The Delhi High Court has held that a customary divorce cannot be accepted unless specifically pleaded and established by cogent evidence proving its long usage and force of law. The Division Bench of Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar upheld a Family Court’s decree declaring a marriage void under Section 11 of the Hindu Marriage Act, 1955 (HMA), as the appellant failed to prove that her previous marriage was dissolved by a valid customary divorce before entering into the second marriage.
Summary of Legal Issue and Outcome
The central legal issue before the Court was whether a customary divorce within the ‘Jat’ community was validly established by the Appellant to dissolve her previous marriage. Consequently, the Court had to determine if her subsequent marriage to the Respondent was void under Section 5(i) of the HMA, which prohibits marriage if a spouse is living at the time of the marriage.
The High Court dismissed the appeal, affirming the Family Court’s decision to declare the marriage between the Appellant and Respondent No. 1 as null and void.
Background of the Case
The appeal (MAT.APP. (F.C.) 281/2024), challenged the judgment dated June 7, 2024, passed by the Family Court.
The Appellant was previously married to another individual. She claimed this marriage was dissolved by a customary divorce on May 23, 2009. The Respondent (husband) was also previously married, but his marriage was dissolved by a competent court on May 25, 2009.
The parties entered into a matrimonial alliance on May 16, 2010. A son was born to them on March 15, 2011. Subsequently, disputes arose, and the Respondent filed a petition seeking a declaration that the marriage was null and void. He contended that the Appellant’s previous marriage was subsisting at the time of their wedding, in contravention of Section 5(i) of the HMA. The Respondent claimed he acquired knowledge of this fact on September 25, 2013, and filed the petition in October 2013.
The Appellant maintained that the factum of her previous divorce was known to the Respondent and his family before the marriage. She asserted she had obtained a divorce from her previous husband on May 23, 2009, as per the custom prevailing in their community.
Arguments of the Parties
The Appellant argued that the marriage should not be annulled given that the parties had cohabited and a child was born from the wedlock. She relied on the custom of the ‘Jat’ community to validate her divorce from her first husband.
The Respondent contended that the marriage was void ab initio because the Appellant had a living spouse at the time of their marriage, violating the conditions of the Hindu Marriage Act.
Court’s Analysis
The Division Bench focused on two questions:
- Whether the Appellant successfully proved that ‘custom’ constitutes a sufficient ground to take Panchayati Divorce among the ‘Jat’ community.
- Whether there was a valid Panchayati Divorce amongst the Appellant and her previous husband.
Statutory Provisions
The Court analyzed Section 4, Section 5, Section 11, and Section 29 of the HMA. While Section 29 saves rights recognized by custom to obtain the dissolution of a Hindu marriage, the Court emphasized that the burden of proof lies heavily on the party asserting such custom.
Principles of Proving Custom
Citing the Supreme Court in Bhimashya and Others v. Janabi, the Court observed that a custom must be “immemorial,” “reasonable,” “continued without interruption,” and “certain.”
Referring to Yamanaji H. Jadhav v. Nirmala, the Court reiterated that customary divorce, being an exception to the general law, “ought to have been specially pleaded and established by the party propounding such custom.”
Examination of Evidence
The Court found significant deficiencies in the Appellant’s evidence:
- Witness Testimony: The witnesses examined (RW-2, her father; RW-3, her uncle) were interested witnesses. Independent witnesses RW-4 and RW-5 admitted they did not attend the alleged Panchayat meeting where the divorce was purportedly granted.
- Documentary Evidence: The Appellant produced a photocopy of a “Deed of Divorce” marked as ‘X’, which was executed on September 25, 2013—dates after the second marriage. The Court observed:
“On its careful reading, it is evident that it is only an agreement/mutual settlement between the Appellant and her previous husband… However, neither the scribe nor any of these witnesses have been examined in this matter.” - Lack of Panchayat Records: The Court noted that “neither the scribe nor the witnesses to this agreement have been examined. Such agreement does not fulfil the requirement of the customary divorce as alleged.”
The Court concluded that the Appellant failed to produce any valid ‘panchayatnama’ or evidence of the alleged Panchayat meeting on May 23, 2009.
Decision
The High Court held that the Appellant failed to prove she was divorced from her previous husband as per custom. Therefore, her marriage to the Respondent was solemnized in contravention of Section 5(i) of the HMA.
Regarding the Appellant’s argument concerning the child born of the marriage, the Court held:
“Section 11 of the HMA explains void marriages. It is evident that if any marriage is solemnized amongst the Hindus in contravention of any one of the conditions specified in clauses (i), (iv) and (v) of section 5 of the HMA, such marriage is null and void and not voidable.”
The Court dismissed the appeal and upheld the Family Court’s judgment declaring the marriage void.
