According to the traditional Hindu law the concept of divorce was an unknown facet, but as the society kept growing & enhances its branches in the field of relations; the complexities in a Marriage starts to begin. This led to the emergence of the concept of separation which eventually leads to the concept of permanent separation of spouses.
The marriage is deeming to be a sacred sacrament; where a party to the marriage is tied in a knot of responsibility with each other for a lifetime. But keeping in view the modern changes that the society is adapting in it the concept is more prevalent nowadays.
The traditionalist never accepts the concept of divorce and still considers it as a sin in marriage. But there are many parts of society that are growing with the modern norms and accepting this part of the separation.
This led to the emergence concept of customary divorce. Contrary to the general notion regarding the indissolubility of Hindu marriages a large section of Hindus among the lower caste is in favor of customary divorce. They are following it traditionally and the social norms and judicial interpretation accepts this type of customary divorce.
A customary divorce deems to be a recognized method of separation of slides in which they didn’t involve the court; on a condition that the same custom is somewhere recognized by the marriage laws. Section 29(2) of the Hindu Marriage Act, 1954 deals with the customary divorce. It recognizes the customary divorce if the custom allows and is valid.
We can trace out 3 forms of customary divorce from the prevalent forms of divorce:
Through mutual consent:
This custom is more prevalent among some castes in Bombay, Madras, Mysore, and Kerala. It is a settled norm in Madhya Pradesh that divorce by way of mutual consent is custom in Patwa of State. Among the Banaarasi Chaurasiya of UP, a form of agreement is seen as a valid divorce by the Allahabad court.
In a custom in Manipur, the authority is with the husband to end a marriage without any reason on his pleasure.
In the Pakhali community and Rajpur Gujarati when the husband abandons the wife the marriage deems to dissolve and in Gorakhpur, Vaishyas in UP a husband when abandons the wife will amount to divorce
Divorce by deed
A divorce by way of an agreement can also take place this is most prevalent in south India, Himachal, and jaats. Supreme Court upheld the deed by a husband divorcing his wife.
The validity of the customary divorce
These types of divorce take place with the help of panchayat. Where such is not in practice the courts didn’t allow the panchayat to take calls on such matters. But once the party proves the custom is the court will thus not intervene in that matter. The court had thoroughly researched the matter; with a lot of judicial scrutiny on the rejection and upholding of such divorce practice. And for interpreting the court follows strict rules of interpretation. [divorce lawyer in gurgaon]
The customary form of divorce on one hand is termed to be an advantageous form that saves time and; money in proceedings. But on the other hand, it can be termed as an arbitrary form of divorce on part of the husband leaving the wife unexpectedly and in which the status of a child can be affected
The law ministry should have a look upon the matter concern and prepare the in-depth records of the customs in which recognizes this kind of divorce. It also asks to set up a panel for socio-legal experts to determine the validity of such customs.
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