Customary Divorce & Hindu Marriage Act, 1955

Is Customary Divorce through Divorce deed recognised and acceptable as a mode of dissolution of marriage under Hindu Marriage Act, 1955?


STATUTORY PROVISIONS & Judicial Pronouncements: Before adverting to the aforesaid queries, it would be profitable to cite the fundamental provisions of the relevant legislations upon which this query has been given:

          If the marriage is solemnised as per Hindu rituals, provisions of   Hindu Marriage Act, 1955, more particularly Sections 13, 13B & 29, are applicable to opine on the subject.

If both the parties are agreed to dissolve the marriage the only Provision applicable is Section 13B of the Act. But, the Hon’ble Gujarat High Court through various judicial pronouncements held that customary divorce is saved by Section 29 (2) of the Act, and, hence, permissible and having force of law.

In the matter of Sonal Keyurbhai Patel v. Superintendent Regional Passport Office & Anr. 2010 (3) GCD 1771 (Guj.) the Hon’ble Gujarat High Court held that, “…customary divorce can be said to be permissible unless it is objected by either party to the divorce deed or any person who is directly affected by the divorce deed.”

In the case of Twinkle Rameshkumar Dhameliya v. Superintendent, Regional Passport Office, Ahmedabad, 2006 (4) GLR 3443 the Hon’ble Gujarat High Court observed that, “Section 29(2) of the Hindu Marriage Act, 1955 provides that “Nothing contained in the Hindu Marriage Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of Hindu Marriage Act.” Therefore, if the customary divorce is permissible for dissolution of Hindu marriage the same as such is saved even as per the provisions of Hindu Marriage Act.” Further it is observed that, “If the passport officer insists for authenticated divorce deed through the court in all cases of divorce, then in that case, the effect of Section 29(2) if Hindu Marriage Act for saving the customary divorce shall stand nullified.” This makes it very clear that:

·         Customary Divorce is recognised as one of the modes of dissolution of Hindu marriage under the Hindu Marriage Act, 1955.

·         Only in cases where either parties of the deed or any person directly affected by the deed raises any objection regarding the custom prevailing in the community, the prevalence of the customary rights to divorce shall be established by the person propounding such custom.

In the case of Dipika Amrutlal Patel V. Vishwam Pamanand Patel reported in 2011 GLH (1) 457, the Hon’ble Gujarat High Court held that, the Family Court can grant decree in a declaratory suit for the declaration that the customary deed executed between the parties, is valid and legal. Moreover, the Family court can also declare by virtue of the said customary divorce deed that the parties to the deed, is ceased to be husband and wife from the date of the execution of the customary divorce deed.

         

Upon assessment of the above the following emerges:

·         The customary divorce deed executed between the parties can be legally recognised and accepted mode of dissolution of marriage under the Hindu Marriage Act, 1955.

·         As the same is legally recognised no further action is required to be taken for reasserting the dissolution of marriage.

·         As the marriage is not in subsistence the petition under section 13B of the Hindu Marriage Act, 1955, cannot be filed.

·         Parties may file a declaratory suit for issuance of the declaration from the court that the divorce deed executed between the parties, is legal, valid and proper.