Customary Divorce A Social Evil, Happens On Account Of The Attitude Of Ill-Minded Male Chauvinists: Gujarat High Court

Underscoring 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 customary divorce of a couple noting that the same was not adequately proved by the wife (who was in an appeal seeking such declaration).

The bench, however, clarified that the parties were at liberty to file an appropriate application under the relevant provision of the Hindu Marriage Act and pray for a decree of divorce with consent, and directed the court to take such application for hearing at the earliest.

The Bench of Justice JB Pardiwala and VD Nanavati, in its order, observed that Customary divorces are decided by few persons, who may not have much idea about the social developments and the constitutional perspective. 

"Such customary divorces are affecting personal liberty and fundamental rights of the women to adjudicate their issues before the competent forum...Even after the development of the constitutional principles and in the presence of ever so many welfare legislations in favour of women, the Courts are recognizing the customary divorces, which can never be accepted nor be approved. Customary divorce undoubtedly is a social evil. Customary divorces undoubtedly are happening on account of the attitude of ill-minded male chauvinists," the Court added.

Referring to philosopher Bertrand Russell, the Court said that the National policy is the best policy and that Regionalism is a bad policy and therefore, the Court also stressed that injecting nationalism in the minds of the people for the development of our great Nation is of paramount importance.

"Internationalism is not possible. Regionalism will paralise the unity and stop the developmental activities. Thus, the Courts and Statesmen should not recognize or encourage regionalism. But, they have to promote nationalism," the Court observed.

The case in brief 

The marriage between the appellant (original plaintiff/wife) and the opponent (original defendant/husband) was solemnized in the year 2010 at a village in District Amreli (Gujarat). The parties hail from the Leuva Patel Community.

Over a period of time, matrimonial disputes arose between the appellant (wife) and the opponent (husband) and when it appeared that reconciliation between the parties can't happen, the family members and the relatives of the parties decided to dissolve the marriage by way of a customary deed of divorce. 

Consequently, the Panch of the community thought fit to put an end to the marriage by way of customary divorce and the parties amicably relegated themselves to customary divorce.

Now, since the wife wished to settle abroad and the foreign embassy/immigration authority may not look into the customary deed of divorce as to understand the marital status of the parties in law, the wife instituted the Family Suit seeking a declaration that the marriage between the parties stood validly dissolved by way of the customary deed of divorce.

The Family Court dismissed the Suit substantially on the ground that the plaintiff failed to prove any practice of customary divorce being prevalent in the Leuva Patel Community and being dissatisfied with the impugned judgment and order, the appellant – original plaintiff (wife) moved the Court with the instant appeal. The Husband did not appear in the appeal.

Court's observations

At the outset, the Court referred to various supreme court rulings to conclude that the prevalence of customary divorce in the community to which the parties belong, contrary to the general law of divorce must be specifically pleaded and established by person propounding such custom in order that divorce be granted.

In this regard, 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 the customary rights, a person who relies upon such custom has to prove that such custom and usage had been continuously and uniformly observed for a long time and had obtained the force of law amongst the Hindus in their local area, tribe, community, group or family and such custom was not unreasonable or opposed to public policy.

The Court noted that the wife had stated in her examination-in-chief that customary divorce in the Leuva Patel Community was permissible and in support of such statement, she had relied upon five affidavits of five individuals belonging to the Leuva Patel Community.

However, in response to this, the Court observed thus:

"It is difficult to appreciate how did the appellant -plaintiff (wife) expect the Family Court to take into consideration the affidavits of five members of the Leuva Patel community. The question is whether such affidavits would constitute legal evidence?... In our view, the appellant – plaintiff (wife) could be said to have miserably failed to prove the prevalence of customary divorce in the Leuva Patel Community to obtain divorce by execution of the document in presence of the Panchas when such customary divorce was contrary to the general law of divorce prescribed under the provisions of the Act, 1955."

Against this backdrop, dismissing the appeal filed by the wife, the Court expressed its concern that customary divorces are being approved by the Civil Courts even without ascertaining the basic factors regarding the customs prevailing as well as practice. Customary divorce can never be approved nor recognized by the law

Further, the Court also observed thus:

"The Hindu Marriage Act, which was enacted in the year 1955, recognized such customary divorce and now, after a lapse of 64 years, the practice of granting customary divorce can never be adopted nor be followed and the Courts should not approve any such customary divorce granted by few men from the community or the relatives of the husband or wife. In the event of approving such customary divorces, then the implications would be large and we will be marching towards backward and that can never be accepted"

Underscoring the importance of the concept of family, the Court observed that the concept needs to be protected for the development of our Nation and further noted that in Indian society, divorce is a social evil. The Court also stressed that characteristically molded individuals alone can constitute a good family and that a good family constitutes good Nation.

"A good Nation alone can prosper in developmental activities. Thus, good families are the foundation for the development of our great Nation...The man being a social animal cannot live separately. Under these circumstances, on the one hand we are talking about women empowerment, opportunity for women in all fields and at all levels, however, we are neglecting certain other factors, like, grant of divorce, non-maintenance etc.," the Court further added.

Case title - BHARTIBEN W/O AMITBHAI VITTHALBHAI AND D/O RAVJIBHAI KAVANI v. AMITBHAI VITTHALBHAI SOJITRA

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