SC: Hindu Marriage Can Be Terminated via Customary Divorce


LI Network

Published on: October 5, 2023 at 10:52 IST

The Supreme Court has affirmed that a Hindu marriage can be dissolved through a customary divorce deed, provided that the existence of such a customary right is substantiated.

This interpretation stems from Section 29(2) of the Hindu Marriage Act 1955, which explicitly states that none of the provisions of the Act will impede any rights recognized by custom or conferred by any special enactment to seek the dissolution of a Hindu marriage.

However, the Court emphasized that the party invoking a customary divorce deed must prove the existence of such a customary right. To do so, there must be a specific assertion before the Court regarding the presence of this customary right, supported by substantial evidence.

The Supreme Court articulated these principles while addressing an appeal against a judgment by the Himachal Pradesh High Court. The High Court had dismissed a complaint filed by a wife under the Protection of Women from Domestic Violence Act 2005, based on a purported customary divorce deed presented by the husband. Dissatisfied with the High Court’s decision, the wife took her case to the Supreme Court.

The husband contended that the marriage had been dissolved through a customary divorce deed.

The Supreme Court stressed that the existence of a customary right for divorce is a factual matter that must be proven before a civil court in a lawsuit.

The Court stated, “The issue of whether the parties are governed by the custom under which a divorce can be obtained without recourse to Sections 11 and 13 of the 1955 Act is essentially a question of fact that must be specifically pleaded and proven through compelling evidence. Such a question is typically within the purview of a civil court.”

Even if it is hypothetically assumed that a Judicial Magistrate, acting under the DV Act, has the authority to determine the validity of a customary divorce deed, the Supreme Court emphasized that such a determination cannot be made solely through an application filed by the husband.

The Court further clarified that the husband bears the responsibility of laying a proper foundation in the pleadings and presenting irrefutable evidence to demonstrate the long-standing custom and the valid dissolution of their marriage through customary rights. Unless the husband can establish the prevalence of the custom in accordance with public policy and the enforceability of the customary divorce deed, the Court emphasized that there exists a statutory presumption of an ongoing marriage between the parties.

The Supreme Court found that the High Court erred in law by dismissing the DV Act complaint solely based on the purported customary divorce deed. It reiterated that the burden of proving the customary divorce deed lies with the respondent (the husband) who is relying on it.

Consequently, the High Court’s order was overturned, and the matter was remanded to it for a fresh review, without relying on the customary divorce deed. The question of the validity of the customary divorce deed was left to be decided by the competent jurisdiction, following due legal procedures.

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