ignored as not pressed. Considering the said
orders, by means of the order dated
01.09.2022, this Court formulated one more
substantial question of law. By means of the
order
dated
10.11.2022,
this
Court
formulated one more substantial question of
5 All. Anarkali Vs. Siyawati
1451
law. As such following substantial questions
of law have been formulated by this Court in
this second appeal:-

"(i) Whether the suit of the plaintiff
respondent could be decreed by the first
appellate court in the absence of specific
finding that the plaintiff-respondent was the
legally wedded wife of late Rampal.
(ii) Whether the first appeal filed by
the
respondent
no.1-Siyawati
was
maintainable in view of the fact that the suit
and counter claim both were decided by the
common judgment dated 29.07.2009 by the
trial court?
(iii)Whether customary divorce was
not prevalent in the family of appellant and
family of the respondents and the findings
recorded by the lower court regarding
customary divorce of appellant with Late
Rampal was void and on this count the
judgment of the first appellate court cannot
be sustained and the judgment and decree of
the lower court is liable to be restored.?"

8. Learned counsel for the appellant
submitted that the appellant was the legally
wedded wife of Late Rampal and remained
as such till his death as there was no judicial
separation or divorce between them. There
was no custom of divorce by chhoda
chhutti in their Kuswaha community but
without framing any point of determination
in this regard, learned first appellate court
erred in law as well as on fact in holding that
there was divorce between the appellant and
her husband Late Rampal through the
custom prevalent in their community,
whereas neither any such custom was
prevalent in their community nor the same
was proved by either of the parties. He also
submits that the custom having force of law
is only admissible. Therefore unless the
custom is proved as per law it cannot be
accepted and enforced. Learned first
appellate court also failed to consider that
the appellant had preferred a suit for
maintenance under Section 125 Cr.P.C.
against
Late
Rampal,in
which
the
maintenance was allowed which was
regularly paid through cheques and Late
Rampal had also filed a suit under Section
25 of the Guardian and Wards Act against
the appellant for custody of their minor
daughter. He further submitted that first
appellate court has recorded contrary
findings in regard to the issues no.1 and 2
and has failed to consider the statement on
oath of the respondent no.1, who appeared
as PW1 that it is true to say that Siyawati
was legally wedded wife of Late Rampal till
his death, which is in fact the admission on
the part of the respondent no.1 and in view
of this admission, as per Hindu Law he
could not have married another woman
during his lifetime. He further submitted that
the appellant is nominee in the service book
of her husband, which is still intact. The
amount of G.P.F. of the husband of the
appellant has also been paid to the appellant
on the basis of succession certificate issued
by the competent court of law.He also
submitted that the appellant had filed a
counter claim against the suit filed by the
respondent no.1 and while dismissing the
suit of the respondent no.1, the counter
claim of the appellant was allowed but only
one appeal was filed against the judgment
and decree passed by the trial court therefore
it was not maintainable and liable to be
dismissed on this ground alone. Thus, the
submission of learned counsel for the
appellant is that judgment and decree passed
by the first appellate court suffers from
manifest error of law and findings recorded
by it are erroneous and perverse and it is
liable to be set aside by this Court.

9. He relies on Yamanaji H. Jadhav
versus Nirmala; (2002) 2 SCC 637,
1452 INDIAN LAW REPORTS ALLAHABAD SERIES
Rameshchandra Rampratapji Daga versus
Rameshwari Rameshchandra Daga;(2005)
2 SCC 33,State of Andhra Pradesh and
Others versus B.Ranga Reddy(Dead) by
Legal Representatives and Others;(2020)
15 SCC 681,Rajni Rani and Another versus
Khairati Lal and Others;(2015) 2 SCC 682,
YamunaBai
Anantrao
Adhav
versus
Anantrao
Shivram
Adhav
and
another;(1988) 1 SCC 530,Gurdev Kaur
and Others versus Kaki and Others;(2007)
1 SCC 546,P.Kishore Kumar versus Vittal
K.Patkar;2023(41) LCD 2817, Samar
Kumar
Roy(Dead)
Through
Legal
Representative(Mother)
versus
Jharna
Bera;(2017) 9 SCC 591, Smt. Shiramabai
w/o Pundalik Bhave versus Captain
Record Officer for O.I.C. records Sena
Corps Abhilekh, Gaya, Bihar State; AIR
2023 SC 3920 and a coordinate Bench
judgment of this Court in the case of Smriti
Singh Alias Mausami Singh and 3 others
versus
State
of
U.P.
and
Another;Application U/S 482 No.23148 of
2022 .

10. Per contra, learned counsel for
the respondent no.1 submitted that the
appellant was divorced by her husband late
Rampal as per the custom prevalent and
recognised in their community, which was
proved by the statement of D.W.2 i.e.
witness produced by the appellant and after
divorce from the appellant, her husband had
married
to
the
respondent
no.1
in
accordance with law and the custom in the
community. Therefore it cannot be said that
the marriage of respondent no.1 with her
husband late Rampal was void. He further
submitted that the respondent no.1 was
appointed in the respondent no.3 institution
on the basis of the succession certificate
issued by the District Magistrate under
Dying-in-Harness in place of her husband in
accordance with law on 28.09.2000. He also
submitted that the respondent no.1 has three
children out of the wedlock with Late
Rampal. Thus, the submission is that the
trial court had wrongly and illegally
dismissed the suit filed by the respondent
no.1, which has rightly and in accordance
with law been allowed by the first appellate
court after considering the pleadings of the
parties and evidence adduced before the trial
court. Therefore the judgment and decree
passed by the first appellate court does not
suffer from any illegality or error. On the
basis of above, submission of learned
counsel for the respondent no.1 is that the
substantial questions of law formulated by
this Court does not arise in this appeal and
the appeal has been filed on misconceived
and baseless grounds, which is liable to be
dismissed with cost.

11. He relies on Satyender and
Others versus Saroj and Others;2022 Live
Law (SC) 679, State of Andhra Pradesh
and Others versus B.Ranga Reddy(Dead)
by
Legal
Representatives
and
Others;(2020) 15 SCC 681,Sri Gangai
Vinayagar Temple and Another versus
Meenakshi Ammal and Others;(2015) 3
SCC 624,Nazir Mohamed versus J.Kamala
and Others;(2020) 19 SCC 57,Gurdit Singh
versus Mst. Angrez Kaur Alias Gej Kaur
alias
Malanand
Others;1968
AIR
142,,Badri Prasad versus Deputy Director
of Consolidation and Others; AIR 1978 SC
1557,Narhari and others versus Shanker
and
Others;AIR
1953
SC
419,Smt.
Nirmala and others versus Mamta and
others;FAM No.143 of 2017 of Chattisgarh
High Court, Bilaspur,Loya Padmaja @
Venkateswaramma versus Loya Veera
Venkata Govindarajulu;1999(6) ALD 413
of Andhra Pradesh High Court and
G.Amalorpavam and others versus R.C.
Diocese of Madurai and Others;(2006) 3
SCC 224. .
5 All. Anarkali Vs. Siyawati
1453
12.

I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

13. The respondent no.1 filed suit
stating that the appellant was the legally
wedded wife of Late Rampal. Late Rampal
had desolved the marriage with her
according to the custom of chhoda chhutti
prevalent and recognised in their community
22 years back. Thereafter, he had married
with the respondent no.1 about 11-12 years
back according to the customary rights and
ceremonies prevalent in the community.
Therefore the first question to be considered
in this case is as to whether the custom of
Chhoda Chhutti was prevalent, continuing
and recognised in the community of the
appellant and her husband or not and if it
was
prevalent,
and
continuing
and
recognised,the marriage of the appellant
with Late Rampal was desolved with the
said custom of chhoda chhutti or not.

14. As per Section 5 of the Hindu
Marriage Act 1955(hereinafter referred to as
the Act of 1955), the first condition of the
conditions for Hindu Marriage is that the
marriage may be solemnized between two
hindus if neither of the party has spouse
living at the time of marriage. The exception
to it is if a person has got divorce, in
accordance with law. Section 13 of the Act
of 1955 provides as to how a marriage may
be desolved. Therefore a person whose
marriage has been desolved in accordance
with law is entitled to remarry. Though the
customary divorce is not provided under
Section 13 of the Act of 1955, however, as
per Saving clause provided under Section
29(2),it will not affect any right recognised
by custom to obtain dissolution of a Hindu
Marriage, as such the customary divorce is
permissible, if it is recognised. Section 29(2)
is extracted hereinbelow:-
"(2) Nothing contained in this Act
shall be deemed to affect any right
recognised by custom or conferred by any
special enactment to obtain the dissolution
of a Hindu marriage, whether solemnized
before or after the commencement of this
Act".

15. The 'custom' has been defined
in Sub-section(a) of Section 3 of the Act of
1955, which is extracted hereinbelow:-

3. Definitions.-In this Act, unless
the context otherwise requires,-
 (a) the expressions "custom" and
"usage" signify any rule which, having been
continuously and uniformly observed for a
long time, has obtained the force of law
among Hindus in any local area, tribe,
community, group or family:
Provided that the rule is certain and
not unreasonable or opposed to public
policy; and
Provided further that in the case of
a rule applicable only to a family it has not
been discontinued by the family;

16. In view of above, the expression
'custom' signify any rule which, having been
continuously and uniformly observed for a long
time and recognised in a community, would
obtain the force of law among Hindus, provided
that the rule is certain and not unreasonable or
opposed to public policy. If it is in regard to a
family it is applicable only to a family, where it
has not been discontinued by the family.
Therefore for claiming a custom as a rule of law,
it has to be necessarily pleaded and proved by
cogent evidence that the same was ancient and
being continuously and uniformly been
observed for a long time and recognised in the
community of the person(s) claiming it.

17. The Andhra Pradesh High court,
in
the
case
of
Loya
Padmaja
@
1454 INDIAN LAW REPORTS ALLAHABAD SERIES
Venkateswaramma versus Loya Veera
Venkata Govindarajulu(supra), has held
that where there is a custom prevalent in a
community either for dissolution or for
performance of a marriage which is
accepted and recognised the same shall not
be affected by any provisions of the Hindu
Marriage Act 1955.

18. The Chattisgarh High Court, in
the case of Smt. Nirmala and others versus
Mamta and others(supra), has held that for
custom to have the colour of a rule of law, it
is necessary for the party claiming it to plead
and thereafter prove that such custom is
ancient. The Court also considered and
followed the judgment of the Hon'ble
Supreme Court, in the case of Gurdit Singh
versus Mst.Angrez Kaur(supra), in which it
has been held that when the existence of
custom has been proved in a community to
which the parties belong, in such case, the
custom of divorce would be saved and
would lead to a valid divorce.

19. The Hon'ble Supreme Court, in
the case of Yamanaji H. Jadhav versus
Nirmala(supra), has held that as per the
Hindu Law administered by courts in India
divorce was not recognized as a means to
put an end to marriage, which was always
considered to be a sacrament, with only
exception where it is recognised by custom.
Such a custom being an exception to the
general law of divorce ought to have been
specially pleaded and established by the
party propounding such custom since the
said custom of divorce is contrary to the law
of the land and which, if not proved, will be
a practice opposed to public policy.
Therefore there was an obligation on the
trial court to have framed the issue as to
whether there was proper pleadings by the
party contending the existence of a
customary divorce in the community to
which the parties belonged and whether
such customary divorce and compliance
with the manner or formalities attendant
thereto was in fact established in the case on
hand to the satisfaction of the court. The
Hon'ble Supreme Court further opined that
the lack of sufficient pleading in the plaint
or in the written statement would not in our
opinion permit the court to countenance the
plea of customary divorce unless and until
such
customary
divorce
is
properly
established in a court of law. The relevant
paragraph 7 is extracted here-in-below:-

"7.In the view that we are inclined
to take in this appeal, we do not think it is
necessary for us to go into the contentions
advanced by the learned counsel for the
parties in this case, because we find that the
courts below have erroneously proceeded on
the basis that the divorce deed relied upon
by the parties in question was a document
which is acceptable in law. It is to be noted
that the deed in question is purported to be
a document which is claimed to be in
conformity with the customs applicable for
divorce in the community to which the
parties to this litigation belong to. As per the
Hindu Law administered by courts in India
divorce was not recognised as a means to
put an end to marriage, which was always
considered to be a sacrament, with only
exception where it is recognised by custom.
Public policy, good morals and the interests
of society were considered to require and
ensure that, if at all, severance should be
allowed only in the manner and for the
reason or cause specified in law. Thus such
a custom being an exception to the general
law of divorce ought to have been specially
pleaded and established by the party
propounding such custom since said custom
of divorce is contrary to the law of the land
and which, if not proved, will be a practice
opposed to public policy. Therefore, there
5 All. Anarkali Vs. Siyawati
1455
was an obligation on the trial court to have
framed an issue whether there was proper
pleadings by the party contending the
existence of a customary divorce in the
community to which the parties belonged
and whether such customary divorce and
compliance with the manner or formalities
attendant thereto was in fact established in
the case on hand to the satisfaction of the
court. In the instant case, we have perused
the pleadings of the parties before the trial
court and we do not find any material to
show that prevalence of any such customary
divorce in the community, based on which
the document of divorce was brought into
existence was ever pleaded by the defendant
as required by law or any evidence was led
in this case to substantiate the same. It is
true in the courts below that the parties did
not specifically join issue in regard to this
question and the lawyers appearing for the
parties did orally agree that the document in
question was in fact in accordance with the
customary
divorce
prevailing
in
the
community to which the parties belonged
but this consensus on the part of the counsel
or lack of sufficient pleading in the plaint or
in the written statement would not, in our
opinion, permit the court to countenance the
plea of customary divorce unless and until
such
customary
divorce
is
properly
established in a court of law. In our opinion,
even though the plaintiff might not have
questioned the validity of the customary
divorce, the court ought to have appreciated
the consequences of their not being a
customary divorce based on which the
document of divorce has come into existence
bearing in mind that a divorce by consent is
also not recognisable by a court unless
specifically permitted by law. Therefore, we
are of the opinion to do complete justice in
this case. It is necessary that the trial court
be directed to frame a specific issue in
regard to customary divorce based on which
the divorce deed dated 26th of June, 1982
has come into existence and which is the
subject matter of the suit in question. In this
regard, we permit the parties to amend the
pleadings, if they so desire and also to lead
evidence to the limited extent of proving the
existence of a provision for customary
divorce (otherwise through the process of or
outside court) in their community and then
test the validity of the divorce deed dated
26.6.1982 based on the finding arrived at in
deciding the new issue."

20. The Hon'ble Supreme Court, in
the case of Rameshchandra Rampratapji
Daga versus Rameshwari Rameshchandra
Daga(supra), has declined to accept the
registered document of Chhor Chithhi from
the previous husband on the ground that the
existence of such customary divorce in
Vaish community of Maheshwaris has not
been established. The Hon'ble Supreme
Court has further held that a Hindu marriage
can be dissolved only in accordance with the
provisions of the Act by obtaining a decree
of divorce from the court.

21. In view of above, unless and
untill a 'custom' and it's prevalence,
continuance for a considerable long time
and recognition in the community concerned
etc. is specifically pleaded and proved by
cogent evidence before the court of law,in
case of dispute,the claim on the basis of said
custom cannot be accepted and no right will
accrue on the basis of said custom. For
proving a custom, not only the custom is
required to be pleaded and proved but it's
prevalence
and
recognition
for
a
considerable long time through some
examples with proof.

22. Adverting to the facts of the
present case, this Court finds that only
pleading made in the plaint is that Late
1456 INDIAN LAW REPORTS ALLAHABAD SERIES
Rampal had divorced defendant no.1 i.e. the
appellant by the custom of chhoda chhutti
prevalent and recognised in the community
but no pleading has been made as to what
was the custom prevalent and since how
long time such 'custom' was continuing and
recognised in the community of the
appellant and her husband with some
instances and when there was no pleading it
could not have been proved and in fact not
proved. Not even a single instance of it's
existence and observance has been shown.
The appellant has specifically denied the
pleadings in this regard. It has further been
stated in the additional statement that Late
Rampal had not divorced the appellant in his
life time through any custom or competent
court. The trial court, after considering the
pleadings of the parties and evidence
adduced before it, has held that no divorce
had taken place between Late Rampal and
Anarkali i.e the appellant. The respondent
no.1, who appeared as P.W.1, has also
admitted in his statement on oath that it is
correct to say that till the death of Rampal,
Anarkali was his legally wedded wife and she
would not be able to tell as to whether Anarkali
and Rampal were divorced or not. She has
stated about divorce of Anarkali and Rampal
on the basis of information given by Rampal.
D.W.2. Kali Babu has also stated that he
knows Anarkali and Late Rampal. They
remained as husband and wife throughout his
life and there was no divorce between Smt.
Anarkali and Rampal through court or
community. However, learned appellate court
without considering as to whether there was
sufficient pleading and proof of custom of
divorce through chhoda chhutti in the
community of the appellant or not, only
considering the plea of the respondent no.1
and on the basis of the evidence of the real
brother of Late Rampal, P.W.2 Rajaram and
statement of D.W.2-Kali Babu that there is
custom of Chhoda Chhutti in their community
without any basis and proof in accordance
with law, held that chhoda chhutti as
dissolution of marriage was prevalent in the
caste and community of the appellant, whereas
as to whether it was a custom prevalent and
recognised in the community or not has not
been proved.

23. Learned appellate court has also
failed to consider the admission on the part of
the respondent no.1 in regard to continuance
of the marital relations between the appellant
and Late Rampal till his death. Merely,
because the husband and wife were not living
together for a long time, it cannot be said that
there was divorce between them. Learned
appellate court has also failed to consider the
admission of Late Rampal recorded in the
written statement filed by him in a petition
under Section 125 Cr.P.C. filed by the
appellant for maintenance. Though it may not
be of much evidentiary value but when
considered in the light of evidence in the
present case, it strengthens it.

24. In view of above, since it could
not be pleaded and proved that the custom
of chhoda chhutti was prevalent, continuing
and recognised in the community of the
appellant and Late Rampal, merely on the
basis of statement of P.W 2 that Late Rampal
had divorced the appellant through Chhoda
Chhutti before the community is not
sufficient to hold that the appellant and Late
Rampal were divorced through the said
custom, whereas P.W. 2 also failed to
disclose the persons who were present at the
time of alleged divorce through the said
custom and as to how the custom was
performed. Therefore also it could not have
been held that there was divorce between the
appellant and Late Rampal.

25. Now the question arises that if
the 'custom' of Chhoda Chhutti for divorce
5 All. Anarkali Vs. Siyawati
1457
could not be proved by adducing cogent and
convincing evidence by the respondent no.1,
as to whether the respondent no.1 could
have been said to be legally wedded wife of
Late Rampal.

26. Section 5(i) of the Act of 1955
provides
that
the
marriage
may
be
solemenized between any two Hindus if
neither party has a spouse living at the time
of the marriage. Therefore since the legally
wedded wife of Late Rampal i.e. the
appellant was alive throughout his life time,
Late Rampal could not have married to any
other woman or the respondent no.1. The
marraige
of
Late
Rampal
with
the
respondent no.1 even if held, cannot be said
to be a legal and valid marriage in the eyes
of law, giving her status of legally wedded
wife of Late Rampal and benefits and rights
of same. Section 11 of the Act of 1955
provides about void marriages, according to
which
any
marriage
solemnized
in
contravention of conditions specified in
clauses (i), (iv) and (v) of section 5 is void.
Therefore even if the marriage was
solemnized
by
Late
Rampal
during
subsistence and life of the appellant, who
was admittedly the legally wedded wife of
Late Rampal throughout her life time, the
marriage would be void.

27. Even otherwise, it has to be seen
as to whether the marriage of the respondent
no.1 with Late Rampal was in accordance with
Hindu law or not. Sub-Section (i) of Section 7
of the Act of 1950 provides that the Hindu
marriage may be solemnized in accordance
with the customary rites and ceremonies of
either party thereto. Sub-Section (2) provides
where such rites and ceremonies include the
'Saptapadi' (that is, the taking of seven steps by
the bridegroom and the bride jointly before the
sacred fire), the marriage becomes complete
and binding when the seventh step is taken.
Therefore one who claims that he/she was
married in accordance with the rites and
ceremonies of Hindus, if a dispute is raised,
he/she will have to plead and prove what were
the rites and ceremonies and as to whether
such rites and ceremonies include 'Saptapadi'
or not and if includes, the 'Saptapadi' was
performed or not. Normally the 'Saptapadi'
before the sacred fire is an essential ceremony
in Hindus and in absence of such ceremony,
the Hindu marriage cannot be said to have
been performed in accordance with law.

28. In regard to the claim of marriage
of
the
respondent
no.1
with
Late
Rampal,respondent no.1 has pleaded in his
plaint that Rampal was of the caste of
respondent no.1 and he had married to the
respondent no.1 in accordance with the
customs prevalent in their community and
their marriage was recognised by their family
community and society. However, there is no
pleading that what were the customary rights
and ceremonies in the family and community
of Late Rampal and the respondent no.1. It has
also not been pleaded as to whether 'Saptapadi'
was included in the rights and ceremonies of
the family and community of the respondent
no.1 and Late Rampal or not, and if it was
included, as to whether it had taken place or
not. The respondent no.1 in his statement on
oath recorded on 28.03.2007 has stated that
she had married with Rampal 15-16 years
back. It has also been pleaded that respondent
no.1 and Late Rampal were living together as
husband wife during their life time and their
relationship as husband and wife was
recognised by their family and community but
it cannot be said on the basis of these pleadings
and evidence on record that they were legally
wedded in accordance with law. P.W.2 and
P.W.3 also could not prove it.

29. The Hon'ble Supreme Court, in
a recent judgment of Dolly Rani versus
1458 INDIAN LAW REPORTS ALLAHABAD SERIES
Manish
Kumar
Chanchal;
Transfer
Petition (C) No(s).2043/2023, has held that
there has to be hindu marriage in accordance
with Section 7 of the Act in-as-much as there
must be a marriage ceremony which has
taken
place
between
the
parties
in
accordance
with
the
said
provision.
Although the parties may have complied
with the requisite conditions for a valid
hindu marriage as per Section 5 of the Act
but in absence of there being a Hindu
marriage in accordance with Section 7 of the
Act i.e. solemnization of such marriage
there would be no hindu marriage in
accordance with law. It has further been held
that in absence of any Hindu marriage as per
the provisions of law, the man and woman
cannot acquire status of being husband and
wife to each other. It has further been held
that there should not only be compliance of
the conditions as prescribed under Section 5
of the said Act but also the couple must
solemnize a marriage in accordance with
Section 7 of the Act and the critical
conditions for solemnizing a hindu marriage
should be assiduosly, strictly and religiously
followed.