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divorce on plea of second marriage ? customary divorce ?= whether the marriage of the respondent and PW.2 was dissolved before the elders of their caste, according to PW.2, he himself and the respondent belonged to scheduled caste and customary divorce has been prevailing in their community. The respondent has examined RW.4 L. Malleswara Rao. He has categorically deposed that he and the respondent belonged to scheduled caste community and that customary divorce has been prevailing since time immemorial in their caste and that remarriages are also accepted and recognized in their community. During the course of arguments, it is not disputed that the customary divorce is prevailing in the scheduled caste communities in Andhra Pradesh. The respondent has also examined RW.3. RW.3 is the grand father of the respondent. He is also related to PW.2 Kanithi Jacob. Rw.3 has categorically deposed that PW.2 obtained divorce from the respondent and that he has also signed as a witness in the divorce deed in Ex.B1. He denied the suggestion that Ex.B1 is a fabricated document. Thus, the evidence on record proves that the respondent had obtained divorce from her former husband PW.2 before the elders of their community and the customary divorce is prevailing in their community. The version of the petitioner that he came to know about the earlier marriage of the respondent with Kanithi Jacob just before filing the petition for divorce also appears to be not correct. Admittedly, the marriage of the petitioner and the respondent was solemnized on 10.11.1997. Admittedly, the petition for divorce was filed in the year 1999, and it appears to be most unnatural and improbable to say that the petitioner could not come to know about the earlier marriage of the respondent with Kanithi Jacob for about two years. We have gone through the judgment of the learned Judge, Family Court. It is unfortunate to note that the learned Judge, Family Court, had simply extracted the evidence of all the witnesses one after another and then gave his conclusions which are not supported by any reason. It is the primary duty of the Court to examine the entire evidence in proper perspective and then analyze the same. Mere extracting the evidence of witnesses one after another and then simply saying that the evidence proves the case of one party cannot be said to be the proper method of appreciating the evidence. It is the duty of the Court to apply its mind and to draw just and reasonable conclusions from the evidence. The Court must examine whether the version of a witness is truthful or probable and whether the same is in conformity with the normal human conduct and acceptable. The Court must examine whether the version of a party is consistent with other oral and documentary evidence, whether a witness stood the test of cross-examination. When the Court examines the contradictions, it must ascertain whether the contradictions go to the root of the matter and whether the evidence is shaken in cross-examination and whether those contradictions make the version of a witness unacceptable and the witness unreliable and untrustworthy. Thus, a great responsibility lies on the Presiding Officer of a Court to analyze the evidence. The learned Judge, Family Court, gave his findings without assigning any valid reasons for his conclusions. All the conclusions must be arrived on evidence and for arriving to such conclusions valid reasons have to be assigned. Any order which is not supported by reasons on the face of it would become perverse order. In view of the above, it is clear that the impugned order passed by the lower Court cannot stand to scrutiny and the same is liable to be set aside. Accordingly, the same is set aside.

THE HON'BLE SRI JUSTICE N.V. RAMANA AND THE HON'BLE SRI B. CHANDRA KUMAR
Aerial view of Visakhapatnam, India.

Image via Wikipedia


F.C.A.No.90 of 2010 

04-03-2011 

Smt.Potnuru Sugunavani 

Potnuru Krupanandam 

Counsel for Appellant :Smt. M. Bhaskara Lakshmi 

Counsel for respondent : Sri K.A. Narasimham 

:Judgment: (per Hon'ble Sri Justice B. Chandra Kumar)

This appeal is directed against the order and decree dated 09.03.2009 made in
O.P. No. 510 of 1999 on the file of the Judge, Family Court, at Visakhapatnam,
whereby and whereunder the petition filed by the respondent herein seeking
divorce under Sections 18 and 19(4) of the Indian Divorce Act (for short 'the
Act') was allowed declaring the marriage of the appellant and the respondent
herein as null and void.
The appellant herein is the respondent before the Family Court and wife of the
respondent herein. The parties hereinafter will be referred to as they are
arrayed before the Family Court for the sake of convenience.
The petitioner filed the petition under Sections 18 and 19 (4) of the Act and
his case is as follows. The petitioner initially married one Mercy Shela
Prasanna Vani in the year 1986. They were blessed with two children. But,
subsequently, he filed OP No.136 of 1996 on the file of the District Court,
Visakhapatnam and obtained divorce from her in the year 1996. Subsequently, he
married the respondent on 10.11.1997 as per Christian customs and rites at
Subbarami Reddy Kalyana Mandapam, 
S. Kota Mandal, Vizianagaram District. They are blessed with a male child who
is named as Ajay, aged about 1 1/2 years.
The further case of the petitioner is that recently he came to know that the
respondent had married one Kanithi Jacob on 09.05.1990 at RCM Church, Balanki 
village, Vepada Mandal, Vizianagaram District and that she had not obtained
divorce from the said Kanithi Jacob. It is also his case that the respondent had
suppressed about her earlier marriage and the mediator L. Malleswara Rao also
did not inform him that the respondent had already married K. Jacob. It is also
his case that the respondent lodged a complaint against him under Section 498-A
of the IPC and that she has voluntarily left his company on 04.08.1999 and since
then living at S. Kota. It is also his case that he had reliably learnt that
the respondent has been living with her former husband. Thus, the main
contention of the petitioner is that since the marriage of the respondent with
K. Jacob was subsisting on the date of his marriage with the respondent, the
same is void. He sought a declaration that his marriage with the respondent is
null and void and also a decree of divorce on that ground.
The respondent filed a counter denying the allegations made by the petitioner.
Her case is that at the time of marriage her parents presented an amount of
Rs.25,000/-, Wrist Watch and Gold Ring to the petitioner towards dowry and that
subsequently he ill-treated her demanding additional dowry of Rs.25,000/- and
that even after she gave birth to a male child on 06.08.1998 the petitioner
continued to harass her and that ultimately the petitioner necked her out of his
house on 04.08.1999 and in the above circumstances she lodged a complaint to the 
Station House Officer, Steel Plant Police Station, Visakhapatnam, and a case in
Crime No.48 of 1999 under Section 498-A IPC was registered against the
petitioner. It is also her case that her marriage with one Jacob was performed
at his house and subsequently the same was dissolved as per their caste custom 
before their caste elders and that a divorce deed was also executed. It is also
her case that the said Jacob again married one Ramanamma and who gave birth to a 
female child namely Shailaja. She has denied the allegation that she has been
living with her former husband Kanithi Jacob. Thus, she has specifically denied
that her earlier marriage with Jacob was solemnized as per Christian rites and
customs at RCM Church, Balanki village on 09.05.1990 as alleged by the
petitioner.
The following point was formulated by the lower Court for consideration.
"Whether there are any grounds to declare the marriage of the petitioner and
respondent as null and void?"

On behalf of the petitioner, the petitioner himself was examined as PW.1 and
PWs.2 and 3 were examined and Exs.A1 to A7 were marked. On behalf of the 
respondent, the respondent herself was examined as RW.1 and RWs.2 to 4 were 
examined and Ex.B1 was marked. The summoned documents were marked as Exs.X1 to 
X6.
The learned Judge, Family Court, on appreciation of evidence, came to the
conclusion that the respondent had not obtained divorce from her former husband
namely K. Jacob (PW.2) and that she had married the petitioner suppressing her
earlier marriage with K. Jacob - PW.2 and that since her earlier marriage was
subsisting on the date of her marriage with the petitioner the same is null and
void.
 The main contention of the learned counsel for the respondent/appellant
herein is that though the respondent married the petitioner as per the rites and
customs of the Christian community, but she had taken to baptism just prior to
her marriage with the petitioner and prior to that she was a Hindu. It is also
his specific contention that PW.2 - K. Jacob was also a Hindu and that the
marriage of the respondent and Jacob was solemnized as per the Hindu rites and
customs and as both of them belonged to scheduled caste community, and that the 
customary divorce has been prevailing in their community. It is also his
submission that the respondent and her former husband i.e., K. Jacob had taken
divorce in their caste panchayat before their caste elders and Ex.B1 was
executed by the said Jacob which proves the divorce between the respondent and
the said Jacob. It is also his main submission that the respondent and PW.2
were not Christians and there was no Church at Balanki during the relevant
period and that the marriage certificate and extract of the marriage register
produced by the petitioner do not relate to the respondent and PW.2. It is also
vehemently argued that unless the petitioner proved that the respondent and PW.2
were Christians and their marriage was solemnized as per the rites and customs
of the Christian community the provisions of Indian Divorce Act do not apply to
them. 
His further submission is that the lower Court failed to consider that the
petitioner has failed to prove that the respondent and PW.2 were Christians
during the relevant period.
 Learned counsel for the petitioner/respondent herein submitted that the
petitioner produced Ex.X5 the marriage certificate and Ex.X6 extract of the
marriage register which proved that the marriage of the respondent and PW.2 was
solemnized in a Church as per the rites and customs prevailing in the Christian
community. It is also his submission that the petitioner has examined PW.2 who
is no other than the former husband of the respondent and PW.3 a Priest from the
Church and their evidence corroborate the version of the petitioner. It is also
his submission that a Christian marriage cannot be dissolved except by way of a
decree granted by the competent Court as per Sections 18 and 19 of the Indian
Divorce Act.
 The points that arise for consideration are; (1) Whether the evidence on
record proves that the marriage of the respondent and PW.2 was solemnized as per
Christian rites in RCM Church at Balanki? and
(2) Whether it was subsisting on the date of the marriage of the petitioner and
the respondent.
 According to PW.1, the respondent married one Kanithi Jacob as per the
Christian rites in RCM Church, Balanki. Admittedly, he had not attended the
said marriage. It has to be seen that the petitioner alleged that the
respondent continued her relationship with her former husband Kanithi Jacob.
But, surprisingly he has examined the said K. Jacob as PW.2 to support his case.
However, PW.2 has not supported the case of the petitioner. PW.2 has
categorically deposed that he is a member of scheduled caste. According to him,
he married the respondent in May 1990 and subsequently divorced her as per the
custom and usage prevailing in their community. It is also his specific case
that the respondent was studying 6th or 7th class at the time of his marriage.
According to him, there was no Church in Balanki during those days and that his
marriage with the respondent was never registered in that Church. According to
him, Ex.B1 is the divorce deed executed in the presence of his caste elders.
The petitioner has also examined PW.3, who is working as a Catholic Priest in
Vepada Church. According to PW.3, the entries at Sl.No.246 in the marriage
register maintained by Catholic Church, Vepada, discloses that the marriage of
Kanithi Jacob, S/o Thomas and Annamma was performed with Suragala Mary @ Suguna 
Vani, daughter of Prakasam and Sarojini on 09.05.1991. According to PW.3,
Father G. Mariya had performed the marriage as per the entries in the said
register and that the said Father G. Mariya is no more. He further deposed that
as per the entries in the marriage register he has prepared the marriage
certificate in Ex.X5. He further deposed that he does not know whether both
parties are Christians by the time of their marriage. He further categorically
deposed that Exs.X5 and X6 do not relate to Suragala Sugunavani, D/o Pydithalli
and Kanithi Jacob, S/o Appalaswamy, resident of S. Kota and Ballanki
respectively.
 According to PW.2, his name is Kanithi Nagamaiah Jacob and his father's
name is Pedda Appalaswamy and his mother's name is 
K. Parijamma. The recitals of Exs.X5 and X6 reveal that the name of the
bridegroom is Jacob Kanithi. The father's name of the bridegroom is shown as
Thomas and mother's name is shown as Annamma. So, admittedly, the names of the 
parents of PW.2 and the names of the parents of bridegroom shown in Exs.X5 and 
X6 are different. Therefore, it cannot be definitely said that the entries in
Exs.X5 and X6 as far as the bridegroom are concerned they pertain to PW.2.
Similarly, there is discrepancy between the names of the parents' of the bride
shown in Exs.X5 and X6 and the parents' names of the respondent. In Exs.X5 and
X6 the father's name of bride is shown as Prakasam and mother's name is shown as 
Sarojini. Of course, surname is shown as Suragala. But the father's name of
the respondent is Suragala Pydithalli. The mother's name of the respondent is
not brought on record. Therefore, it cannot be definitely said that the bride
referred in Exs.X5 and X6 Suragala Mary Sugunavani is no other than the
respondent herein. There is another discrepancy in Exs.X5 and X6, the age of
the bride is shown as 19 years. Of course, there is some correction in the
figure showing her age and also at the place of noting the year. The last
figure in '1991' seems to have been altered. The age of the respondent is shown
as 22 years as on the date of giving her evidence on 25.10.2000. Therefore, her
age must be around 13 years in the year 1991. But, admittedly, the age of the
bride is shown as 19 years in Exs.X5 and X6. The lower Court failed to consider
these discrepancies which are apparent on the face of the record. It has to be
seen that PW.3 himself has categorically deposed that Exs.X5 and X6 do not
relate to Suragala Sugunavani, D/o Pydithalli and Kanithi Jacob, S/o
Appalaswamy. 
When the respondent had taken a specific stand that she was not a Christian at
the time of her marriage with PW.2 and that their marriage was not solemnized as
per the Christian rites and customs, the petitioner ought to have produced
cogent evidence in support of his contention. Once the evidence on record does
not prove that the marriage of the respondent and PW.2 - Jacob was solemnized as
per the rites of the Christian community, the question of applying the
provisions of Divorce Act for dissolving their marriage does not arise. In view
of the same, the judgment relied on by the learned counsel for the
petitioner/respondent herein in George Sebastian @ Joy. V. Molly Joseph @ Nish1,
is clearly not applicable to the facts of the present case. In that case,
admittedly, the parties were Christians and their marriage was annulled by the
order of the Ecclesiastical Tribunal (or Church Court as it is referred to at
times) and it was held that a Christian marriage can be declared null and void
only by a decree of Court as per Sections 18 and 19 of the Divorce Act.
 Now coming to the next aspect whether the marriage of the respondent and
PW.2 was dissolved before the elders of their caste, according to PW.2, he
himself and the respondent belonged to scheduled caste and customary divorce has 
been prevailing in their community. The respondent has examined RW.4 L.
Malleswara Rao. He has categorically deposed that he and the respondent
belonged to scheduled caste community and that customary divorce has been 
prevailing since time immemorial in their caste and that remarriages are also
accepted and recognized in their community. During the course of arguments, it
is not disputed that the customary divorce is prevailing in the scheduled caste
communities in Andhra Pradesh. The respondent has also examined RW.3. RW.3 is 
the grand father of the respondent. He is also related to PW.2 Kanithi Jacob.
Rw.3 has categorically deposed that PW.2 obtained divorce from the respondent
and that he has also signed as a witness in the divorce deed in Ex.B1. He
denied the suggestion that Ex.B1 is a fabricated document. Thus, the evidence
on record proves that the respondent had obtained divorce from her former
husband PW.2 before the elders of their community and the customary divorce is
prevailing in their community.
 The version of the petitioner that he came to know about the earlier
marriage of the respondent with Kanithi Jacob just before filing the petition
for divorce also appears to be not correct. Admittedly, the marriage of the
petitioner and the respondent was solemnized on 10.11.1997. Admittedly, the
petition for divorce was filed in the year 1999, and it appears to be most
unnatural and improbable to say that the petitioner could not come to know about
the earlier marriage of the respondent with Kanithi Jacob for about two years.
We have gone through the judgment of the learned Judge, Family Court. It is
unfortunate to note that the learned Judge, Family Court, had simply extracted
the evidence of all the witnesses one after another and then gave his
conclusions which are not supported by any reason. It is the primary duty of
the Court to examine the entire evidence in proper perspective and then analyze
the same. Mere extracting the evidence of witnesses one after another and then
simply saying that the evidence proves the case of one party cannot be said to
be the proper method of appreciating the evidence. It is the duty of the Court
to apply its mind and to draw just and reasonable conclusions from the evidence.
The Court must examine whether the version of a witness is truthful or probable
and whether the same is in conformity with the normal human conduct and 
acceptable. The Court must examine whether the version of a party is consistent
with other oral and documentary evidence, whether a witness stood the test of
cross-examination. When the Court examines the contradictions, it must
ascertain whether the contradictions go to the root of the matter and whether
the evidence is shaken in cross-examination and whether those contradictions
make the version of a witness unacceptable and the witness unreliable and
untrustworthy. Thus, a great responsibility lies on the Presiding Officer of a
Court to analyze the evidence. The learned Judge, Family Court, gave his
findings without assigning any valid reasons for his conclusions. All the
conclusions must be arrived on evidence and for arriving to such conclusions
valid reasons have to be assigned. Any order which is not supported by reasons
on the face of it would become perverse order.
In view of the above, it is clear that the impugned order passed by the lower
Court cannot stand to scrutiny and the same is liable to be set aside.
Accordingly, the same is set aside.
In the result, the appeal is allowed with costs.?1 AIR 1995 Kerala 16

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