In an appeal filed before the Delhi High Court to assail a judgment and decree dated 07-06-2024 by the Family Court whereby it was declared that the appellant’s (wife) marriage with respondent 1(husband) was void for being solemnized in contravention of Section 11 read with Section 5(1) of the Hindu Marriage Act, 1955 (HMA), a Division Bench of Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar found no reason to interfere with the impugned judgment and dismissed the appeal.
In the present matter, the wife claimed that her previous marriage had been dissolved by a customary divorce on 23-05-2009 and the husband claimed that his marriage was dissolved by a competent court on 25-05-2009. Both of them entered a matrimonial alliance on 16-05-2010 and thereafter, a son was born to them.
The husband filed a petition under Section 13(1) (ia) of HMA, but later withdrew the same since his wife started cohabiting with him. On 12-10-2012, the wife left her matrimonial home and the husband claimed that the wife was not previously divorced on 25-09-2013.
The wife asserted that she had informed the husband and his family of her previous divorce before they entered the matrimonial alliance and also mentioned that she had divorced her husband as per the custom prevailing in her community. The wife not only alleged cruelty done by the husband but also that he and his family had made demands for dowry.
Upon perusal of the alleged deed of divorce submitted by the wife, the Court found that the same was only an agreement/mutual settlement. However, it was noted that neither the scribe nor any of the witnesses who had signed the deed had been examined.
The Family Court had held that the custom of taking customary divorce had been successfully established and that the wife had failed to produce a valid panchayatnama which is why the alleged divorce from her previous husband could not be established. The marriage was then annulled under Section 11 of the HMA for being in contravention of Section 5(i).
The Court perused Sections 4 and 29 of the HMA and held that a customary divorce, if validly proved, is saved by the provision of HMA. After a perusal of various cases, the Court stated that to prove custom, the parties are expected to prove the prevalence of customary divorce in their community by producing judgments that recognize their custom.
The Court noted that the wife had not produced any evidence to show that panchayati divorce was being granted in the Jat community from a very long time. Thus, it was held that the evidence led by the wife fell short of the legal requirement to prove the same. Further, the Court said that even though this issue was decided in favour of the wife by the Family Court, it was liable to be set aside.
Considering the alleged divorce deed, the Court held that such an agreement did not fulfil the requirement of customary divorce and upheld the findings of the Family Court for this issue. Hence, the Court found no reason to interfere with the impugned judgment and dismissed the appeal.
Appearances:
For Appellants – Mr. SC Singhal, Mr. Parth Mahajan, Ms. Garvita Bansal, Mr. Ritvik Madan
For Respondents – Mr. Mrinal Singh, Ms. Priya Rani Jha
