The Calcutta High Court declared that merely obtaining a simple customary divorce would not be satisfactory to adhere to the exception posed under Section 29 (2) of the Hindu Marriage Act.
Justice Sabyasachi Bhattacharya stated that the validity of such a divorce has to be established by a deed of declaration to obtain the dissolution of a Hindu Marriage.
Section 29 (2) of the Hindu Marriage Act essentially maintains that any right recognised by custom in or conferred by special enactment would not be disturbed by the 1955 Act.
The situation arose when a woman petitioned to get the pension of a deceased freedom fighter on grounds of being his legally married wife.
She stated in her petition that as per Section 29 (2), the legal intricacies of the act could not apply to her, as her husband had divorced his first wife via customary practices with their marriage hence dissolved.
She petitioned the same to the court, when her request for pension was denied by the government under authority that such a deed of divorce was not acceptable under the Hindu Marriage Act.
The respondents opposed the claim on grounds that the validity of the divorce was not established as it was lacking a deed of declaration.
Agreeing with the respondents the court ruled against the petitioner, with Justice Bhattacharya stating that in absence of such evidence the exception showcased in Section 29 (2) of the Hindu Marriage Act could not apply.
The court went on to say that the burden and initial onus of proof lay with the petitioner.
“There was nothing to prevent the petitioner from approaching the competent civil court for such declaration. The burden and initial onus lies on the petitioner to prove the existence of a custom having the force of law, to be proved by evidence – oral or documentary – in order to attract the benefit of Section 29(2) of the Hindu Marriage Act.”- Justice Bhattacharya.
As conclusion the single-judge bench spoke of how they were inclined to divide the pension between the respondent and the petitioner equally but had to, in the sprit of the supremacy of Judicial Conscience over Individual conscience of a judge, forced to dismiss the idea.