Hindu Marriage Can Be Dissolved Through Customary Divorce If Existence Of Such A Customary Right Is Established : Supreme Court

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

This is by virtue of Section 29(2) of the Hindu Marriage Act 1955, which states the none of the provisions of the Act will affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage.

At the same time, the Court stated that the party relying on a customary divorce deed must prove that such a customary right existed. There has to be a specific pleading before the Court regarding the existence of such a customary right and it should be established through evidence. 

The Court made these observations while considering an appeal filed against a judgment of the Himachal Pradesh high Court which quashed a complaint filed by a wife under the Protection of Women from Domestic Violence Act 2005. The High Court relied on a purported customary divorce deed produced by the husband to quash the DV Act complaint filed by the wife. Challenging the High Court order, the wife approached the Supreme Court.

The husband claimed that the marriage was dissolved through a customary divorce deed. 

The bench comprising Justices Surya Kant and Dipankar Datta observed that the existence of customary right for divorce is a question of fact which is to be established before the civil court in a suit.

"The issue 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 which is required to be specifically pleaded and proved by way of cogent evidence. Such question can ordinarily be adjudicated only by a civil court," the Court observed.

Even if it is assumed that a Judicial Magistrate exercising powers under the DV Act has the competence to decide the validity of a customary divorce deed, the Supreme Court said that such a determination cannot take place merely on an application filed by the husband.

The Court observed that the husband is is obliged to lay proper foundation in pleadings and produce impeccable evidence to prove long time custom and then establish that their marriage was validly dissolved by resorting to customary rights. Unless the husband proves prevalence of the custom in conformity with public policy and the enforceability of the customary divorce deed, the Court added, there is a statutory presumption of subsisting marriage between the parties.

The Supreme Court observed that the High Court legally erred in quashing the DV Act complaint solely on the purported customary divorce deed. The onus to prove the customary divorce deed lies on the respondent(husband) who is relying upon the same, the Court reminded.

The High Court's order was set aside and the matter was remitted back to it for fresh consideration without relying on the customary divorce deed. The question of validity of the customary divorce deed was left to be determined by the court of competent jurisdiction, in accordance with law.

In this regard, reference was made to Yamanaji H. Jadhav v. Nirmala, (2002) 2 SCC 637 which held :