Customary Divorce Under Section 29 HMA Requires Cogent Proof : Delhi High Court Dismisses Matrimonial Appeal Challenging Decree Of Nullity For Bigamous Marriage
Isabella Mariam
The High Court of Delhi Division Bench of Justice Anil Kshetrapal and Justice Harish Vaidyanathan Shankar dismissed the appeal challenging a family court decree that had declared a second marriage void for being in violation of the statutory bar against marrying during the subsistence of a prior marriage. The case concerned an allegation that the appellant’s previous marriage had been dissolved through a customary panchayati divorce, which she claimed validated her subsequent matrimonial alliance. The Court held that the claimed custom was not proved and that no valid customary dissolution of the earlier marriage was established. Consequently, it affirmed that the second marriage was null and void and refused to interfere with the decree.
The matter arose from an appeal filed by the appellant challenging the judgment and decree dated 07.06.2024 of the Family Court, which had declared her marriage with the first respondent void under Section 11 read with Section 5(1) of the Hindu Marriage Act, 1955. The case involved two central questions—whether a customary panchayati divorce existed among the concerned community and whether the appellant had in fact obtained such customary divorce prior to entering the subsequent marriage.
The appellant was previously married and claimed that her earlier marriage had been dissolved on 23.05.2009 through a customary divorce before the Panchayat. The first respondent also had a previous marriage, dissolved by a competent court on 25.05.2009. The parties thereafter entered a matrimonial alliance on 16.05.2010 and had a son born on 15.03.2011.
Disputes later arose, leading the first respondent to file a petition in 2013 upon allegedly discovering that the appellant had not been legally divorced from her previous spouse. The appellant contended that the customary divorce was known to the respondent’s family and that the marriage was valid. She further alleged cruelty and dowry harassment.
During trial, the Family Court framed issues concerning the existence of a customary divorce and whether the appellant had actually obtained such divorce. The appellant produced a photocopy of an alleged deed of divorce marked as ‘X’, described as a mutual settlement with her previous husband. However, she did not examine the scribe or any of the witnesses named in the document. Additional witnesses, including her relatives and two persons from the community, were examined regarding customary practices.
The statutory provisions considered included Sections 4, 5, 11, and 29 of the Hindu Marriage Act. The Family Court held that while a custom of divorce existed, the appellant failed to prove that she personally obtained a valid panchayati divorce. As a result, her marriage with the respondent was found to contravene Section 5(i).
The Court observed that Section 4 of the Hindu Marriage Act provides that “any text rule or interpretation of Hindu law or any custom or usage as part of that law… shall cease to have effect with respect to any matter for which provision is made in this Act.” However, it noted that Section 29 saves the right to obtain dissolution of marriage through a valid custom.
Discussing the legal requirements for establishing a custom, the Court recorded the Supreme Court’s definition in Bhimashya v. Janabi, noting that “A custom to be valid must have four essential attributes. First, it must be immemorial; secondly, it must be reasonable; thirdly, it must have continued without interruption… and fourthly, it must be certain…” It also cited Gokal Chand v. Parvin Kumari, which stated that “A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law.”
The Court further stated that “to prove custom, the parties are required to lead cogent evidence. It is not sufficient to prove custom… by examining few witnesses.” It relied on precedents requiring judgments or established texts demonstrating long-standing usage.
Upon examining the evidence, the Court recorded that RW-2 and RW-3 were interested witnesses, while RW-4 and RW-5 had not attended any Panchayat meeting concerning the alleged divorce. The Court noted that the appellant had “not produced any evidence, including text, to show that Panchayati Divorce was being granted in the community from a very long time.”
Regarding the deed marked ‘X’, the Court observed that it was “only an agreement/mutual settlement… attested by three witnesses,” and that neither the scribe nor the witnesses were examined. It stated that “there is no reference to any Panchayat or meeting of the respectables of the area.”
The Court recorded that the Family Court’s finding recognising the existence of customary divorce was “erroneous and liable to be set aside,” even though no cross-objection had been filed. It further held that the agreement dated 25.09.2013 “does not fulfil the requirement of the customary divorce as alleged.”
On the issue of annulment, the Court stated: “If any marriage is solemnized… in contravention of any one of the conditions specified in clauses (i), (iv) and (v) of section 5… such marriage is null and void and not voidable.” The Court noted that the appellant failed to prove dissolution of her earlier marriage, making the subsequent marriage invalid.
The Court held that it found “no reason to interfere with the Impugned Judgment passed by the Family Court. The present Appeal, along with the pending application, is dismissed.”
Advocates Representing the Parties:
For the Appellant: Mr. S.C. Singhal, Mr. Parth Mahajan, Ms. Garvita Bansal and Mr. Ritvik Madan, Advocates.
For the Respondents: Mr. Mrinal Singh and Ms. Priya Rani Jha, Advocates.
Case Title: Smt. Sushma v. Rattan Deep & Anr.
Neutral Citation: 2025: DHC:10580-DB
Case Number: MAT.APP. (F.C.) 281/2024
Bench: Justice Anil Kshetrapal and Justice Harish Vaidyanathan Shankar
