IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1801 OF 2007

Mahendra Nath Yadav                                                         ....  Appellant

Versus

Sheela Devi                                                                                 …. Respondent

O R D E R

1. This appeal has been preferred against the judgment and order dated 8th  

October, 2004 of the High Court of Judicature at Allahabad passed in First Appeal  

Nos.786 and 787/2000 and by which the decree of divorce granted by the Family  

Court, Varanasi has been reversed and dismissal of the petition under Section 9 of  

the Hindu Marriage Act,  1955  (hereinafter called as “Act,  1955”) filed by the  

respondent before the Family Court has also been reversed and her case has been  

allowed.  The  parties  herein  got  married  on  3rd May,  1990.   The  ceremony of  

'Gauna' was performed in 1991. Appellant is serving in the Army and respondent is  

serving as a teacher. There was no proper opportunity for both of them to lead a  

normal  family  life.   Thus,  differences  arose  and  litigation  started  between  the  

parties.  The respondent-wife filed an Application under Section 125 of the Code  

of Criminal Procedure, 1973  (hereinafter called as “Cr.P.C.”), before the Judicial

Magistrate, Ist Class, Varanasi.  The Magistrate vide order dated 10th May, 1995,  

allowed the said application by directing the appellant to pay the respondent-wife a  

sum of Rs.400/- p.m. as maintenance.  She also filed Case Crime No.131 of 1991  

under Section 498-A of the Indian Penal Code, 1860 (IPC) against the appellant  

and  his  family  members  in  the  Police  Station,  Choubeypur,  Varanasi.   The  

appellant preferred Revision No.330/95 in the Court of Sessions Judge, Varanasi  

against  the order of the Magistrate granting the maintenance to the respondent.  

However,  that  was  dismissed  by  the  Revisional  Court  vide  order  dated  15th  

February,  1996.   Though the  order  passed  under  Section  125 of  Cr.P.C.   was  

subsequently modified by the Family Court vide order dated 2nd June, 1997,  the  

relations between the parties deteriorated, an attempt was made by the appellant's  

family to settle the matter.  According to appellant, it was customary in the locality  

and in the community to which both parties belong to have a divorce through  the  

Panchayat.   Thus,  the  Panchayat  was  convened  on  7th June,  1997.   The  said  

Panchayat  decided  that  the  appellant  should  pay  a  sum  of  Rs.30,000/-  to  the  

respondent's family.  It was paid and a document was prepared which was duly  

signed by the parties.  Thus, the marriage came to an end.  In order to give legal  

effect to the said customary divorce, the appellant tried to persuade the respondent  

to get divorce from the Family Court under Section 13-B of the Act,  1955  by  

consent.  However, she did not agree.  Thus the appellant approached the Family  

Court by filing Petition No.370 of 1998 under Section 13 of the Act, 1955, seeking  

divorce on the ground of desertion and cruelty.  The respondent filed the counter  

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case i.e. Petition No.57 of 1999 under Section 9 of the Act, 1955, for restitution of  

conjugal rights.  The Family Court decreed the suit mainly on the ground that the  

marriage stood dissolved through Panchayat and dismissed the petition filed by the  

wife for restitution of conjugal rights vide order dated 15th September, 2000.

2. Being aggrieved, the respondent preferred appeals against both the orders  

before the High Court and the High Court has reversed the said order in both the  

cases.  Hence this appeal.

3. In spite of service the respondent-wife did not enter an appearance.  Thus,  

we have heard Dr. J.N. Dubey, learned senior counsel appearing for the appellant.  

Dr. Dubey has taken us through the evidence available on record and through both  

the  judgments.   The  High  Court  has  rightly  held  that  dissolution  of  marriage  

through Panchayat as per custom prevailing in that area and in that community  

permitted cannot be a ground for granting divorce under Section 13 of the Act,  

1955.   We  fully  agree  with  the  said  decision  for  the  reason  that  in  case  the  

appellant  wanted  a  decree  on  the  basis  of  customary  dissolution  of  marriage  

through Panchayat held on 7th June, 1997, he would not have filed a petition under  

Section 13 of the Act,  1955.  Filing this  petition itself  means that none of the  

parties was of the view that the divorce granted by the Panchayat was legal.  In  

view of the above, we do not see any reason to interfere with the well-reasoned  

judgment of the High Court.  The appeal fails and is accordingly dismissed.  No  

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costs.  

                               ………..

...................J.             (P. SATHASIVAM)  

                      ……

….....................J.                                       (Dr. B.S. CHAUHAN)

New Delhi, August  25, 2010.

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