Savitri Devi v. Manorama Bai

S.P. KHARE, J.

(1.) This is an appeal under Section 384 of the Indian Succession Act, 1925 by the first wife against the order granting succession certificate in favour of the second wife.

(2) Undisputed facts of the case are that appellant Savitri Devi was legally wedded wife of Bhagwan Singh Rai. This marriage had taken place in June, 1963. He remarried respondent No. 1 Manorama Bai on 6-11-1976. Respondent Nos. 2 to 4 are his children through Manorama Bai. He was employed in Railways as A.C.T. I. He died on 21-1-1993. The following amounts are payable to his heirs : @@114.htm@@ On his death Manorama Bai and her three children applied for succession certificate. That was registered as Case No. 61/93. Savitri Devi also applied for succession certificate at Tikamgarh. Her application was transferred to Jabalpur and it was registered as Case No. 1/96 .These two cases were consolidated. After recording the evidence these cases were disposed of by the common order. It was held that there had been divorce according to the caste custom between Savitri Devi and Bhagwan Singh Rai before he married Manorama Bai. Therefore, the succession certificate was granted in favour of Manorama Bai and her three children. The claim of Savitri Devi was rejected.

(3) In this appeal the main question is whether there was divorce between Savitri Devi and Bhagwan Singh Rai according to caste custom. After hearing the learned counsel for both the sides and scrutinising the documentary and oral evidence on record we are of the opinion that the finding of the Court below regarding the proof of customary divorce is perverse. It is admitted that Savitri Devi was legally wedded wife of Bhagwan Singh Rai. There is a strong presumption of continuity of the marriage. This is by virtue of illustration (d) to Section 114 of the Evidence Act. Once a state of thing is shown to exist there is a presumption of its continuance. The Supreme Court has held in Ambika Prasad v. Ram Ekbal Rai, AIR 1966 SC 605 [LQ/SC/1965/220] that the things once proved to have existed in a particular state are to be understood as persisting in continuing in that State, until the contrary is established by evidence either direct and circumstantial.

(4) The burden of proof is on Manorama Bai to establish dissolution of marital tie between Bhagwan Singh Rai and his first wife Savitri Devi. In the original petition filed by Manorama Bai there was no plea regarding the said divorce. After amendment of the application it was pleaded that there had been a customary divorce between the two. She relied upon the reply filed by Bhagwan Singh Rai in Criminal Case No. 27/77 of the Court of Chief Judicial Magistrate, Tikamgarh. That case w as registered on the basis of the petition under Section 125 of the Code of Criminal Procedure, 1973 by Savitri Devi claiming maintenance from her husband. Therefore, the statement made by Bhagwan Singh Rai in the reply cannot be said to be a proof of the divorce. On the contrary the claim of maintenance by Savitri Devi shows that she continued to assert that the marital bond subsists. There was an order allowing her petition and directing the husband to provide maintenance to her. This was on the premises that the marriage between the two continued.

(5) It is admitted that Bhagwan Singh Rai filed a petition under Section 10 of the Hindu Marriage Act against Savitri Devi ain 1977. That was a petition for judicial separation. It was registered as C.S. No. 20A of 1977. This petition was dismissed for default. Filing of this petition by the husband in the year 1977 for judicial separation runs counter to the hypothesis that the marriage tie had been dissolved according to the caste custom. In case there had been such a customary divorce there would have been no need to seek judicial separation through the Court. Savitri Devi continued to get maintenance allowance from her husband until his death.5A. Manorama Bai (PW 1) has stated in her evidence that she did not know of the marriage of Bhagwan Singh Rai with Savitri Devi. She did not have any personal knowledge whether there had been any divorce between the two. Damayanti (PW 3) is sister of Manorama Bai. She has deposed that she was informed by mother of Bhagwan Singh Rai that there had been divorce between Bhagwan Singh Rai and Savitri Devi. In cross-examination she has stated that she does not know how the divorce had taken place. She does not know if at all there had been any such divorce. This is the only evidence that has been led on behalf of Manorama Bai to prove the alleged customary divorce. There is no direct evidence on the point. Nobody has been examined who could depose that there had been any divorce between the two. There is absolutely no evidence to the effect that there was a custom prevalent in the caste which permitted such divorce.

(6) Savitri Devi (D.W. 1) has deposed that there was no divorce between her and her husband. She has further stated that there is no custom in her caste permitting such divorce. She was living at Tikamgarh as she was driven out by her husband from the matrimonial home after his remarriage with Manorama Bai in the year 1977. Premwati (DW 2) is cousin sister of Bhagwan Singh Rai. She has deposed Bhagwan Singh and Savitri were living as husband and wife in her house at Jabalpur up to the year 1977. There was no divorce between the two. There is no system of customary divorce in her caste. Mohansingh (DW 3) is also cousin of Bhagwan Singh Rai. He has also deposed that there is no custom in his caste permitting divorce and there had been no divorce between Savitri Devi and her husband.

(7) Section 29(2) of the Hindu Marriage Act, 1955 protects customary divorce. But the party relying on custom must prove the existence of custom and that it is ancient, certain, reasonable and is not opposed to public policy. He must further prove that the divorce has in fact taken place in conformity with that custom. In the present case after going through the evidence adduced by both the parties we are of the opinion that there was no divorce between Savitri Devi and her husband. There is no caste permitting such divorce. The marital tie between Savitri Devi and her husband continued till his death. The marriage between the two cannot be said to have been dissolved simply because Savitri Devi was living at Tikamgarh and Bhagwan Singh Rai was living with his second wife Manorama Bai. The marital knot is not dissolved so easily as has been alleged in the present case by Manorama Bai. There must be a definite proof of divorce according to the caste custom which is lacking in the present case.

(8) The marriage of Bhagwan Singh Rai with Manorama Bai took plalce during the subsistance of his marriage with Savitri Devi. It was in contravention of Section 5(1) of the Hindu Marriage Act. The marriage of Manorama Bai with Bhagwan Singh Rai was null and void in view of Section 11 of this Act. (Mohd. Ekram Hussain v. State of U.P., AIR 1964 SC 1625 [LQ/SC/1963/231] : (1964 (2) Cri LJ 590. A bigamous marriage is void. The Supreme Court reiterated in Yamunabai v. Anant Rao, AIR 1988 SC 644 [LQ/SC/1988/64] that all marriages covered by Section 11 are void from the very inceptian, and have to be ignored as not existing in law. Therefore, Manorama Bai is not entitled to the succession certificate in her own right.

(9) It was contended on behalf of the respondent No. 1 that the finding recorded in a summary proceeding cannot be set aside in appeal. Section 384 of the Indian Succession Act provides that the order of the Succession Court granting or refusing certificate is appealable. The High Court may by its order declare the person to whom the certificate should be granted. Therefore, the finding can be reviewed in appeal. In this case it has been found that the finding regardng the divorce of the first wife is perverse and therefore, it is liable to be corrected in appeal. It is, further, argued on behalf of the respondent No. 1 that the finding of the succession Court would not operate as res judicata in any other proceeding and therefore, the appellant instead of filing this appeal should have challenged this issue in a separate suit. It is true that a separate suit is maintainable for challenging the succession certificate. Section 387 of the Indian Succession Act enables the unsuccessful party to file such a suit. But the choice is with the party. He may elect to challenge it in appeal or in a separate suit.

(10) So far as respondents No. 2 to 4 Anup Rai, Vivek Rai and Ku. Bhawna are concerned they are entitled to have the succession certificate. Section 16 of the Hindu Marriage Act, 1955 comes to their rescue. Section 16 contains a legal fiction. It is by a rule of fictio juris that the law has provided that children, though illegitimate, shall, nevertheless, be treated as legitimate notwith-standing that the marriage was void or viodable. In view of the legal fiction contained in Section 16 of the illegitimate children, for all practical purposes including succession to the properties of their parents, have to be treated as legitimate. (P.E. Kanapravan Kalliani v. K. Devi, AIR 1996 SC 1963 [LQ/SC/1996/887] : (1996 AIR SCW 2337). Therefore, the order of succession certificate in favour of the three children of Bhagwan Singh Rai is proper.

(11) In view of the foregoing disccussion the appeal is partly allowed. The succession certificate be issued in favour of Savitri Devi, Anup Rai, Vivek Rai and Ku. Bhawna. Smt. Monarama Bai is not entitled to the succession certificate. The share of Savitri Devi in the amount of Rs. 1,70,528/- as mentioned in para 2 of this order will be to extent of 1/4th. No costs.Appeal partly allowed.