The Supreme Court observed that a Hindu Marriage can be dissolved  through a customary divorce deed, provided the existence of such a customary right is established.

This is by virtue of Section 29(2) of the Hindu Marriage Act 1955 , which states the none of the provision of the Act will affect any right recognized by custom or conferred by any special  enactment to obtain the dissolution of a Hindu Marriage 

At the same time, the Court stated that the party relying on a customary divorce deed  must prove that such a customary  right existed. There has to be a specific pleading before the Court regarding the existence of such a customary right and it should be established through evidence.

The Court made these observation while consideration an appeal filed against the judgment of the Himachal Pradesh High Court which quashed a complaint filed by a Wife under the Protection of Women from Domestic Violence Act 2005. The High Court relied  on a purported customary divorce deed produced by a husband to quash the DV Act complaint filed by the wife. Challenging the High Court order, the wife approached the Supreme Court.

The Husband claimed that the marriage was dissolved through a customary divorce deed.

The Supreme Court observed that the existence of customary right for divorce is a question of fact which is to be established before the civil court in a suit .

The Court observed – “ The issued whether the parties are governed by the custom under which a divorce can be obtained without recourse to Section 11 and Section 13 of the 1955 Act, is a essentially question of fact which is required  to be specifically pleaded and proved by way of cogent evidence. Such question can ordinarily be adjudicated only by a civil court.

Even if it is assured that a Judicial  Magistrate exercising powers under the DV Act has the competence to decide the validity of a customary  divorce deed, the Supreme Court said that such a determination cannot take place merely on the application filed by the husband.

The Court observed that the husband is obliged to lay proper foundation in pleading and producing impeccable evidence to prove long time custom  then establish that their marriage was validity dissolved by resorting to customary rights. Unless the husband proves prevalence of the custom in conformity with public policy and the enforceability of the customary divorce  deed, the Court added, there is a statutory presumption of subsisting  marriage between the parties.

The Supreme Court observed that the High Court legally erred in quashing the DV Act complaint solely on the purported DV Act complaint solely on the purported customary divorce deed . The onus to prove the customary divorce deed lies on  the respondent(husband) who is relying upon the same.

The High Court’s order was set aside and the matter was remitted back to it for fresh consideration without relying on the customary divorce deed. The question of validity to the customary divorce deed was left to be determined by the court of competent jurisdiction, in accordance with law.

Written by Adv Rohit Yadav D/8639/2019

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