RANO DEVI Vs. RISHI KUMAR

JUDGEMENT

(1.) This appeal raises two important questions : One, about the interpretation of Sections 4 and 29 (2) of the Jammu and Kashmir Hindu Marriage Act, 1955 (hereinafter the Act), and the other, about the jurisdiction of a court, trial or appellate, trying a case under the Act, to entertain and adjudicate upon a plea of prior dissolution of a marriage in accordance with a custom governing the parties.

(2.) The appellant brought a petition under Section 9 of the Act against her husband, the respondent, for a decree for restitution of conjugal rights on the ground that he had withdrawn from her society without reasonable excuse and was no longer willing to accept her as his wife. The defence set up by the respondent was that she was a woman of bad character, who had been living in adultery with one Dalip Singh, as a consequence whereof, the marriage was dissolved by mutual agreement of the parties through execution of 'Tyagpattar' (Deed of divorce), pursuant to a custom governing the parties. It was further pleaded that the fact of her illicit relations with Dalip Singh was also admitted by the appellant in an affidavit sworn by her on 28-9-1971, as well as, in an agreement which she executed in favour of the respondent on 5-2-1972. One of the issues framed in the petition was : "Whether the petitioner out of her own free will obtained a divorce from the respondent as per custom between the parties and executed agreement dated 5-2-1972 and as such the present petition is not maintainable ? OPR"

(3.) The parties joined the issue. Whereas the respondent examined a few witnesses besides appearing in the witness box himself, the appellant examined none, so much so, that she did not even appear to record her own statement. Since she had denied being in possession of the 'Tyagpattar', the trial court allowed the respondent to lead secondary evidence in regard to its execution and contents. The trial court, on consideration of the evidence, held the customary divorce established and consequently dismissed the appellant's petition. The appellant has come up in appeal against this order.