SC says Hindu marriage can be dissolved through a customary divorce deed if such a customary right is established through existence: matter remitted back to HC

The Supreme Court of India recently observed that a Hindu marriage can be dissolved through a customary divorce deed, provided that the party relying on the same should prove that such a customary right exists. The bench also said that a specific pleading regarding the existence of such a customary right should be established through existence before the top Court. This is identified in context with Section 29(2) of the Hindu Marriage Act of 1955 which states that any right recognized by custom or conferred by any special enactment to obtain the dissolution of Hindu marriage will not be affected by the provisions of the Act. 

These observations were made while considering an appeal filed against the Himachal Pradesh High Court’s judgment quashing a wife’s complaint under the Protection of Women from Domestic Violence Act of 2005. While delivering the judgment, the HC relied on the purported customary divorce deed produced by the husband in order to quash a complaint filed by the wife. Aggrieved by the decision of the HC, the wife approached the Supreme Court challenging the HC’s order. During the SC proceedings, the husband claimed that dissolution of the marriage was conducted through a customary divorce deed. 

The SC bench observed, “The issue whether the parties are governed by the custom under which a divorce can be obtained without resource to Sections 11 and 13 of the 1955 Act, is essentially a 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.” The top Court also highlighted that a mere application filed by the husband cannot allow the Judicial Magistrate to decide the validity of a customary divorce deed. It added that the husband has to lay a proper foundation in pleadings and produce evidence to prove long-time custom. Further, the husband has to establish that their marriage was dissolved by resorting to customary rights.

Moreover, the Supreme Court set aside the HC’s order and remitted the matter back to it for fresh consideration without relying on a customary divorce deed