Exception Of Customary Divorce U/S 29(2) Hindu Marriage Act Not Attracted In Absence Of Declaration From Civil Court Regarding Its Validity: Calcutta High Court

A Single Bench of Justice Sabyasachi Bhattacharyya has made it clear that the validity of such a divorce has to be established by a deed of declaration.

"For Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom, to obtain the dissolution of a Hindu marriage," it held.

Significantly, the position was expounded by the Supreme Court in Subramani & Ors. v. M. Chandralekha, 2005 (9) SCC 407.

The Apex Court had categorically observed, "the requirement to claim benefit of prevalence of customary right to divorce in a community must be specifically pleaded and established by the person propounding such custom…"

Background

The Single Bench was presiding over a writ petition filed against an order of the Assistant Secretary to the Government of West Bengal, denying pension to the Petitioner under the Swatantra Sainik Samman Pension Scheme, 1980.

The Petitioner claimed to be a legally wedded wife of a deceased freedom fighter and sought pension under the said Scheme. She had also relied on a deed of declaration of divorce, purportedly executed by the first wife of the deceased (respondent no.11) and her husband (deceased).

The request was rejected by the Government authority on the ground that such deed of divorce is not acceptable under the Hindu Marriage Act, 1955, in the absence of a decree for divorce obtained from a competent court of law.

Petitioner's Arguments

The Petitioner claimed that Section 29(2) of the Hindu Marriage Act, 1955 is attracted to her case.

The provision provides that nothing contained in the 1955 Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of the Act.

She had also placed reliance on several judgments for the proposition that a divorce deed executed between spouses and duly attested by a notary public, if sanctioned by the customs of the parties, would render the marriage dissolved.

Respondent's Arguments

The Respondent no. 11 opposed the Petitioners claim on the ground that validity of the divorce by the deed of declaration, produced by the petitioner, was not established.

Findings

Agreeing with the contentions raised by the Respondent, the Single Bench observed,

"In the utter absence of any evidence, let alone conclusive, that the divorce decree executed purportedly between respondent no.11 and her deceased husband was endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted."

It added,

"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."

The Court further noted that in each of the judgments cited by the petitioner, a valid decree, sectioning the respective documents of divorce, had been passed by competent civil courts. In the present case, however, no such decree was obtained by the petitioner.

In such a scenario, the Court held, the spouses will have to revert back to Section 13 of the Act, which sanctions dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law.

Before parting, the Bench expressed its inclination towards directing division of pension between the petitioner and the Respondent no.11 equally. However, it refrained from doing so in the absence of any law in that regard.

"Where a conflict arises between individual conscience of the concerned Judge and judicial conscience, supported by law of the land, the former has to give way to the latter," the Bench remarked and dismissed the petition.

Case Title: Krishna Veni v. Union of India & Ors.

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