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If custom is proven and does not conflict with public policy, customary divorce is permitted under the Hindu Marriage Act: Chhattisgarh High Court

According to a recent Chhattisgarh High Court decision, provided a custom is supported and is not in conflict with public policy, a Hindu couple can choose to divorce using traditional means. [Duleshwar Deshmukh vs Kirtilata Deshmukh]

Subsection 2 of Section 29 of the Hindu Marriage Act, 1995, according to a division bench of Justices Goutam Bhaduri and Radhakishan Agrawal, permits divorce based on societal conventions.

A marriage can still be dissolved in line with the custom ruling the parties or under any other legislation allowing for the same, as is evident from a simple reading of sub-section 2 of Section 29 of the Act of 1955. No provision of this Act shall be regarded to impair any right recognised by custom, according to sub-section (2) of section 29 of the Act of 1955, which would indicate that the Act’s provisions do not abolish any custom that gives a party the ability to dissolve a Hindu marriage. However, the saving clause of sub-section (2) of section 29 recognises the customary divorce unless it is against to public policy, the judge observed. Normally, the Hindu Marriage Act does not accept the dissolution of a marriage by custom.

According to the Court, this clause allows for the dissolution of a Hindu marriage under Section 13 of the Act of 1955 or under any other special legislation in line with the parties’ local custom.

“The usual divorce practice that existed prior to the passage of the Act of 1955 is unaffected by Section 29(2) of that Act. The judges explained, “In other words, the explanation made possible by subsection (2) of Section 29 operates as an effect that there has actually been a customary divorce can be implemented. For a custom to have the status of a rule of law, it is necessary for a party asserting it to plead and then to prove such custom is ancient.”

The Court was considering a husband’s appeal of a lower court’s refusal to recognise the couple’s 1994 “Chhod Chutti,” or “Chhod Chutti,” conventional divorce arrangement. The appeal was brought by the husband

The husband argued that since Chhod Chutti was common in his society and was thus permitted by the Hindu Marriage Act.

However, the wife claimed that the conventional divorce was illegal since the husband had deceptively acquired her signatures on a blank piece of paper. The pair wed on May 15, 1982, and began living apart in the 1990s as a result of their disagreements.

The husband sought divorce before a Family Court, but that court ultimately issued an ex-parte decision against the wife granting divorce since their job would not recognise a conventional divorce. The ex-parte order was challenged by filing an application according to Order 9 Rule 13 of the Code of Civil Procedure, which was approved by the Family Court.

The wife’s claim had been refuted by the trial court, according to the High Court bench, which highlighted that the signatures weren’t gathered on blank documents.

It was also highlighted that the mother and wife both said that Chhod Chutti was a common habit in their neighbourhood.

It also considered the testimony of the divorce deed’s witnesses, who said that the society recognised the usual divorce.

The Court then started to analyse the case’s facts, Chhod Chutti.

The bench noted that the evidence “would suggest that the parties have been apart for a considerable amount of time and with the passage of time it does not show that there is any intention of reunion.”

As a result, the Court stated, “Under these circumstances, we are inclined to approve this appeal.”

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