The Supreme Court has clarified that while a Hindu marriage can be dissolved through a customary divorce deed, it is imperative to establish the existence of such a customary right. This stance is rooted in Section 29(2) of the Hindu Marriage Act 1955, which asserts that the Act’s provisions won’t impact any right recognized by custom or granted by a special enactment to dissolve a Hindu marriage.
However, the Court emphasized that the party invoking a customary divorce deed bears the responsibility of proving the existence of such a customary right.
“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.
This directive came while the Supreme Court was reviewing an appeal against a Himachal Pradesh High Court judgment. The High Court had nullified a complaint lodged by a wife under the Protection of Women from Domestic Violence Act 2005, based on a purported customary divorce deed presented by the husband. In her challenge to the High Court’s decision, the wife approached the Supreme Court.
The husband’s defense was that their marriage had been dissolved through a customary divorce deed. The Supreme Court highlighted that determining the existence of a customary right for divorce is a factual matter to be settled before a civil court.
Furthermore, the Court noted that even if a Judicial Magistrate, under the DV Act, possesses the authority to decide the validity of a customary divorce deed, such a decision can’t be made solely based on an application from the husband.
The husband, the Court stated, must provide a solid foundation in pleadings and present irrefutable evidence to validate a long-standing custom. Only then can he establish that their marriage was legitimately dissolved through 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 concluded that the High Court had made a legal misstep by dismissing the DV Act complaint based solely on the alleged customary divorce deed. The responsibility to validate the customary divorce deed rests with the respondent (husband) who relies on it, the Court reiterated.
The High Court’s decision was overturned, and the case was sent back for reconsideration without referencing the customary divorce deed. The issue regarding the validity of the customary divorce deed will be determined by the appropriate court, following the law.