Swarna Shukla –
Published On: September 24, 2021 at 18:00 IST
Highlighting that Customary Divorce is a social evil, the Gujarat High Court recently refused to grant a declaration regarding the dissolution of marriage on the basis of a couple noting that the same was not adequately proved by the wife (who was in Appeal seeking declaration).
The Bench of Justice J.B Pardiwala and V.D Nanavati, it its Order observed that Customary Divorce are decided by few persons, who may not have much idea about the social developments and the Constitutional perspective.
The couple had solemnized their marriage in 2010 and subsequently owing to marital disputes, separated. Belonging from the Leuva Patel Community, the respective family members of the couple decided to dissolve the marriage by way of a Customary Deed of Divorce, which the couple amicably relegated themselves to.
The Family Court dismissed the Suit substantially on the grounds that the Plaintiff failed to prove any practice of Customary Divorce being prevalent in the Leuva Patel Community.
The woman then approached the Gujarat High Court in 2020. Her former husband refused to be present before the Family Court or the Gujarat High Court.
The Court observed that a conjoint reading of Section 3 (a),4(a) and 29(2) of the Hindu Marriage Act,1955 would indicate that though Section 29(2) of the Act saves Customary rights, a person who relies upon such customs has to prove that such custom and usage had been uniformly observed for a long time and had obtained the force of law amongst the Hindus.
Refusing to interfere with the Family Court’s decision and dismissing the woman’s Appeal, the Bench however clarified that the parties can file an appropriate application under the relevant provision of the Hindu Marriage Act and pray for a decree of Divorce with consent.
Also Read: What are the Theories of Divorce?