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Customary divorce valid under Hindu Marriage Act if custom is proved and not against public policy

Customary divorce valid under Hindu Marriage Act if custom is proved and not against public policy

Duleshwar Deshmukh Vs Kirtilata Deshmukh

Chhattisgarh HC

24/08/2022

FAM No. 145 of 2016

About/from the judgment:

The High Court held that a Hindu couple can get separated by resorting to customary divorce and the same would be upheld if the custom is proved and is not against public policy.

A division bench held that sub-section 2 of Section 29 of the Hindu Marriage Act, 1995 allows divorce by way of customs prevailing in the society.

"It is manifestly clear from plain reading of sub-section 2 of Section 29 of the Act of 1955, that a marriage can still be dissolved in accordance with the custom governing the parties or under any other law providing for the same.The operating words of sub-section (2) of section 29 of the Act of 1955 i.e. 'nothing contained in this Act shall be deemed to affect any right recognised by custom' would lead to demonstrate that the provisions of the Act do not nullify the existence of any custom which confers a right on a party to obtain a dissolution of a Hindu marriage. Normally according to the Hindu Marriage Act, the dissolution of a marriage by the custom is not recognized but the saving clause of sub-section (2) of section 29 recognises the customary divorce unless it is against the public policy," the bench said.

The Court held that as a result of this provision, a Hindu marriage may be dissolved either under Section 13 of the Act of 1955 or under any special enactment in accordance with the custom applicable to the parties.

"Section 29(2) of the Act of 1955 does not disturb the practice of customary divorce occupied before the Act came into force. In other words the explanation carved out by sub section (2) of section 29 operates as an effect that there has been in fact customary divorce can be given effect to," the judges said, adding, "For a custom to have a colour of a rule of law, it is necessary for a party claiming it to plead and thereafter to prove such custom is ancient."

The Court was hearing a plea filed by a husband challenging the decision of a lower court, pronounced on May 13, 2016 refusing to recognise the customary divorce agreement by the name "Chhod Chutti" that the couple signed in 1994.

The husband contended that the custom of Chhod Chutti was prevalent in his society and, thus, the same was legal under the Hindu Marriage Act.

The wife, however, argued that the husband fraudulently obtained her signatures on a blank paper and thus the customary divorce wasn't legal. The couple married on May 15, 1982 and had started living separately since 1990s after differences arose between them.

However, since their employer didn't recognise a customary divorce, the husband filed divorce proceedings before a Family Court, which passed an ex-parte order against the wife granting divorce. The same was challenged by way of an application under Order 9 Rule 13 of Code of Civil Procedure and the same was allowed by the Family Court which set aside the ex-parte order.

The High Court bench, however, noted that the signatures weren't obtained on blank papers and the trial court had negated that argument by the wife.

It also noted that both the wife and her mother had stated that the custom of Chhod Chutti was prevalent in their community.

It further took into account the statements of the witnesses to the deed of divorce, who stated that the customary divorce was recognised in the community.

Thus, Chhod Chutti the Court proceeded to consider the facts of the case.

"The reading of the evidence would show that the parties have separated since long and with the passage of time it do not show that there is any intention of reunion," the bench observed.

"Therefore, under these circumstances, we are inclined to allow this appeal," the Court ruled.

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