Customary divorce among Hindus outside of Hindu Marriage Act can be recognised only based on solid evidence: Delhi HC

The Delhi High Court has held that customary divorce among Hindus can be recognised only when proved with strict and cogent evidence, not by a priori method. 

A Division Bench of Justices Anil Kshetarpal and Harish Vaidynathan Shankar said that a custom of dissolution of marriage cannot be proved merely by examining a few witnesses.

Once the Court is called upon to declare that there exists a custom contrary to the codified Hindu Marriage Act, the burden of proof is heavy on the party asserting the custom, the Court stressed. 

“It is expected from the parties to prove the prevalence of customary divorce in their area/community by producing judgments that recognise their custom and show past instances of customary divorce in the community. One of the ways to prove the custom is reference to any text or interpretation of Hindu law or usage for long period of time. Once the Court is called upon to declare that there exists a custom which is contrary to the codified law, the burden of proof is heavy upon the party asserting custom. Custom cannot be extended by analogy and it cannot be established by a priori method,” the Bench said. 

The Court made the observations while dismissing an appeal filed by a woman against a family court order declaring her second marriage void under the Hindu Marriage Act. The family court had found that the woman was married to another man when she tied the knot with her current husband. 

It was the woman’s case that her earlier marriage had been dissolved through a “panchayati divorce” prevalent in the Jat community. She said that only after obtaining the divorce did she marry her second husband and have a son as well. 

The High Court examined the provisions of the Hindu Marriage Act and emphasised that while Section 29(2) preserves rights recognised by custom to dissolve a Hindu marriage, such customs constitute an exception to the general law and must therefore, be strictly pleaded and proved. 

Although the family court initially accepted the existence of such a custom, the High Court ruled this finding erroneous, noting that the woman failed to provide credible evidence such as historical records, community decisions or judicial recognition to prove long-standing customary practice.

The only document she produced was a photocopied divorce deed, which the court said amounted to nothing more than a private settlement between the parties. 

Therefore, the Court rejected the appeal and upheld the family court order declaring the second marriage as void. 

Advocates SC Singhal, Parth Mahajan, Garvita Bansal and Ritvik Madan appeared for the appellant woman. 

The respondent husband was represented by advocates Mrinal Singh and Priya Rani Jha. 

[Read Judgment]