(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) At the request of learned advocate for the parties, first appeal and civil applications are taken up for final disposal at admission stage.
This is an appeal filed by the original plaintiff in family suit no. 60/2010 before the Family Court, Surat. The case of the appellant was that he and respondent got married on 25/5/1995. However, since there were disputes between the parties, husband and wife opted for customary divorce, and deed thereof was drawn on 15/4/1998. The case of the applicant - original plaintiff was that such customary divorce is recognized in their community. The family suit was, therefore, filed for declaration that the plaintiff and the opponent have divorced from 16/4/1998.
The Principal Judge, Family Court, however, by its impugned order dated 15/4/2011 refused to recognize legality of such customary divorce. From the evidence on record, it was pointed out that they have failed to establish customs prevailing in their community.
We may notice that the respondent wife had also supported the plaintiff before the Family Court. However, since there was virtually no evidence produced on record to establish any custom in the community to which they belong to recognize customary divorce, the Court refused to grant prayer made in the suit.
Before this Court after filing of the appeal, the appellant has filed civil application no. 1185/2012 to permit the applicant to produce additional evidence in terms of Order 41 Rule 27 of the Civil Procedure Code. Along with the Civil Application, the applicant has produced copies of certain documents in support of his case that customary divorce in his community are recognized.
We are of the opinion that in facts of the present case, it would not be proper to permit the appellant to produce additional evidence in appeal. Such documents would have to be proved, conditions thereof would have to be appreciated, witness may have to be examined. It would, therefore, be proper in our opinion to permit the appellant to lead such evidence before the Trial Court. It would be more convenient and in fitness of things. For such purpose, the impugned order of the Family Court, Surat is set aside. The proceedings are remanded to the Family Court for fresh hearing after permitting either side to lead further evidence, if they so desire. We have expressed no opinion on the contentinof the parties with respect to merits of the case.
With above directions, First Appeal as well as Civil Application stands disposed of.
(AKIL KURESHI, J) (C.L.SONI, J) asma Top