A Hindu couple may get divorced using customary divorce if the custom is proven - Chhattisgarh HC

Case: Duleshwar Deshmukh vs Kirtilata Deshmukh

Bench: bench of Justices Goutam Bhaduri and Radhakishan Agrawal

A Hindu couple may get divorced using customary divorce if the custom is proven and is not against public policy, according to the Chhattisgarh High Court. The division bench held that sub-section 2 of Section 29 of the Hindu Marriage Act, 1995 ("Act") allows divorce by way of customs prevailing in the society. Due to this provision, Hindu marriages may be dissolved either under Section 13 of the Act of 1955 or under any special enactment according to custom.

The bench was hearing a plea filed by a husband contesting the decision of a lower court, pronounced in 2016, refusing to acknowledge the customary divorce agreement "Chhod Chutti" signed by the couple in 1994.

The husband argued that Chhod Chutti was prevailing in his society and, thus, the same was legal under the Act. The wife, however, argued that the husband fraudulently took her signatures on a blank paper and therefore, the customary divorce was not legal. The couple got married in 1982 and started living separately in the 1990s. Their employer, however, did not recognize a customary divorce, so the husband sought a divorce in a Family Court, which granted the divorce ex-parte. In an application filed under Order 9 Rule 13 of the Code of Civil Procedure, the ex-parte order was set aside by the Family Court.

The HC noted that the signatures were not obtained on blank papers. Moreover, the wife and her mother stated that the custom of Chhod Chutti was a custom in their community. The bench further held that in accordance with the evidence, the parties have been separated for a long time and it does not show that there is any intention of reunion.