BASAWANEWA BALAPPA GANDIGWAD Vs. BALAPPA SHIVAPPA GANDIGWAD

JUDGEMENT

(1.) THE plaintiff in this case sued for restitution of conjugal rights and made his wife defendant No.1 and her mother defendant No.2. He alleged that he had been married to her for many years and that she had borne him five children but was now living with another man by name Bhimappa and refused to return to him. THE wife contended that she had been divorced by her husband many years ago and since then she married Bhimappa and had borne him four children. THE trial Judge held that the divorce was proved and that therefore the plaintiff could not bring this suit. In appeal the District Judge held that there was no custom of divorce proved among Jains, to which caste the parties belonged, that the fact of this particular divorce was not proved, and that the plaintiff must therefore get a decree. THE defendant comes in second appeal.

(2.) IT is contended as a point of law that the learned District Judge has overlooked certain important evidence in the case and that that evidence, taken in conjunction with the evidence which the District Judge has not ignored, proves that the divorce took place. The defendant alleged the existence of a deed of divorce which she said had been given by the plaintiff to her cousin and had been then given by her cousin to her present husband. That deed is said to be lost. The learned District Judge says that there is no evidence apart from the alleged existence of a lost deed of divorce to substantiate the allegation of the divorce having taken place. In addition to that evidence there is some circumstantial evidence, namely, the undoubted fact that the defendant and her present husband did go through a form of marriage, that they are recognised as married by their neighbours, that the children born during the continuance of that marriage are recognised as the children of that marriage, and that the names of those children have been entered in the birth register as the children of the defendant's present husband. IT is suggested that the learned District Judge has ignored this evidence. In my opinion he has not ignored it. He refers to it, but says that although there is normally a presumption that a marriage ceremony is valid, that presumption cannot exist in a case like the present, where there has admittedly been a former marriage, where the husband of the former marriage is alive, and where that husband still claims the defendant to be his wife. In other words the learned Judge holds that the existence of a second marriage does not prove that a divorce took place. I entirely agree. We have the fact that a second marriage took place; but even if we assume that the defendant is telling the truth when she says that her last four children are the children of her second husband, and even if we assume that there really was a deed of divorce, I still do not think that that is enough to prove that there was an actual divorce. IT is not as if divorces were recognised by the Hindu law in general. Even assuming that divorce is recognised by the Jain caste, which in fact the learned District Judge held to be not proved, still it is a matter outside the ordinary Hindu custom, and one would expect better evidence of it than a mere allegation of the existence of a deed of divorce which has now been lost. No one speaks to any ceremony of divorce, and no one speaks to any deed or words of the divorcing husband apart from his having handed a deed of divorce to his wife's cousin.