All You Need To Know About Customary Divorce

Law
12-Jun-2024
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Divorce in India may be a difficult legal procedure, impacted by many personal laws and customs. While court-based divorces are well-known, another important but little-known facet of Indian marriage law is customary divorce. The term "customary divorce" describes the breakup of marriage by customs that are accepted by particular groups, usually without the participation of the courts. Even though it's often believed that Hindu weddings are irreversible, several lower-caste Hindu communities have long allowed and conducted customary divorces.

What Is Customary Divorce?

In simple language, a customary divorce is a recognized method of separation that does not involve a Court but such customs are recognized by certain marriage laws. Contrary to the popular belief that Hindu marriages have indissolubility, a sizable portion of Hindus from lower castes have historically practiced divorce. These traditional divorce procedures were accepted by the courts and society alike. The typical customary forms are mutual consent, unilaterally, and by the deed of divorce.

Is Customary Divorce Valid In India?

In the case of Sanjana Kumari v. Vijay Kumar 2023 Live-law (SC) 848, the Supreme Court noted that, given the presence of a customary right, a Hindu marriage may be terminated by means of a usual divorce deed. This is due to Section 29(2) of the Hindu Marriage Act of 1955, which declares that no provision of the Act shall impair any customary or particularly enacted right to seek the dissolution of a Hindu marriage.

Legal Recognition Of Customary Divorce

Simultaneously, the Court declared that the party depending on a customary divorce deed needs to demonstrate the existence of the usual entitlement. The Court must receive a particular pleading demonstrating the existence of such a customary right, supported by proof.

While reviewing an appeal against a ruling by the Himachal Pradesh High Court that dismissed a wife's complaint under the Protection of Women from Domestic Violence Act of 2005, the Court made these observations. The husband's alleged customary divorce decree was used by the High Court to invalidate the wife's DV Act case. The wife went to the Supreme Court to contest the decision made by the High Court.

The spouse said that a traditional divorce decree was used to end the marriage. The panel, which included Justices Surya Kant and Dipankar Datta, noted that establishing the existence of a customary right to divorce is a factual matter that must be proven in a civil court proceeding. "It is basically a question of fact that needs to be expressly argued and supported by convincing evidence: whether the parties are bound by the custom that permits a divorce to be granted without using Sections 11 and 13 of the 1955 Act. Generally, only a civil court is qualified to decide such a matter," the Court noted.

Even while it is presumed that a Judicial Magistrate using the DV Act's authority can determine whether a customary divorce deed is genuine, the Supreme Court ruled that this cannot be done based on an application that the husband files.

The Court said that in order to demonstrate long-standing customs and demonstrate that their marriage was lawfully dissolved by using customary rights, the husband must first create a solid legal foundation in his pleadings and provide flawless proof. The husband is presumed to be married until he can demonstrate that the custom is prevalent and in line with public policy, as well as that the usual divorce decree is enforceable.

The High Court quashed the DV Act complaint based only on the alleged customary divorce document, which the Supreme Court said was a legal error. The Court reminds the respondent, or husband, who is relying upon the typical divorce deed, that he bears the burden of proving it.

The ruling of the High Court was overturned, and the case was returned to it for further review without reference to the normal divorce document. The legitimacy of the customary divorce deed had to be decided by a court with appropriate authority, in compliance with the law.

Regarding this, Yamanaji H. Jadhav v. Nirmala, (2002) 2 SCC 637, was cited, holding:

“...such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such a custom, since the said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy.”

Additionally, Subramani v. M. Chandralekha, (2005) 9 SCC 407, was cited. It held

"It is well established by a long chain of authorities that the prevalence of customary divorce in the community to which parties belong, contrary to the general law of divorce, must be specifically pleaded and established by the person propounding such custom".

The ruling in Swapnanjali Sandeep Patil v. Sandeep Ananda Patil, (2020) 17 SCC 510, from 2019 is cited.

Understanding Customary Divorce Under the Hindu Marriage Act 1955

According to the Act, a custom or usage is any rule that has been consistently followed for a long time, gained legal status in a local area, tribe, community, group, or family, is not irrational or against public policy, and has not been abandoned by the family. The rights recognized by customs are expressly protected by Section 29(2). This section is in accordance with the Hindu Law principle of "Hindi Matter," which states that a custom supersedes statutory law if it is long-standing, ongoing, and does not conflict with public policy.

Therefore, divorce can be acquired under section 13 of the Act or by adhering to the widely accepted divorce custom. "Customary Divorce" refers to a divorce that is granted in accordance with common tradition.

In the case of Doddi Appa Rao vs. General Manager, Telecom, Rajahmundry, the Hon'ble High Court of Andhra Pradesh unequivocally declared that “The Hindu Marriage Act establishes the basis for divorce proceedings between married spouses. The Hindu Marriage Act's Section 13 lists the reasons. The parties to the marriage may be divorced by the civil court upon filing a divorce petition and if the grounds stated in the petition are established. Even though Section 13 of the Hindu Marriage Act establishes grounds and remedies for the dissolution of marriage, the Hindu Marriage Act still recognizes divorce based on tradition. Section 29(2) of the aforementioned Act contains the aforementioned clause.”

The courts acknowledged the legitimacy of a traditional divorce as early as 1968 in Gurdit Singh vs. Mst. Angrez Kaur and others and a number of other instances that followed.

Section 4 and Section 29(2) of the Act are at odds with one another.

Although customs are protected by Sections 3(a) and 29(2) of the Act, Section 4's overriding impact has forced courts to consider issues about the conflicts between the sections.

The question of whether a tradition for dissolving marriages is protected by Section 29(2) of the Act or violated by Section 4 was brought before the Hon'ble High Court of Delhi. "The opening words of this Sub-section viz 29(2) "Nothing contained in this Act shall be deemed to affect any right" leave no room for doubt that the provisions of the Act do not nullify the existence of any custom which confers a right on a party to obtain the dissolution of a Hindu marriage," the Delhi High Court held, keeping the precedent of Section 29(2). This subsection so specifically saves the legitimacy of any traditions acknowledging the right to terminate a marriage."

Comparably, in the year 2000, the Madras High Court held in the P. Mariammal v. Panamanian's case that "The scheme and object of the present Act are not to override any such custom which recognizes divorce and effect is given to the same by the saving contained in this subsection vis section 29(2)" in response to a dispute arising between Sections 4 and 29(2). This upheld the saving of customs under Section 29(2) once again.

As a result, marriages consummated in accordance with the Act may be dissolved pursuant to section 13 or in accordance with local, caste, or other customs. However, the party asserting the conventional divorce's legitimacy will need to acquire a decree declaring that the marriage was lawfully dissolved in the event that the divorce's validity is contested. Additionally, the party relying on a customary divorce bears the responsibility of proving both its existence and the legal acknowledgment of it. The individual loses their right to have their usual divorce recognized if they don't meet the requirements.

What Is The Legal Procedure To Get a Customary Divorce In India?

The legal procedure for getting a customary divorce in India is quite different for all of its religions.

All religions would have to continue their own practices, like Hindu law, to have the mutual consent of the partners, community approval, and customs verification, whereas Muslim law would have procedures like Talaq, Khula, and Mubarat. After this, both laws would require documentation of the said divorce and then that would seek legal recognition. Since Section 29 of the Hindu Marriage Act supports it fully, it becomes quite smooth for Hindu law to seek customary divorce.

On the other hand, laws like Christian Law, Parsi Law, the Special Marriage Act, etc. mostly require the basic procedure, like petition for divorce, grounds for divorce, followed by court procedure to seek a divorce.

Again, it is advised to seek professional support in such cases, because cases have the tendency to be extremely subjective, and the legal experts can help you with the same.

Landmark Judgement

Here are a few landmark judgments that are related to divorce through customary Hindu practices:

In Shakuntala Bai v. Kulkarni (1989), the Supreme Court ruled, based on a conjoint reading of sections 29 and 4 of the Hindu Marriage Act, that long-standing, unbroken divorce rituals are still legal as long as they are moral in nature and do not conflict with public policy. The court further stated that where the dissolution of marriage has been accomplished by a legally recognized customary practice, there is no need to file a second divorce petition under Sections 13 or 13B of the Act.

The Chhattisgarh High Court ruled in the case of Duleshwar Deshmukh v. Kirtilata Deshmukh (2022) said that a divorce obtained by the traditional practice of "chod-chutti"—which allows for the simple execution of a document—was lawful. The court decided that although conventional divorce procedures like "chod-chutti" are permissible, their effectiveness depends on whether or not they can be shown to be in line with public policy.

The Gujarat High Court ruled in Twinkle Ramesh Kumar Dhamaliya v. Superintendent, Regional Passport Office, Ahmedabad, 2006 that traditional divorce is accepted as a method of Hindu marital dissolution under the Hindu Marital Act of 1955. Only in situations where one or both parties to the deed disagree with the custom that is widely observed in society will the person proposing the custom be required to justify the preponderance of customary rights to divorce.

The Gujarat High Court decided in the case of Dipika Amrutlal Patel v. Vishwam Pamanand Patel that the Family Court may rule in declaratory litigation that the customary deed carried out between the spouses is legitimate and legal.  Furthermore, the family court might decide that, as a result of the stated customary divorce deed, the parties to the deed have ceased to be husband and wife as of the date of the customary divorce deed's execution.

The court concluded in Smt. Krishna Veni Vs The Union Of India And Others that obtaining a customary divorce is unlikely to fall under the Hindu Marriage Act's Section 29(2) exception. It goes without saying that the party relying on a custom must show that the party's right to demand the dissolution of a Hindu marriage was accepted by custom in order to invoke Section 29(2) of the 1955 Act.

Conclusion

India's diverse legal system and rich cultural heritage are reflected in the country's customary divorce practices. A different route for ending a marriage outside of formal court procedures is provided by customary divorce, which is acknowledged by some personal laws and upheld by a number of court decisions. While Section 29(2) of the Hindu Marriage Act expressly recognizes such traditions in Hindu law, other religions have unique customs that also need legal recognition. The necessity of meticulous documentation and proof to prove the validity of traditional divorces has been emphasized by landmark rulings. In order to ensure that their rights are upheld and acknowledged by the legal system, anyone seeking a divorce under customary law must be aware of the subtleties of these procedures.