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.

For Starts-up.

Rana Ayyub and the Streisand Effect!

Gujarat Files: Anatomy of A Cover Up, Rana Ayyub self-published this book as according to her, a well known publisher refused  to publish the book. The subject matter of the book i.e. 2002 Riots and Fake Encounters of Gujarat, itself is enough to scare the publishers. She also claimed that she had in fact stinged none other than, Mr. Narendra Modi, and, She can provide the sting to the investigating authorities if requested.

She also claimed that between 2012 - 2014, she had approached many publishers but to hear a firm rejection.

She and other FoE crusaders are upset with the 'Bhakt's critical ratings' of her book. The abusive language used by the Bhakts on Amazon and Flipkart's review section raises some valid concern. They say if you don't like the book publish a book which provides counter narrative. As the book contains under cover operation it is very hard for a layman to judge its authenticity. Nonetheless, abuses seldom help anybody. Dialog would.

 Lately, when any writer faces a problem to publish his book which has some controversial subject matter involving Politicians or Business czars, Streisand effect comes in to play. The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet.

Rana Ayyub also got the Streisand Effect handy. Due to this negative publicity, the book tops the chart and is a top seller on both the sites. Many blogs and leading E - journals have published excerpts of the book. It also generates curiosity in public.

Moral of the story: Don't pulp the books, churn your mind and counter a book with a book!

May I have your liberty to write Your Lordships?

 

My lord, i have enough reason to believe that your Lordships has long forgotten the role of the judiciary in democratic set up. I don't want rather not in a position to give sermon regarding what you can do. I have identified some areas which your Lordship shall not use their proprietary.

 

1.) My Lords you are not a professor of English. Any Lawyer while assisting the Court is more concerned about law than language. In any case it is not the duty of the court to take viva voce of the lawyers. The Courts of law is not a class room of any college where students enrol to make themselves Shakespeare. The court room is different from a lecture room.

 

2.) My lord, You are not our Moral Science teacher. Don't preach us for moralities and all. The law is devoid of morals. The law is an objective subject. We have already passed with flying colours the subject of Moral Science while we were in our secondary school.

 

3.) My lord, sometimes i feel shy rather conscious while assisting your good office. The reason is your constant advice regarding our physical appearance.

An- tie SOCIAL!!!

Isn't it an Irony that we call it a Social Media by which we are becoming more and more unsocial? What is Social? According to Dictionaries Social means, "relating to or involving activities in which people spend time talking to each other or doing enjoyable things with each other."  We forgot how to talk while we are physically and in real time together. Around the globe scientists are giving a signal that Virtual world will kill the real world. We will lose our voice. We need microphone, speaker and screen for conversation. We feel shy and even irritated if we have to make a face to face conversation. We will forget gestures at all.

Nonverbal communication will also become dead as we prefer screen over skin. Don't you feel that Smart phone has made us all socially dumb! A child doesn't know and has not experienced the smile on his father's face when he gets back from his office and sees his child waiting for him the father most probably, is on Smartphone. The opposite situation may also arise when the father gets back home his child is playing on Smartphone. Even when the family is having dinner or lunch they all just mechanically, have their food without even having a glance on their food.  

Slowly and Steadily more and more people become aware about the value of real conversation. Let's hope we become ‘More-Smart’ by dumping the use of Smartphone while we are accompanied by our loved once. 


(Picture Source: Google Images)

Haajir Ho - 2.

When I joined the court in 2010 my senior told me that whenever you are in the court room always have your eyes on the Judge/bench so that you can understand how he is reacting and behaving in a given case/situation. It will help you when you get a chance to argue before him. OBSERVE is the message!

Accordingly, I started observing the Judges which has helped me immensely to ascertain What to argue, when to argue, what not to argue, which line of argument particular judge hates etcetera. The Court Craftsmanship or the Art of Advocacy is effective communication to the canvas of the mind through the artwork of four brushes, effective speaking, effective writing, effective reading and effective listening. Nowadays, Smartphone captivates your attention from the arguments and you fail to listen what the Opponent is canvassing.

In 2011 I went abroad for my higher studies. I came back and what I have seen in the courtroom gave me a shock and surprise. In the Court Room where a division bench nested only the Senior Judge and a lawyer were physically and mentally present in that court room all other including respondent lawyers, Bench Clerk, Legal Assistant, Stenographer, Government Pleader all were busy on Screen. They are not at all interested in court room proceedings. The respondent lawyer even didn’t respond to the Judge at the first instance when the judge raised a query to him it was a petitioner lawyer who drew his attention towards the judge!

 

Haajir Ho - 1.

In the Mid August the Air condition system of the High Court of Gujarat failed hence, we were living a nightmare with perspired Lawyer's UNIFORM i.e. Black suit, Robe and Collar band! No, ventilation point for our body to get in or get out our body heat!!! No, we the lawyers are not the only VICTIMS of this Natural Surroundings! Honorable Judges were living the worst nightmare. Though, the registry did arrange pedestal fans for the court rooms but, they are just mute spectator of our agony. Sometimes the total number of these fans outnumbers the total strength of advocates in a particular court room! 

As the temperament running high of the lawyers so as the JUDGES'. It was the Court where Service Matters and allied matters listed for adjudication. A Party-in -Person appeared for his case and started canvassing rather, narrating the troubles in life he is facing as he believes that all the solution for his troubles lie at the doorstep of High Court. The Judge who takes/ hears the matters is thorough Gentleman and Man of knowledge. She became to make the party in person aware, a Law Professor. She slowly and firmly tried to explain the Jurisdiction under Article 226. The Party in Person ain't impress with the lecturing skill of the Judge and he did not allow the Judge cum Professor to speak by raising the voice of his arguments. Everything has its own limit so as the Judge's patient. It is one of that situation where the passion of the litigant won at the cost of the patient of the Judge. Suddenly, he attains the highest pitch of his voice and pose a question to the Judge "If I won’t get justice here from the High Court then where should I go?" the Judge readily answered the question by saying, 'Go to UP (Uttar Pardesh)!' The Judge was emotionally carried away! In fact, the petitioner is hailing from UP which makes those words more cruel. 

 -----------------------------------

We are back to normalcy. The Air Conditioned Court rooms make our lives more peaceful. we again started surfing the net and try to make ourselves more updated than we are updated few seconds ago. In this exercise of keeping ourselves updated I found out an article "Won't hear you in person because you might turn emotional "- CJI. Being a lawyer I was quite happy as nowadays there is an influx of Part-in-Person with whom we the lawyer rub shoulders. Professionally and economically its not an ideal situation for any lawyer.

Avoiding the above mentioned thoughts, a law student in me somehow managed to desert his slumber and presented me a set of questions, why does CJI believes that only Party in person can turn emotional? does to turn emotional a crime? Can Judge and Lawyer turn emotional while addressing the Court? Is there any law/convention which expressly prohibits the Party in Person to turn emotional while arguing? Does it not amount to violation of principle of Natural Justice? Does it not tantamount to violation of fundamental rights of Party in Person?