Customary Hindu divorce must be specifically pleaded and proved; a Talaknama alone cannot dissolve marriage.

The plaintiff, Bhindro, sought a declaration that defendant No. 1, Kaunto, was not the legally entitled heir of deceased Shiridhar because Shiridhar had divorced her through a Talaknama dated 21 May 1976, after which she allegedly married Shiv Ram and defendant No. 2 was born from that marriage.

The plaintiff further claimed ownership and possession of the suit land under Shiridhar’s registered Will dated 11 September 1997 and sought cancellation of revenue mutations attested in favour of the defendants, along with permanent injunction.

The defendants denied the alleged divorce, contending that the parties were governed by the Hindu Marriage Act, 1955, that no customary divorce had been pleaded or proved, and that the Will was not genuine.

The trial Court held that the alleged divorce deed was invalid, the plaintiff had failed to prove the alleged subsequent marriage and parentage of defendant No. 2, and the Will was surrounded by suspicious circumstances; it consequently dismissed both the suit and the counterclaim.

On appeal, the District Judge held that defendant No. 1 was not proved to be Shiridhar’s legally wedded wife, accepted the execution of the Will, and decreed the plaintiff’s suit.

The defendants thereafter filed the present second appeal, which was admitted on three substantial questions of law concerning the customary divorce deed, the relief granted on the basis of the pleadings and admissions, and the validity of the Will.

1. Whether the Talaknama dated 21 May 1976 constituted a valid divorce when the parties were Hindus governed by the Hindu Marriage Act, 1955, in the absence of a pleaded and proved custom permitting such divorce?

2. Whether the First Appellate Court could grant relief on the basis of the defendant’s pleadings and admissions, notwithstanding the absence of an expressly pleaded alternative case by the plaintiff?

3. Whether the registered Will dated 11 September 1997 was duly executed and proved in accordance with law, despite the alleged suspicious circumstances and the objections under Section 63 of the Indian Succession Act, 1925?

The Court applied Sections 11, 13 and 29(2) of the Hindu Marriage Act, 1955, holding that a Hindu marriage may be dissolved only in accordance with the statutory scheme or a custom specifically recognised and preserved by law; any customary divorce must be specifically pleaded and proved.

Relying on Yamanaji H. Jadhav v. Nirmala, Subramani v. M. Chandralekha and Sanjana Kumari v. Vijay Kumar, the Court held that a divorce deed by itself cannot terminate a Hindu marriage unless the underlying custom is established.

Under Srinivas Ram Kumar v. Mahabir Prasad, a Court may grant relief on an alternative case expressly admitted and relied upon by the defendant where no prejudice is caused.

The validity of the Will was governed by Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872: the testator must execute the Will and it must be attested by at least two witnesses, with at least one attesting witness proving due execution.

The principles in H. Venkatachala Iyengar v. B.N. Thimmajamma, Meena Pradhan v. Kamla Pradhan and Gurdial Singh v. Jagir Kaur require the propounder to dispel legitimate, real and inherent suspicious circumstances.

Finally, under Section 100 CPC, the High Court in second appeal cannot reappreciate findings of fact unless they are perverse, based on no evidence, or legally unsustainable.

The Court held that the plaintiff had neither pleaded nor proved any community custom permitting divorce through a Talaknama. Consequently, the document dated 21 May 1976 did not sever the marital relationship between Shiridhar and defendant No. 1 under Hindu law.

Nevertheless, the First Appellate Court was entitled to consider defendant No. 1’s own admission that another woman, Begmu, was Shiridhar’s wife; the status of the defendants as Shiridhar’s legal heirs had also been directly put in issue, so the appellate finding did not travel beyond the pleadings or issues.

As to the Will, the evidence of the scribe and attesting witness established that the Will was read over and explained to Shiridhar, that he signed it, and that the witnesses thereafter signed in his presence.

The alleged omission of Shiridhar’s wife’s name and the plaintiff’s presence at the time of execution did not constitute inherent or legitimate suspicious circumstances.

The Court also noted that the defendants had not specifically pleaded the alleged suspicious circumstances and that the First Appellate Court’s finding regarding due execution was a finding of fact supported by evidence.

In the absence of perversity, the High Court could not interfere with that finding in second appeal.

The unraised plea regarding the legitimacy of defendant No. 2 under Section 16 of the Hindu Marriage Act could not be adjudicated because the High Court’s jurisdiction was confined to the substantial questions of law framed under Section 100 CPC.

It upheld the First Appellate Court’s authority to rely on the defendant’s admissions and to find that defendant No. 1 was not proved to be Shiridhar’s legally wedded wife.

It further upheld the finding that Shiridhar’s registered Will was duly executed and proved and that no legally sufficient suspicious circumstance justified its rejection.

The defendants’ second appeal was dismissed, the appellate decree in favour of the plaintiff was maintained, and the pending applications, if any, were also dismissed.