Delhi High Court Rejects Woman's Claim Of Panchayati Divorce In Jat Community, Says Custom Must Be Strictly Proved

The Delhi High Court has made it clear that while Section 29 of the Hindu Marriage Act 1955 recognises customary divorce, the burden to prove prevalence of such a custom is heavy.

A division bench of Justices Anil Kshetarpal and Harish Vaidyanathan Shankar observed,

“Customary divorce, if validly proved, is saved by the provision of the HMA. However, to prove custom, the parties are required to lead cogent evidence. It is not sufficient to prove custom of dissolution of marriage by examining a few witnesses. 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.”

The observation was made while dealing with the appeal of a woman whose second marriage was declared void on the grounds that she didn't divorce her first husband.

The Appellant-woman claimed that she belongs to the Jat community, where the custom of Panchayati Divorce prevails for dissolving the marriage.

The Court however, observed that when it 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. It said:

“Custom cannot be extended by analogy and it cannot be established by a priori method…Apart from referring to other instances of grant of Panchayati Divorce to few persons, the Appellant has not produced any evidence, including text, to show that Panchayati Divorce was being granted in the community from a very long time. The Appellant has also not produced any Panchayati decision in this regard.”

In the case at hand, the Appellant had produced a photocopy of the alleged Deed of Divorce, which was only an agreement/mutual settlement between the Appellant and her previous husband.

Though Appellant's father and maternal uncle testified in her favour, the court noted they are interested witnesses. The Deputy Sarpanch of the village did not attend the alleged meeting of the Panchayat wherein the divorce was granted to the Appellant from her previous husband. Another witness produced by the Appellant also admitted that he never attended the alleged meeting of the Panchayat.

Thus, the Court held that the evidence led by the Appellant to prove the prevalence of the custom of dissolving marriages through the Panchayat fell short of the legal requirement to prove the same.

As such, the appeal was dismissed.

Appearance: Mr. SC Singhal, Mr. Parth Mahajan, Ms. Garvita Bansal and Mr. Ritvik Madan, Advocates for Appellant; Mr. Mrinal Singh and Ms. Priya Rani Jha, Advocates for Respondents

Case title: Sushma v. Rattan Deep & Anr.

Citation: 2025 LiveLaw (Del) 1627

Case no.: MAT.APP. (F.C.) 281/2024

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