On 09.09.2020, The Madurai bench of Madras High Court passed a Judgment in the case of Sudalaimani vs The Deputy Inspector of Police and other, recognizing the concept of Customary Divorce
Brief facts of Sudalaimini vs Deputy Inspector General of Police, (17504 of 2014)
The petitioner was accused of marrying a second time even though his first wife was still alive and there was no evidence that the petitioner had divorced his wife before marrying a second time.
The Deputy General of police looked into the matter and concluded that the petitioner had violated Rule 23(1)(b) of Tamil Nadu Police Conduct Rules, 1964. As a punishment, his rank was reduced to Gr.1 PC from that of Head Constable for two years.
The contention of the Counsels
Senior Advocate, Mr Veera Kathoravan who is the counsel of the petitioner contended that a customary divorce took place between the petitioner’s first wife and the petitioner in the year 2006 and that he got married a second time soon after that. Therefore the punishment was unwarranted and bad in law.
The counsel appearing for the respondents stated that there were frequent fights between the petitioner and his first wife, and they got separated because the elders of the community had intervened. However, this should not be construed as a legal divorce proceeding, and the counsel also stated that the petitioner never informed his seniors that he got married a second time and this showed malafide intention on the part of the petitioner,
The Court discovered that even though the petitioner was punished for marrying a second time, there was no record that the marriage between the petitioner and his alleged second wife ever took place.
While hearing the arguments of both the parties, the Court also delved upon the concept of customary divorce which has been a long-standing part of the history of our nation and in many areas is still very prevalent.
The petitioner also contended that customary divorce took place between the petitioner and his first wife and was brokered by all the senior members of the community. He placed reliance on Subramani & Ors Vs. M Chandralekha 2005 (9) SCC 407 and Yamanaji H. Jadhav vs Nirmala 2002 (2) SCC 637 where the Court categorically held that ‘if a party pleads customary divorce then it should be established by the person in his pleadings before the Court and the Court may pass a favourable order if the Court determines that such a custom was prevalent in the community. If the person pleading customary divorce cannot prove such a custom, then the Court should not entertain the plea.
The decision of the Court
Justice RMT. Teeka Raman heard both the parties and referred to the case laws submitted by them and held that in the community to which both the petitioner and his first wife belonged, customary divorce through the intervention of elders was common. The terms of the divorce were mutually agreed to by both the parties.
The Court also held that it was proved beyond doubt that there was a marriage dissolution deed which was signed on 02.08.2003 by the petitioner and his first wife and even the delinquent’s first wife admitted to the existence of the deed.
The Court agreed with the statement of the petitioner that customary divorce was prevalent in his community, and he married a second time after his first wife accepted the customary divorce. The Court opined that charges of bigamy could not be levelled against the petitioner.
The Court also noted that the case was not filed by the first wife but by the brother of his second wife and it was done to vilify and pressure the petitioner as a separate property case was going on between the parties.
The Hon’ble Judge stated that a plea of customary divorce is a valid defence in cases of departmental inquiry and held that the disciplinary action that was taken against the petitioner was unwarranted and should be set aside in the interest of Justice. He also allowed the writ petition.