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customary divorce in india

Worker

http://india.indymedia.org/en/2005/11/211069.shtml

 

with reference to the above article and 



is there any authorized list of castes / communities in which customary divorce is legally allowed ??

 

kindly enlighten 

 
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SSE

 

I am also very much interested to get the list of castes / communities in which Customary Divorce is legal...

kindly enlighten...


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Senior Partner

@ Author,

 

Your que. could be best answered by Legal Anthropologist as Indian customs and traditions are a world to itself.

 

 

However refer to a publication by Professor J. D. M. Derrett, in an important article on customary divorces, 'Divorce by caste custom', at 1963 (65) Bombay Law Reporter, Journal section, pp. 161-169, at p. 169 has concluded that 'the law of customary divorces is a world to itself' from where I quoted opening remarks. .

 

 

Aslo refer to a leading Indian authority on this subject, (late) Professor Paras Diwan, in a book on Customary law (Chandigarh: Panjab University 1984) for answers.

 

 

(Late) Professor Paras Diwan, in the tenth edition of his standard textbook and practitioners' handbook on Modern Hindu law (Allahabad: Allahabad Law Agency 1995), comments in some detail on the relationship of customary and statutory divorces at pp. 162-163. In essence, he confirms that panchayat divorces are an integral part of the Indian matrimonial set-up:

 

 

'The customary divorces may still be obtained through the agency of gram panchayat or caste tribunal or caste panchayats, by private act of parties, orally or in writing, or under an agreement, oral or written ........ The Gram-panchayats and caste-panchayats continue to exercise jurisdiction over customary divorces.

 

 

The fact that S. 29 (2) of the Hindu Marriage Act, 1955 specifically allows for the continuation of customary Hindu divorces signifies for me, in this respect, that Indian law purposefully recognises panchayat divorces as a valid form of divorce proceedings. Thus, I would draw a fine distinction between Hindu customary divorces before a panchayat and the so-called 'bare talaq' under Indian Muslim law, which remains unregulated by Indian state law and thus would probably not qualify under the ambit of Family Court Act, 1984 which is a special enactment and any special act coming in forth overrules earlier Acts such as HMA, 1955 !!!

 

 

Any takers for above observation :-)

 

 

Law in hand for scholarly studies - not raking in recent SC law as your que. revolves first to understand the subject then see its development till recent times hence let us start from its earliest adjudication if it interests you J  

 

 

How the jurisdiction is exercised and when the courts of law may interfere in their adjudication is well illustrated by re.:  Pemabai v. Channoolal. (AIR 1963 MP 57)

http://www.indiankanoon.org/doc/668014/

 

Hope yours enlightenment path are paved in by above motion


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Worker

@ sameer, PM me 

we are sailing in the same boat.

 
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POWER OF DEFENSE IS IMMENSE

However both parties should agree. In Gujrat both parties depart by mutual consent and remarry again without any hassels.

 
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Worker

However both parties should agree. In Gujrat both parties depart by mutual consent and remarry again without any hassels.

 

if something is done & there are no hassels,

DOES IT MEAN THAT the so called ''SOMETHING'' IS LEGAL ??

 
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Worker

Tajobsindia

i m a lay person who hardly understands complex legal language.


would you please, kindly explain the facts stated in ur post in a simple language ??

 
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Worker

if customary divorce is allowed, then

1) why there is a provision for divorce in HMA, 1955 ??

2) dosent customary divorce overridden by section 4 of HMA ??

3) why there are no specific directions regarding customary divorce from the law makers ??

4) 

in our society, some ppl say such divorce is allowed if it is by mutual consent. (indicating no need of courts for divorce)

on the contrary, some ppl from the same society approach courts for contested divorces (& even for mutual divorces u/s 13 B) - isnt this contradictory ??

 
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SSE

 

 

@ JSDN..

>> However both parties should agree. In Gujrat both parties depart by mutual consent and remarry >> again without any hassels.


You are right that in Gujarat, Divorce is obtained thru Stamp Paper. 

 

I am here mainly concern about Second Marriage. 

 

If both the parties agree for Divorce by Mutual Consent without going to court... and later on they married again But What if they found dispute in Another Marriage too? Can’t they challenge Validity of Second Marriage to avoid 498a, DV etc?

 

As one of Law says "Marriage has to be dissolved by a decree of divorce".  

 

Is there any seperate LAW for Divorce in GUJARAT only? Is law different for each STATE in india? or Law is different for each Caste/Community? i.e Divorce Law

 
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Worker

@ Sameer. 

Is there any seperate LAW for Divorce in GUJARAT only? Is law different for each STATE in india? or Law is different for each Caste/Community?

how do u expect answer as : YES ??

 

As one of Law says "Marriage has to be dissolved by a decree of divorce".

it is not ONE LAW !! its stated in HMA 1995 - 

section 13 says - DECREE IS NECESSARY FOR DIVORCE.

section 23 says - DECREE CAN BE GRANTED BY COURT.

 
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