Customry divorce

Dr J C Vashista (Advocate) 10 February 2015

Divorce is valid only through a decree passed by Court.

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saravanan s (legal advisor) 10 February 2015

divorce can be got only through court.anything else is illegal and proceeding for another marriage would be bigamy in the eyes of law

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ramesh 10 February 2015

all right. I didnt know it and took customary divorce and got married with another girl. Now her parents have filed suite against me for marriage nullity alleging me to cheat her for hiding fact that i am not divorce. However I have produced sub registrar deed at the time of getting marry with another girl, but now I realise that I am wrong in the eye of low. So as I have already filed for divorce with my first wife. But waiting from court's end to grant me decree. I want to save my 2nd marriage, its just i was not aware of law, but my intention was not malign

Adv k . mahesh (advocate) 10 February 2015

you can explain through your lawyer in the court and file the petition for divorce as your ex wife is also ready and also she gave divorce in another way so both file a divorce petition as she will not contest and get divorce decree

in mean time discuss with your in laws and settle the issue before it goes from your hand and explain them about your stand

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ramesh 10 February 2015

Yes my x-wife is ready to co-operate, and we have already filed for declaration suite of divorce decree and asked for decree in favour of us from previous date ( from the date actually customary divorce happened with sub-registrar ). Now lets see if court grants or not....

Note : My x-wife is already married and having baby so as it will spoil 4 ppl's life is court doesnt give us divorce decree

Danny (Jr. Officer) 10 February 2015

Wow!!!

How Lucky you are...

Your ex-wife is ready to co-operate...

and The best part is your ex-wife have already get married.

In this situation , I guess you will not be charged any alimony/compensation.

(only in case you & your ex-wife don't have any girl child)

Although you 2 are in agree to divorce, it will take 6 months in the course of the Court at the earliest.

All the Best....

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Adv k . mahesh (advocate) 10 February 2015

in my view this judgement will be very much useful for others who face such situation but decree will be granted on the judgement date which is applicable from the date of registration in sub registrar subject to

i think court will grant in the same way after hearing from both the sides

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Shantanu Wavhal (Worker) 11 February 2015

pathetic !!

second marriage is NULL & VOID ... nothing can make this marriage VALID.

u have spoiled ur own case of CUSTOM by filing divorce case with your first wife. custom has to be COMPULSORY and NOT optional, dude !!

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Shantanu Wavhal (Worker) 11 February 2015

mere existence of divorce deed does not prove the custom.

the divorce deed has no value at all in the absence of proof of custom

.

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ramesh 12 February 2015

Well I and my x-wife have filed for declaration of divorce suite under section 7B. It's not divorce petition, but declaration of divorce. So that we have requested court to give us divorce decree with effect from divorce deed filed from sub-registrar ( 4 yrs back ).

Note : My x-wife has settled in her second marriage and got baby girl. Will court not understand to give us divorce decree from earlier date of customary divorce date ? So as to prevent our 2nd marriage also.

Court is in favour of saving marriage life or spoiling ?

Adv k . mahesh (advocate) 12 February 2015

normal speaking as per law a divorce decree obtain from court is valid any where and it is the procedure and how come you dont know this simple procedure who drafted it and registered should have coutioned you about the same

that why i had told you that you both have filed the declaration of divorce petition in the court and court will consider your plea and will grant the same but the the date of the judgement will be present date and will add that the order is valid from the date of registration at sub registrar office

because and depends on your lawyer who present your case

what your lawyer said about this

Shantanu Wavhal (Worker) 12 February 2015

stop childish hair-spitting and try to understand the legal position.

read and understand

3. Definitions

In this Act, unless the context otherwise requires,

(a) the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family;

PROVIDED that the rule is certain and not unreasonable or opposed to public policy;

PROVIDED FURTHER that in the case of rule applicable only to a family it has not been discontinued by the family;

Bombay High Court

Bhaskar Tanhaji Dhokrat vs Mrs. Parwatabai Bhaskar Dhokrat ...

on 6 September, 1995

(1996) 1 Bom CR 311

Bench: A Mane

6. Now, there is no quarrel on a proposition that it is incumbent on the party setting up such a custom to allege and prove custom and it is not a theory of custom or deductions from other customs which can be made a rule of decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case. It is also equally true that the custom cannot be extended by analogy and it cannot be established a priori methods. A custom to be recognised by the courts should be (a) ancient, (b) continuous and uniform, (c) reasonable, (d) certain, compulsory and not optional, (e) peaceable and lastly, (f) not immoral. The custom which is recognised under the Evidence Act is a general custom, i.e. the custom common to a class of people living in the same district or belonging to the same caste or community. Therefore, in order to prove a custom there should be evidence of such a nature so as to prove uniformity and continuity of usage and the conviction of those following it that they were acting in accordance with law and this conviction must be inferred from the evidence. Moreover, the evidence of acts of kind, acquiescenee in those acts, their publicity, decision of courts or even of panchayats upholding such acts, statements of experienced and competent persons of their belief in such acts were legal and valid will all be admissible but it is obvious that although admissible evidence of this later kind will be of little weight if unsupported by actual examples of usage asserted.

Supreme Court of India

Yamanaji H. Jadhav vs Nirmala on 1 February, 2002

AIR 2002 Supreme Court 971

Bench: N S Hegde, D Raju

In the view that we are inclined to take in this appeal, we do not think it is necessary for us to go into the contentions advanced by the learned counsel for the parties in this case, because we find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong to. As per the Hindu Law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus 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 custom since 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. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the court.

Supreme Court of India

Subramani And Ors. vs M. Chandralekha on 23 November, 2004

AIR 2005 Supreme Court 485

Bench: A Bhan, A Mathur

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

14. From a perusal of the above averments in the pleadings, it is clear that defendants-appellants did not plead that in their community marriage could be dissolved under custom. They even failed to respond to the averments made in the plaint that no custom was prevalent in their community to dissolve the marriage under custom. In the absence of such pleadings the Trial Court rightly did not frame an issue as to whether the marriage in the community to which the parties belong could be dissolved under the custom prevalent in their community.

15. Though no issue was framed on this point the appellants did examine DWs. 2 to 5 to show that in their community marriage could be dissolved under the customary law. We have gone through the statements of these witnesses which have been reproduced verbatim after translation in the order of the Trial Court. On perusal of their testimonies, it cannot be held that custom was prevalent in their community to dissolve the marriage by mutual consent. Neither of these witnesses has stated as to what is the procedure to be followed for dissolving a marriage under the custom prevalent in their community.

Supreme Court of India

Subramani And Ors. vs M. Chandralekha on 23 November, 2004

AIR 2005 Supreme Court 485

Bench: A Bhan, A Mathur

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

14. From a perusal of the above averments in the pleadings, it is clear that defendants-appellants did not plead that in their community marriage could be dissolved under custom. They even failed to respond to the averments made in the plaint that no custom was prevalent in their community to dissolve the marriage under custom. In the absence of such pleadings the Trial Court rightly did not frame an issue as to whether the marriage in the community to which the parties belong could be dissolved under the custom prevalent in their community.

15. Though no issue was framed on this point the appellants did examine DWs. 2 to 5 to show that in their community marriage could be dissolved under the customary law. We have gone through the statements of these witnesses which have been reproduced verbatim after translation in the order of the Trial Court. On perusal of their testimonies, it cannot be held that custom was prevalent in their community to dissolve the marriage by mutual consent. Neither of these witnesses has stated as to what is the procedure to be followed for dissolving a marriage under the custom prevalent in their community.

Bombay High Court

Virendrakumar S/O Gulabchand ... vs Preeta W/O Virendrakumar Runwal on 18 March, 2009

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

SECOND APPEAL NO. 286 OF 2008.

2009 (3) Bom CR 798; 2009 (111) Bom LR 1586

4. The substantial question of law that arises for consideration in this appeal is whether respondent Preeta proved that there was custom of private divorce with mutual consent in her community and accordingly her marriage with Rajendrakumar Gilda had been dissolved.

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13. Custom is a long standing practice followed and recognised by particular community. So in the circumstances it will have to be stated as to which persons from the same community had obtained divorce as per custom, what was the custom and since when such custom was being followed. No such details are given either in pleadings or in evidence.

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14. ..... Merely stating in the divorce-deed that there was custom is not sufficient. It will have to be proved as held by the Supreme Court in the case of Yamanaji (supra). The (-11-)

learned District Judge has curiously relied upon the certified copy of deposition of Virendrakumar recorded by the Judge, Family Court, Bijapur. The cross-examination is recorded in Kannad though examination-in-chief is in English. Translation of the cross-examination is made available by Shri Sonpethkar, advocate for the respondent. There is statement in the second paragraph of cross-examination, “It is true to suggest that I have married defendant after due verification of her divorce papers.” In my considered opinion, this admission does not prove custom of divorce.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 2425 OF 2004

Majlis Manch VERSUS State of Maharashtra & Ors.

DATE: FEBRUARY 9, 2005.

10. During the pendency of the public interest litigation, the Court also directed the respondents to ensure that instructions are issued with the aim of educating people how marriages are solemnised and divorces are granted. We also directed respondents No. 1 and 2 to file affidavit, placing on record the steps taken by them.

Supreme Court of India

Savitaben Somabhai Bhatiya vs State Of Gujarat And Ors

on 10 March, 2005

CASE NO.: Appeal (crl.) 399 of 2005

[2005] RD-SC 162

But it does not further the case of the appellant in the instant case. Even if it is accepted as stated by learned counsel for the appellant that husband was treating her as his wife it is really inconsequential. It is the intention of the legislature which is relevant and not the attitude of the party.

In Smt. Yamunabai’s case (supra) plea similar to the one advanced in the present case that the appellant was not informed about the respondent’s earlier marriage when she married him was held to be of no avail. The principle of estoppel cannot be pressed into service to defeat the provision of Section 125 of the Code.(Page 4)

Bombay High Court

Tejaswini D/O Anandrao Tayade And ... vs Chandrakant Kisanrao Shirsat And ... on 25 February, 2005

Equivalent citations: 2005 (3) MhLj 137

12. ..... The marital tie between the parties cannot be put to an end by execution of the customary divorce deed and the parties can avail the remedies under the civil law if at all they want to compromise the matter by mutual consent. It is obvious that unless there is a decree of divorce passed by the competent Court under Section 13-A or 13-B of the Hindu Marriage Act, 1955, it is not possible to accept that the marriage can be dissolved by entering into the consent deed and/or divorce deed.

Bombay High Court

Smt. Jatina Samir Shah Nee } vs Shri Samir Mohit Shah, Of Bombay }

on 7 October, 2008

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

FAMILY COURT APPEAL NO.160 OF 2008

6. ..... The spouses cannot dissolve the marriage on their own by entering into any sort of agreement and such type of agreement cannot be recognised by the court of law unless satisfactory evidence is led before the court, 5

that by virtue of custom, a customary divorce has been obtained by them. In the instant case, the family court has not recorded any finding that the marriage was legally dissolved by entering into such an agreement on the basis of any custom. Unless there is any evidence in this behalf, an agreement produced before the court was nothing but a mere piece of paper which has no evidentiary value at all. By entering into such an agreement, a marriage can never be said to be dissolved in any manner. The learned Judge, therefore, in our view, committed an error in coming to the conclusion that in view of the agreement between the parties there was no subsisting marriage between the appellant and respondent at the time of filing of the application and that such marriage stood dissolved at the time of filing of this application. No weigtage can be given to such an agreement by the court and therefore it can be said that the marriage was subsisting irrespective of such an agreement on the date of filing of the application. No marriage can be said to have been dissolved by entering into such type of agreement, unless an appropriate evidence is produced before the Court showing that a marriage can be dissolved between the parties by way of customary divorce, in view of prevailing custom in the community. In the instant case, no such evidence is 6

produced and therefore the marriage can be said to be subsisting and it can on the date of the filing of the application and such marriage can be dissolved only by passing a decree by the competent court. .....

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ramesh 12 February 2015

Got it. Thanks.

Both lawyers from my side as well as my x-wife's side have proposed into court that we have taken customary divorce ( which happens here often in my community ). But as you said it's become like an option. Some of them may go to court / some of them may go through sub-registrar office - customary way. So it's even not relligeously followed in my caste.

By the way how much time does it take normally when both the parties are in agreement ? 2 months ? 6 months ?

T. Kalaiselvan, Advocate (Advocate) 12 February 2015

Since you have filed a suit before the civil cour to declare the divorce of your marriage registered before the sub-registrar, and also as the ex-wife has no issues to contest your case, upon receiving the summons, she can very well file a memo before the court submitting to the decree prayed for, in turn the court may also go ahead with the disposal of the suit accordingly and the divorce can be declared from the date of registration itself which will enable the subsequent marriage to be valid. You are proceeding in a right way, follow it up meticulously.

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