B.P. Dharmadhikari, J.
1. The husband has filed these two Second Appeals challenging the judgment dated 19.11.1993 delivered in Regular Civil Appeal Nos. 14 and 15 of 1991 by the Additional District Judge, Bhandara. By this common judgment, the Additional District Judge has allowed the appeal filed by the respondent . wife before it and dismissed the appeal filed by the husband in the matter.
2. The court of 2nd Jt. Civil Judge, Senior Division, Bhandara was approached in Hindu Marriage Petition No. 2/1984 by respondent wife under Section 23 of the Special Marriage Act, 1954 claiming judicial separation, under Section 37, claiming permanent alimony and maintenance. She also moved application under Section 38 and claimed custody of her son. The appellant husband who was respondent in that matter pointed out that vide Exh.61 the marriage between the parties was dissolved as per the customs prevalent in Kunbi community and hence there was no marriage subsisting. The Trial Court framed various issues and found that the respondent Wife could not establish that divorcee deed dated 18.10.1992 was obtained from her by exercising fraud or coercion. It also found that the respondent husband was not entitled to dissolve the marriage by mutual consent in customary way and the marriage was still subsisting and therefore, decree for judicial separation could not be granted. The wife as also husband filed appeals and the Appellate Court then allowed the appeal by wife and granted her decree of judicial separation and dismissed the appeal of husband and held that the marriage between the parties was still subsisting. The husband then filed these two appeals against the said common judgment and on 17.03.1994 the appeals have been admitted by mentioning ground Nos. 4 and 5 as substantial questions of law involved in the matter. During arguments the learned Counsel for husband also urged that ground No. 10 and 11 need to be considered in second appeal. The arguments advanced were as per those questions and hence the said questions are reproduced below for ready reference.
(4). Whether it is open to the parties whose marriage is solemnized under the Special Marriage Act by mutual consent to dissolve their marriage as per their custom ?
(5). Whether a marriage between Hindus can be legally dissolved as per the customs which are saved by the Hindu Marriage Act even though the marriage is solemnized under the Special Marriage Act?
(10). Whether it is within the jurisdiction of a Court acting as a First Appellate Court to travel beyond the pleadings of the petition and grant the relief of judicial separation on a ground not raised and pleaded by the petitioner ?
(11) Whether the Lower Appellate Court was justified in granting a decree for judicial separation on a ground on which the petition judicial separation was not presented to the Court and to which the appellant had no opportunity to meet and defend ?.
3. Advocate Shri Bhutada for appellant/husband has contended that the courts below have erred in not noticing that the Special Marriage Act did not repeal the custom of divorce prevailing amongst Kunbi community. He points out that on facts there is no dispute about existence of such custom and the Courts below have found that the custom is not available as the marriage is solemnized under Special Marriage Act. This approach is erroneous and contrary to the provisions of Special Marriage Act. It is further argued that as both the parties to the marriage are Hindu, Hindu Marriage Act is applicable and hence because of provisions of Section 4 read with 29[2], the custom of divorce prevalent in Kunbi community is protected. Therefore, the customary divorce obtained vide Exh.71 is legal and valid. He further states that Special Marriage Act also does not militates of such application of Hindu Marriage Act and hence the question needs to be answered infavour of the appellant husband. In relation to additional questions sought to be urged, the learned Counsel contends that the grounds for judicial separation not raised before the Trial Court have been looked into by the Appellate Court and therefore, there is jurisdictional error which needs to be corrected by this Court in Second Appeal. He invites attention to the consideration of this aspect in paragraph Nos. 14 and 15 of its judgment by the Lower Appellate Court.
4. In reply, Advocate Shri Bandebuche with Advocate Shri Tidke, has contended that the contention about custom being saved by the Special Marriage is erroneous is contrary to the express language of the Hindu Marriage Act. He contends that the provisions of Special Marriage Act cannot be read as amended in the light of Hindu Marriage Act. In support of his proposition he invites attention of the Court to consideration of this aspect by the Lower Appellate Court. He also states that before the Lower Appellate Court additional evidence was led and the Appellate Court has in paragraph Nos. 14 and 15 considered the said additional evidence and has granted the decree for judicial separation. In the alternative, he contends that the letter at Exh.60 in which the wife has been addressed as prostitute, is sufficient in the eye of law to sustain the decree for judicial separation.
5. With the assistance of both the learned Counsel, I have perused the judgments delivered by the Courts below.
6. In so far as the additional questions sought to be raised the learned Counsel for appellant/husband are concerned, it is apparent that the fact that there was additional evidence before the Appellate Court and certified copy of the birth extract Exh.44 and 45 were filed before the Appellate Court is not in dispute. The Lower Appellate Court in paragraph No. 14 has found that, in Exh.60 written by the appellant to respondent . wife he has branded the wife as prostitute. He could not bring any material on record to support said charge. It has been observed that such unfounded charges was height of mental cruelty and by itself was sufficient to grant a decree for judicial separation. Then there is reference of evidence of son Satish and it is found that he was too young to state about the marriage between the appellant and respondent No. 2 Sindhubai. It found that the essential ingredients of Hindu Marriage were not established to have taken place through his evidence and therefore, there was no second marriage with Smt. Sindhutai. However, in para No. 15 further evidence of Satish has been considered and it has been noted that the respondent No. 2 was staying with respondent No. 1 in same room and his evidence on those lines was not challenged. The Certified copy of birth extract Exh.44 and 45 revealed that a male child was born on 29.01.1992 to the said second wife from the present appellant and similarly a female child was born on 24.12.1989 and this was also not challenged in any way. It was found that thus husband had sexual intercourse with respondent No. 2 and therefore Section 23 read with Section 27 of the Special Marriage Act were attracted and decree for judicial separation could have been granted. It is to be noted that all this evidence has come before the Lower Appellate Court and thus there is no question of considering the presence or absence of such plea before the trial Court. The evidence was brought in accordance with law before the Lower Appellate Court and said procedure has not been challenged before me, I therefore, find that the additional questions sought to be urged by the appellant before me do not fall for consideration.
7. Coming to question Nos. 4 and 5, which are mentioned as substantial questions of law while admitting the appeals for final hearing, the Special Marriage Act is a legislation in force since 1954. It does not in any way prohibit Hindus from solemnizing marriage as prescribed therein. Section 18 which deals with registration of marriage celebrated in other forms under Special Marriage Act deals with effect of registration of marriage in said Chapter and it stipulates that from the date of such registration the marriage is deemed to be a marriage solemnized under Special Marriage Act and child born after the date of ceremony are deemed to be and always to be a legitimate child of their parents. Chapter IV which deals with consequence of marriage under Special Marriage Act. Section 19 states that member of undivided Hindu family shall be deemed to savour himself from such family, if the marriage is solemnized under Special Marriage Act. Section 21 mentions that succession to property of any person whose marriage is solemnized under Special Marriage Act and to the property of the issue of such marriage, has to be regulated by provisions of Indian Succession Act. In 1976 Section 21A has been added and it stipulates that where a marriage is solemnized under Special Marriage Act of a person who professes the Hindu, Buddhist, Sikh or Jaina religion Section 19 and 21 shall not apply. It is obvious that these provisions therefore, specifically protect the personal law applicable to the parties solemnizing marriage under Special Marriage Act. Special Marriage Act in its Section 28 contains procedure for obtaining divorce by mutual consent and for that purpose a petition for divorce is required to be presented to District Court by both the parties. Section 42 stipulates that nothing contained in Special Marriage Act, affects the validity of any marriage not solemnized under its provision and it does not either directly or indirectly affect the validity of any mode of contracting marriage. The specific provisions therefore clearly show that the legislature has taken care of situation and extent to which such marriage will affect or save the personal law and right of parties.
8. In this background, when Hindu Marriage Act 1955, is looked into, its Section 4 gives overriding effect to it, but then the same is subject to stipulations otherwise expressly provided in it. This text, rule or custom or usage immediately in force before commencement of Hindu Marriage Act cease to have effect with respect to any matter for which provision is made under Hindu Marriage Act. It's clause [b] stipulates that any other law in force immediately before commencement of Hindu Marriage Act ceases to have effect in so far as it is inconsistent with any of the provisions of Hindu Marriage Act. In this background when Section 29 is looked into, Section 29[2], stipulates that Hindu Marriage Act does not affect any right recognized by custom to obtain a dissolution of Hindu Marriage, whether such marriage is solemnized before and after its commencement. It is therefore, apparent that Section 29[2] protects the custom in relation to marriage which is solemnized under Hindu Marriage Act and it is difficult to read said provision to mean that it also enables Hindu couple contracting marriage under Special Marriage Act to fall back on the customs of the community.
9. As already mentioned above, the overriding effect given to the provisions of Hindu Marriage Act is save as otherwise expressly provided. In Section 29[4], it has been expressly mentioned that nothing contained in Hindu Marriage Act shall be deemed to affect the provisions contained in Special Marriage Act, 1954 with respect to the marriages between Hindus solemnized under that Act. It is therefore, apparent that in so far as the marriages between Hindus solemnized under Special Marriage Act are concerned, the provisions of Hindu Marriage Act, 1955 cannot be taken recourse to, to do something which is not provided for in Special Marriage Act. The Special Marriage Act does not permit divorce by mutual consent outside the court i.e. by following customs. If the arguments of learned Counsel for appellant/husband are accepted the mode of dissolving the marriage not contemplated by Special Marriage Act, 1954 is required to be read into, and it that is not permissible.
10. In view of this discussion, I find that the Courts below have correctly held that Exh.61 document of divorce privately executed between the parties has got no legal sanctity and marriage still subsists. The questions of law framed above are required to be answered against the appellant and in favour of the respondents. Both the appeals are therefore, dismissed with no order as to cost.