MANU/MH/0267/2006

Equivalent Citation: AIR2006Bom342, 2006(4)ALLMR539, 2006(4)BomC R210, 2006(3)MhLj772, 2007(5)RC R(C ivil)84

IN THE HIGH COURT OF BOMBAY

L.P.A. Nos. 19 and 20 of 1992
Decided On: 12.04.2006
Appellants: Arun Laxmanrao Navalkar
Vs.
Respondent: Meena Arun Navalkar
Hon'ble Judges:
R.M.S. Khandeparkar and R.S. Dalvi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: P.M. Patwardhan, Adv. in L.P.A. No. 19 of 1992 and
V.Z. Kankaria, Adv. in L.P.A. No. 20 of 1992
For Respondents/Defendant: V.Z. Kankaria, Adv. in L.P.A. No. 19 of 1992 and P.M.
Patwardhan, Adv. in L.P.A. No. 20 of 1992
Case Note:
Family - Sapinda Relation - Criteria to Declare Marriage Void - Hindu
Marriage Act, 1955 (HMA) - Sections 3, 5, 10, 11 and 13(1) - Trial court
decreed husband's petition declaring marriage between both parties null
and void and granted him decree of divorce on ground of cruelty and
sapindas relationship as well as an injunction restraining wife from
entering upon joint family property of husband - Wife's appeal was disposed
of setting aside decree of nullity of marriage as well as decree of divorce as
also order of injunction and instead granting decree of judicial separation
under Section10 of HMA - Held, both parties come from common ancestor
and wife was daughter of husband's father's sister - Upon this admitted
relationship husband claims that they are sapindas of one another while
wife claims that they are not - Section 3(f) of HMA read with prohibited
relationship under Section 3(a) of HMA show that parties must be within 5
generations of lineage from common ancestor through male ascent - Ascent
for both parties were their respective fathers - Hence, their lineage was
therefore male ascent - Specific custom propounded by wife that sapindas
relationship in marriage allowed and accepted in her community was not
proved - - Appellate court, incorrectly concluded that very onus of proof that
there was no such custom in their community was on husband - There was
no need to advert to other aspects of relationship between parties with
regard to claim of husband for divorce on ground of cruelty, desertion and
schizophrenia, marriage between parties being itself void under section 3
(f) read with section 5(v) of HMA - Since marriage of parties itself declared
void, there would be no question of wife exercising any right of residence in
their matrimonial home - Appeal allowed.
JUDGMENT
R.S. Dalvi, J.
1 . The parties are husband and wife. Their marital relationship began in January,

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1 . The parties are husband and wife. Their marital relationship began in January,
1981 and ended in July, 1981 when they separated. During the time that they were
together they lived at Girgaum which was their matrimonial home being a family
bungalow of ground plus 2 upper floors. It was a joint family property in which they
lived with 2 brothers and 2 cousins of husband. They used 2 rooms and a bath on the
second floor, and the common kitchen (mess) and hall for visitors. This lis began in
1984 and has left the parties as they were 22 years ago.
2. The wife separated and sued the husband for maintenance. The husband sued her
for nullity of their marriage under Section 11 of the Hindu Marriage Act on the ground
of their relationship being sapindas relationship, in the alternative for divorce on the
ground of cruelty, desertion and schizophrenia under Section 13(1)(ia) and 13(1)(iii)
of the Hindu Marriage Act. The husband also sued for an injunction restraining the
wife from coming into the matrimonial home which was his joint family property.
3 . The Additional Principal Judge of the Bombay City Civil and Sessions Court
decreed the husband's petition being MJ Petition No. 980 of 1984 on 29th January,
1988. He declared the marriage to be null and void and granted him a decree of
divorce on the ground of cruelty as well as an injunction restraining her from
entering upon the joint family property of the husband. However, he directed him to
pay costs of the Petition fixed at Rs. 3000/-.
4. The First Appeal from the said judgment being F.A. No. 1464 of 1988 came to be
disposed of by the learned Single Judge by his judgment and order dated 15th March,
1991 setting aside the decree of nullity of marriage as well as the decree of divorce
as also the order of injunction and instead granting a decree of judicial separation
under Section 10 of the Hindu Marriage Act. The order directed the husband to pay
the costs of the Appeal fixed at Rs. 5000/- in addition to the costs granted by the
trial Court.
5 . Both the husband and the wife have been aggrieved by the said order and have
filed their separate appeals challenging part of the said order in First Appeal passed
by the learned Single Judge. The husband has challenged the judgment setting aside
the decree of nullity of his marriage, the decree of divorce as also the order of
injunction. The wife has challenged the decree of judicial separation which was not
even claimed by her. The above L.P.As. are accordingly filed by both the husband and
the wife.
6 . It would be apt to first consider the decree of nullity claimed by the husband
under Section 11 of the Hindu Marriage Act. The relationship of the parties is
admitted. They come from a common ancestor one Moroba who had one son Laxman
and one daughter Champubai. The husband is the son of Laxman. The wife is the
daughter of Champubai's son. Upon this admitted relationship the husband claims
that they are sapindas of one another. The wife claims that they are not. The
sapindas relationship defined under Section 3(f) and the prohibited relationship
under Section 3(a) of Hindu Marriage Act runs thus :
3. Definitions -- In this Act, unless the context otherwise requires, --"3. (f)
(i) "sapindas relationship" with reference to any person extends as far as the
third generation (inclusive) in the line of ascent through the mother, and the
fifth(inclusive) in the line of ascent through the father, the line being traced
upwards in each case from the person concerned, who is to be counted as
the first generation;

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 (ii) two persons are said to be "sapindas" of each other if one is a lineal
ascendant of the other within the limits of sapindas relationship, or if they
have a common lineal ascendant who is within the limits of sapindas
relationship with reference to each of them;
7. In Section 3(f) of the Hindu Marriage Act read with prohibited relationship under
Section 3(a) of the Hindu Marriage Act show that the parties must be within 5
generations of lineage from common ancestor through the male ascent. The ascent
for both the parties are their respective fathers. Hence, their lineage is therefore male
ascent. The wife however, claims that the sapindas relationship is not established as
their lineage is intervened by her grand mother who is the husband's parental aunt.
However, in the definition of sapindas relationship any breakage of the relationship
by such intervening is not contemplated. The parties have a common lineal ascendant
(ancestor) Moroba within 5 generations of each of them. The parties are therefore in
sapindas relationship.
8 . The provisions of Section 5(v) read with Section 3(f) of the Hindu Marriage Act
shows that their marriage would be void unless there is a custom in their community
to the contrary.
9. Section 5 of the Hindu Marriage Act runs thus :
5 . Conditions for a Hindu marriage -- A marriage may be solemnized
between any two Hindus, if the following conditions are fulfilled, namely:--
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party --
(a) is incapable of giving a valid consent to it in
consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been
suffering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of
children; or
(c) has been subject to recurrent attacks of insanity
(iii) the bridegroom has completed the age of (twenty- one years)
and the bride, the age of (eighteen years) at the time of the
marriage;
(iv) the parties are not within the degrees of prohibited relationship
unless the custom or usage governing each of them permits of a
marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or
usage governing each of them permits of a marriage between the
two;
10. It will have to be seen whether there is any custom in the community to which
the parties belong allowing or enjoining marriage between parties without sapinda
relationship and whether there have been (several) such marriages over a period of
time which have been performed and are accepted by the community.

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11. It is elementary that the onus of proving such a custom would necessarily lie on
the party propounding it. What is the burden of proof and how the burden of proof of
a given fact is to be discharged under Sections 101, 102 and 103 of the Indian
Evidence Act is thus:
Section 101 - Burden of proof - Whoever desires any Court to give judgment
as to any legal right or liability dependent on the existence of facts which he
asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person.
Section 102 - On whom burden of proof lies - The burden of proof in a suit
or proceeding lies on that person who would fail if no evidence at all were
given on either side.
Section 103 - Burden of proof as to particular fact - The burden of proof as
to any particular fact lies on that person who wishes the Court to believe in
its existence, unless it is provided by any law that the proof of that fact shall
lie on any particular person.
12. Consequently in this case it is for the husband to prove sapindas relationship. It
is for the wife to prove that there is a custom allowing marriages amongst sapindas
in their community. The relationship of the parties being admitted, sapindas
relationship need not be proved. The custom to the contrary is required to be proved.
13. The trial Court considered the onus as above. The learned single Judge however,
held that it was for the husband to discharge the onus that there was no custom of
marriages within sapindas relationship in their community and that since he failed to
discharge such a negative onus, his claim to the decree of nullity must fail. It is
contended on behalf of the husband by Mr. Patwardhan that no party can discharge a
negative onus and hence calling upon the husband to prove lack of custom results in
failure of justice.
14. Section 5(v) of the Hindu Marriage Act has indeed not only laid down merely that
the marriage of the parties in sapindas relationship is void. It lays down that it would
only be void unless there was a custom to the contrary. It is in view of such
phraseology that the learned single Judge has held that not only must the party
propounding such a relationship to show such relationship but further show that
there was no custom to the contrary since the said sub-section itself provides for the
prohibition of the marriage only if such a custom within the community does not
exist. However, if the sub-section is so read, the onus would be discharged only by
the assertion of the negative fact that there is no such custom within the parties
community. No specific instances of marriages not within prohibited relationship
could be set out.
15. Hence, it is for the party, who claims such a custom to be existing, to show it by
specific illustrations. In fact the wife has actually attempted to show as many as 9
instances of couples in their community which are stated to be in sapindas
relationship during the trial to discharge such onus. It will have to be seen whether
upon such illustrations the marriage of those parties are actually shown to be within
sapindas relationship and if shown whether those instances would suffice to prove
such a custom.

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16. It is settled law that any custom, which one of the sources of the whole Hindu
law, is characterized by its continuity, longevity and uninterruptedness. The instances
of such custom must therefore, be over a long period of time, occurring at regular
intervals without leaving the span of time without such illustrations. Such custom
must be shown to exist and continue to exist before and after the parties' marriage. It
must further be shown to be accepted by the community.
17. It would be apt to first consider the specific illustrations of various marriages
shown by the wife during the course of the cross-examination of the husband as well
as in her own examination-in-chief. The illustrations set out by the wife are admitted
by the husband. Hence, the evidence led by the wife of 2 other witnesses, one of
whom claimed to be an expert, having written a book inter alia on such custom and
the another who also had knowledge of such custom is therefore largely redundant.
Similarly the evidence led by the husband of his 2 brothers and one cousin who were
examined on his behalf which shows that they knew those parties as belonging to
their community and most of them has also having been married to one another is
rather unnecessary to consider.
1 8 . A reading of the evidence shows the following parties bearing the admitted
relationship mentioned against them :

19. It will have to be seen from the above statement whether the custom propounded
by the wife can be taken to be proved. The aforesaid relationships are admitted by
both the parties. It may only be mentioned that the 2 witnesses of the husband, his 2
brothers being p.w. 3 and 4, have deposed/chat there is no such custom in their
community and that the relationship of certain parties is not known to them though
the fact that those parties are couples, are known to them. The evidence of the
witnesses on behalf of the wife being R/W. 5 and 6 who have been examined
essentially as experts have not shown any positive assertion that there is acceptance
of such custom in their community. They have also shown no knowledge about
certain specific relationships amongst the aforesaid couples.
20. The aforesaid statement shows the relationship of only one couple at serial No. 9

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exactly like that of the husband and wife in this case. The couple at serial No. 8
shows exactly the converse relationship though that would be a sapindas
relationship. 3 of these couples at serial Nos. 5, 6 and 7 are shown to be sagotras
which is different from a sapindas relationship. 4 of these couples at serial Nos. 1, 2,
3 and 4 show the marriage of the husband with his "mama's" daughter which is a
relationship specifically accepted amongst Hindus. One couple at serial No. 8 is the
marriage of a wife with her "mama's" son, converse of the accepted Hindu custom
and which can be taken to be a sapindas relationship, otherwise prohibited.
21. The wife can therefore be taken to have shown at best the marriage of 2 couples
in their community within sapindas relationship.
22. The years of their marriage are not shown hence, the span of time to show the
existence of the custom is not known. The custom propounded by her therefore,
cannot be taken to have the attribute of either continuity or longevity, since the lapse
of time of years between the marriages of these parties is not shown. The factum of
uninterruptedness of the custom is also not made out. Aside from showing the factum
of the marriages between 2 parties in sapindas relationship, the fact that it was
accepted by the community as a whole is also not made out by a positive assertion.
It may at best be taken that since these parties have admittedly married and
continued within the community, no rejection of their marriage having been shown
by the community on the part of the husband by his positive evidence, the implied
acceptance may be made out. To see whether such evidence is sufficient to prove the
custom by the party who propounds it, it would be useful to consider the series of
judgments on the aspect of proof of custom as a source of Hindu law. The earliest of
such judgments is in the case of Mirza Raja Pushpavathi Vijayaram Gajapathi Raj
Marine Sultan Bahadur and Ors. v. Sri Pushavathi Visweswar Gajapathiraj Rajkumar
of Vizianagram and Ors. reported in AIR 1964 SC 118 in which the family custom of
impartibility of estate relating to movable properties viz. Jewelry, in case of Rajas
was considered. Following the decision of Privy Council in the case of Shiba Prasad v.
Rani Prayag Kumari reported in MANU/PR/0028/1932. It was held that only one of the
4 rights of a joint Hindu family namely the right of survivorship was available in case
of an impartible estate. Whether by custom in the family such a right to an impartible
estate extended to the family jewelry was considered in that case. It was held in para
26 at page 130 that:--
But apart from this technical aspect of the matter, we must have regard to
the attitude adopted by the parties and their course of conduct at the relevant
time when we are dealing with the question of family custom." It was further
observed that:--
In the matter of the proof of family custom, it is not the
technicalities of the law that would prevail but the evidence of
conduct which unambiguously proves that the parties wanted to
continue the old custom.
2 3 . The case of Siromani and Anr. v. Hemkumar and Ors. reported in
MANU/SC/0116/1968 : [1968]3SCR639 was the case in which the custom of Jethansi
was propounded. That custom was that the eldest son received a larger share of his
father's property at the time of partition. An unequal partition of ancestral or joint
properties was from earlier times condemned. Hence, it was held that custom in a
particular community of giving the eldest son greater share in the property of his
father on partition had to be proved. In para 7 of that judgment whilst rejecting that

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the custom pleaded had been established, it is observed that:
It is well established that a custom must be proved to be ancient, certain and
reasonable if it is to be recognised and acted upon by Courts of law; and
being in derogation of the general rules of law the custom must be construed
strictly ;
24. In that case the witness who was examined to prove the custom deposed that he
was not present at the time of partition which was shown to have been effected. He
deposed that there was no fixed custom of Jethansi in that community. He gave an
instance of partition to show the custom of Jethansi without any written document of
partition. It was held, relying upon the Privy Council decision in the case of Hur
Purshad v. Sheo Dyal (1876-77) 8 Ind. App 259 at page 295 (PC), that such evidence
was not sufficient to prove such custom.
25. From the law enunciated under the aforesaid cases, the evidence produced by the
wife in this case is required to be considered. The specific custom propounded by her
that sapindas relationship in marriage is allowed and accepted in her community is
not proved.
26. It has been held in the impugned judgment that the onus lies on the husband to
prove lack of custom to this effect. We understand that the learned Single Judge who
set aside the reasoning and the order of the learned trial Judge on this aspect and
held that the husband was to prove lack of custom was guided by the reading of
Section 5(v) of the Hindu Marriage Act by the learned Judge. Since the said Sub-
section runs thus :
Section 5(v) - the parties are not sapindas of each other, unless the custom
or usage governing each of them permits of a marriage between the two.
27. The reading of this sub-section, as held in the impugned judgment, cannot show
that the marriage between two Hindus would be void, if the party propounding the
voidability of the marriage shows not only that they are in sapindas relationship, but
there is no custom in their community accepting such relationship in marriage. The
reading of the section in fact shows that sapindas relationship is the specific ground
for voidability of marriage. Hence, it is not for the party seeking voidability to show
lack of custom.
28. The onus as well as the standard of proof of a custom of the kind is not different
from the proof of other customs. The question of pleading and proof of a custom has
been considered in the case of Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh
and Ors. reported in MANU/SC/0008/1974 : [1975]2SCR932 (relying upon the earlier
decision relating to the proof of custom in the case of Ramalakshmi Ammal v.
Sivanatha Perumal, (1872) 14 MIA 570, (Privy Council) thus :--
the plaintiffs to prove the existence of the custom and if they fail to do so
they cannot succeed on the basis that the defendants did not succeed in
proving that the custom did not exist.
29. It was observed that instances to prove the family custom, may not be as many
or as frequent as in the case of customs pertaining to a territory or to the community
or to the character of any estate. Consequently it can be seen that for proving the
custom in the community more instances are required to be shown.

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30. However, the general law with regard to the proof of custom following the Privy
Council decision in the case of Ramalakshmi Ammal v. Sivanatha Perumal (supra)
held in the case of Harihar Prasad v. Balmiki Prasad is thus :
It is of the essence of special usages modifying the ordinary law of
succession that they should be ancient and invariable; and it is further
essential that they should be established to be so by clear and unambiguous
evidence. It is only by means of such evidence that the Courts can be
assured of their existence, and that they possess the conditions of antiquity
and certainty on which alone their legal title to recognition depends.
3 1 . It is therefore, seen that the learned trial Judge has correctly considered the
factum of the custom, if any, of marriages in sapindas relationship in the community
of the husband and the wife upon the evidence rightly led by the wife to prove such
custom. He correctly found it inadequate and insufficient of the standard of proof
required. The learned single Judge, however, incorrectly concluded that the very onus
of proof that there was no such custom in their community was on the husband.
3 2 . That being so we need not advert to the other aspects of the relationship
between the parties with regard to the claim of the husband for divorce on the
ground of cruelty, desertion and schizophrenia, the marriage between the parties
being itself void under section read with Section 5(v) of the Hindu Marriage Act.
33. The only aspect that remains to be considered is the contention of the wife that
she would be entitled to remain and reside in the matrimonial home of the parties
where they resided together for a period of about 6 months, 22 years ago.
3 4 . The husband's case of restraining his wife from entering upon the premises
granted by the trial Court has been upset by the learned Single Judge.
35. It may be mentioned that since the marriage of the parties itself is declared void,
there would be no question of the wife exercising any right of residence in their
matrimonial home. In fact she has not resided therein for the last 22 years.
36. In the circumstances the appeal is allowed.
37. The order of the learned single Judge dated 5th March, 1991 is set aside.
3 8 . The marriage between the parties is declared null and void. The wife is
restrained from entering into the matrimonial home at Nawalkar House, 159,
Khadilkar Road, Girgaum, Bombay-400 004.
39. There shall be no order as to costs of this appeal.
After pronouncement of the judgment the learned advocate appearing for wife orally
requested for stay of the order as far as it relates to the relief of injunction.
Undisputedly during the pendency of the LPA there was no order of injunction against
the wife. Considering the same the order to the extent it relates to the injunction
against wife, the same is stayed for a period of 8 weeks.

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