after a year i got divorced according to our customs.
the burdon of proving the custom is upon yourself.
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.
in 2007 april got married again
if u can not prove a valid customary divorce, ur second marriage is null and void.
they want mutual divorce from me.
if they themself claim that ur first marriage is NOT legally dissolved, then divorce is NOT applicable for the second marriage, since the second marriage is void from the inception.
they have come up that my first marriage was not legally divorced.
yes - their claim is maintainable.
they were aware of my first marriage
Bombay High Court
Mangala D/O Dinkar Shankar ... vs Laxman Ganpat Jadhav
on 19 September, 2007
Equivalent citations: 2008 (1) MhLj 244
7. Thus, three types of decrees in law are different. First is a nullity of marriage; second is a voidable marriage and; third is a divorce. These are the different remedies provided under the law in different situations and circumstances. In the present matter the respondent was having his first wife -Sushila alive at the time of his marriage with the present appellant. Section 5(i) of the Act requires that either spouse to the marriage shall not have a living spouse at the time of marriage, and if the first spouse of the party is living then the marriage is void ab-initio. In this matter whether the fact of the first marriage was within the knowledge of the second spouse or not, is not a relevant factor. The second marriage may be without the knowledge and/or with the knowledge of the first marriage. Whatever may be the circumstances such second marriage is a void marriage.
That marriage does not exist in the eyes of law. It is non-est marriage or it is a nullity.
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)
