The Delhi High Court has ruled that customary divorce among Hindus must be proven with strict and credible evidence. Without solid proof, such divorces are invalid, leading to the Court declaring a second marriage legally void.
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NEW DELHI: In a ruling, the Delhi High Court has clarified that customary divorce among Hindus will be recognised only when supported by strict, cogent and credible evidence. The Court stated that customs allowing dissolution of marriage outside the codified Hindu Marriage Act (HMA) cannot be validated merely through oral claims or limited witness testimony.
The judgment was delivered by a Division Bench of Justices Anil Kshetarpal and Harish Vaidyanathan Shankar, who held that any party seeking recognition of customary divorce must meet a high standard of legal proof.
The Bench highlighted that customs contrary to codified law constitute an exception, and therefore require stronger evidence than ordinary claims. The Court stressed that parties must demonstrate:
- Historical prevalence of the custom within their community
- Judicial precedents or earlier judgments recognising the custom
- Documentary proof or community records
- Reference to texts or ancient sources validating the practice
The Bench observed:
“Custom cannot be extended by analogy and it cannot be established by a priori method.”
Case Background
The observations came in an appeal filed by a woman whose second marriage was declared void by a family court. The lower court found that she was still legally married to her first husband at the time of her second marriage.
She argued that her previous marriage had been dissolved by a “panchayati divorce”, allegedly common in the Jat community, and that she entered her second marriage only after obtaining this customary divorce.
However, the High Court ruled that she failed to produce substantial evidence to establish the custom’s validity or longstanding practice within her community.
The only document she submitted was a photocopy of a handwritten divorce deed, which the Court held was no more than a private agreement without legal standing. There were:
- No historical records
- No community resolutions
- No past case examples
- No judicial recognition of the custom
The High Court held that the family court had wrongly accepted the custom and therefore upheld its decision declaring the second marriage null and void.
Under Section 29(2) of the Hindu Marriage Act, customary rights to divorce are preserved, but:
- They must be explicitly pleaded
- They must be proved with strong evidence
- An exception to codified law requires exceptional proof
The Court reiterated that merely asserting that a custom exists is not enough.
Appearance:
For the appellant woman: Advocates SC Singhal, Parth Mahajan, Garvita Bansal and Ritvik Madan
For the respondent husband: Advocates Mrinal Singh and Priya Rani Jha.
Case Title:
SMT. SUSHMA versus SH. RATTAN DEEP & ANR.
MAT.APP. (F.C.) 281/2024 & CM APPL. 48706/2024
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