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Judgment
N. Kumar, J.—This appeal is filed by the husband challenging the order of the Family Court dismissing the petition for divorce on the ground of desertion u/s 29(2) of the Hindu Marriage Act.
The case of the petitioner/appellant is that his marriage was solemnised in accordance with the customs of the Hindu Dhangar community of Maharashtra on 1.5.1993 at Bitale village, Solapur District, Maharashtra. They resided together at Bangalore until January; 2006 i.e. for nearly 13 years. In the year 2004, after 10 years of marriage, two children were born. The respondent having developed acquaintance with a male family friend withdrew from the society of the petitioner on 14.1.2006. The petitioner having traced her whereabouts, tried to retreat her but she foiled all his efforts and refused to go with him. When the respondent left the matrimonial home in the absence of the petitioner, has dishonestly removed jewelry and cash worth Rs. 1,80,000/-. When the matter was arbitrated by the elders of the community as per custom, the petitioner was advised to give divorce by issuing divorce notice dated 13.3.2006. It was duly served on the respondent. As per the custom, he has divorced the respondent. The respondent has deserted him since 14.1.2006. Though respondent was duly served, she was not represented before the Court. Therefore, she was placed ex-parte. In support of his case, petitioner examined himself as P.W1 and got marked 9 documents Ex. P1 to Ex. P9. The Family Court on appreciation of the aforesaid facts, held that the desertion for a continuous period of two years immediately preceding the presentation of the petition is not proved, and immediately after the so-called desertion, the petition is filed and therefore, it was of the view that there is no merit in the petition. Accordingly, it dismissed the petition. Aggrieved by the said order, the petitioner/appellant is before this Court.
Learned Counsel for the appellant submits that it is not a petition filed u/s 13 of the Hindu Marriage Act for divorce, where there should be desertion for a continuous period of two years for filing a petition for divorce. This is a petition filed u/s 29(2) of the Act, which provides for initiation of proceedings according to custom and usage. In support of the contention, they have produced Ex. P1, the letter of the elders of the family, which proves the custom. The trial Court committed an error in not properly appreciating the scope of the proceedings and the custom prevailing and thus erred in dismissing the petition.
We do not see any merit in the said contention. Section 29(2) of the Hindu Marriage Act, 1955, reads as under:
29(2): Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.
In order to have the benefit of this provision, the person approaching the Court should establish the right recognised by custom. It is only then, the provision of the Act stands excluded to the parties to the marriage. In the first place, in the pleadings, we cannot make out what is the custom on which the petitioner is relying on. Ex. P1 is to be construed as proof of custom, as rightly held by the Family Court, the author of Ex. P1 is not examined. Merely because the respondent did not contest the matter, that does not absolve the petitioner of his responsibility of fulfilling the legal requirements. When a person comes to Court seeking exclusion of the provision of parliamentary enactment relying on custom, the custom is to be proved as a matter of fact and then, he must establish the right conferred by the custom before he is entitled to any relief at the hands of this Court. As rightly held by the Family Court, the custom is not specifically pleaded. The so-called custom of issuing a ''sodachiti'' i.e. a letter of divorce is not established. Even otherwise, such a course of conduct cannot be recognized in a civilized society, which is governed by a written Constitution. In that view of the matter, we do not see any merit in this appeal. Accordingly, the appeal is dismissed. Consequently, the application-Misc.Cvl. No. 17370/2009 filed for condonation of delay is also dismissed.