16 Aug 2021 7:31 AM GMT
Introduction Prior to the codification of personal laws in India, marriages and divorces were entirely based on the rituals and practices which were customary in nature. While marriages was solemnised through the performance of rituals such as Kanyadaan, Panigraha, Saptapadi and such others, divorce was given through practices such as Chhor chutti, Chuttam-chutta,...
Prior to the codification of personal laws in India, marriages and divorces were entirely based on the rituals and practices which were customary in nature. While marriages was solemnised through the performance of rituals such as Kanyadaan, Panigraha, Saptapadi and such others, divorce was given through practices such as Chhor chutti, Chuttam-chutta, Khaniaba, Tyag-Patra, Furkatnama, Char-chitti etc.
The emergence of Anglo-Hindu law during the British Rule created a lot of ambiguity and uncertainty and the need was felt for enacting a uniform set of personal laws governing Hindus to eliminate any discrimination or arbitrariness. As a result, the Hindu Marriage Act, 1955 ("Act") was promulgated to be a uniform law governing the marriages and divorces among Hindus.
While codifying the law, the legislators ensured not to overlook or abolish the contemporaneous customs. This article examines the validity of customary divorces under the Act.
Protection of Custom under the Hindu Marriage Act, 1955
Any rule which is continuously and uniformly observed for a long time, having obtained the force of law in any local area, tribe, community, group or family which is not unreasonable or opposed to public policy and has not been discontinued by the family, is recognised as a custom or usage under the Act.
Section 29(2) specifically protects the rights recognized under customs. This section is pari materia with the Hindu Law principle of "Hindi Matter" which lays down that a custom prevails over the statutory law provided the custom is ancient, continuous and not against public policy.
As a result, divorce can be obtained under section 13 of Act or by following the custom as prevalent for obtaining divorce. A divorce obtained under the prevalent custom is called "Customary Divorce".
The Hon'ble High Court of Andhra Pradesh in the case of Doddi Appa Rao vs. General Manager, Telecom, Rajahmundry, categorically stated that "Hindu Marriage Act provides the ground in which the parties to the marriage can obtain divorce. The grounds are given in Section 13 of the Hindu Marriage Act. The divorce petition can be filed in the civil Court and if the grounds mentioned in the petition are proved that the civil Court can divorce the parties to the marriage. Inspite of making provisions and grounds for dissolution of marriage in Section 13 of the Hindu Marriage Act, still the Hindu Marriage Act recognises the divorce by custom. The said provision is contained in Section 29(2) of the said Act."
As early as 1968 in Gurdit Singh vs. Mst. Angrez Kaur and others and several other cases that following the courts recognised the validity of a customary divorce.
Conflict between Section 4 and Section 29(2) of the Act
While customs, are afforded protection under Sections 3(a) and 29(2) of the Act, the overriding effect brought about by Section 4 of the Act, has caused courts to face questions relating to the conflict interse the sections.
Section 4 of the Act states as under:
"Save as otherwise expressly provided in this Act,— (a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act."
The Hon'ble High Court of Delhi was faced with the question of whether a custom for dissolution of marriage is hit by Section 4 or saved by Section 29(2) of the Act. The Delhi High Court, while upholding the precedence of Section 29(2), held that "The opening words of this Sub-section viz 29(2) "Nothing contained in this Act shall be deemed to affect any right" leave no room for doubt that the provisions of the Act do not nullify that existence of any custom which confers a right on a party to obtain dissolution of a Hindu marriage. Thus, the validity of any customs recognising the right to dissolve a marriage is expressly saved by this sub-section." 
Similarly, the Madras High Court in the year 2000 in the case of P. Mariammal v Padmanabhan when faced with the issue of conflict between Sections 4 & 29(2), once again upheld the saving of customs under Section 29(2) by holding that "The scheme and object of the present Act is not to override any such custom which recognized divorce and effect is given to the same by the saving contained in this sub section vis section 29(2)".
However, in a recent 2021 decision in the case of Nishan Singh v. State of Punjab, the Punjab and Haryana High Court, in complete contradiction to the earlier judgments held that "in view of Section 4 of the Hindu Marriage Act, 1955 all customs and usages ceased to have effect" and consequently refused to accept the 'Panchayati Divorce' as a valid divorce in the eyes of the law.
With due respect the decision of the Punjab and Haryana High Court is incorrect as it fails to take into account that Section 4 of the Act starts with the words "Save as otherwise expressly provided in this Act" and Section 29(2) makes it clear that the saving of customs as provided under the Act is affected by "nothing contained in the Act".
Marriages solemnised under the Act can therefore be dissolved under section 13 or on the basis of the customs prevalent in their communities, castes etc. However, in case of a challenge to the validity of the customary divorce the party claiming the validity of the customary divorce will be required to obtain a decree of declaration that the marriage was validly dissolved. Further, the burden of proof to establish both the existence of customary divorce and its recognition by law is on the party relying on such divorce. Failure to satisfy the same, disentitles the person to the recognition of their customary divorce.
As recently as 2021, the Hon'ble High Court of Calcutta in Smt. Krishnaveni v. Union of India reiterated that:
"For Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom, to obtain the dissolution of a Hindu marriage.
In order to justify an exception to Section 13 within the purview of Section 29(2), the petitioner had to approach a civil court and establish by evidence that the dissolution of the marriage … was recognized by custom"
Another aspect concerning customary divorces is that when a person remarries after obtaining a customary divorce, without obtaining a decree of declaration of marriage, runs the risk of being in violation of Section 17 of the Act. In the event the court refuses to accept the validity of the customary divorce the person can be charged for bigamy under Sections 494 and 495 of the Indian Penal Code. It is therefore advisable that notwithstanding having obtained a customary divorce, a decree of declaration of dissolution of the marriage be obtained before remarrying.
The author, Mr. Duvva Pavan Kumar is an advocate based out of Hyderabad practicing before the High Court and NCLT. He is the founder of The Law Chambers (https://thelawchambers.in/). He was assisted by Nikhita Guduru and Preetham Kunapareddy. Views are personal.
 Section 3, Hindu Marriage Act
 Section 29(2) of the Act reads as: "Nothing contained in this 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 solemnized before or after the commencement of this Act."
 Doddi Appa Rao vs. General Manager, Telecom, Rajahmundry, (2000) 1 CCC 146
 AIR 1968 SC 142
 G. Thimma Reddy v. The Special Tehsildar, the Andhra Pradesh High Court, 1992 SCC OnLine AP 191.
 Balwinder Singh v Gurpal Kaur 1984 SCC OnLine Del 201
 2000 SCC OnLine Mad 521
 2021 SCC OnLine P&H 523
 Swanpnanjali Sandeep Patil v. Sandeep Ananda Patil 2019 SCC OnLine SC 329
 Banumathi v. The Regional Manager WP(MD).6514/2014
 Subramani and Ors v. M. Chandralekha 2005(9) SCC 407; Yamanaji H. Jadhav v. Nirmala 2002(2) SCC 637
 WPA No. 2346 of 2018
Section 17 Hindu Marriage Act: Punishment of bigamy. —Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code (45 of 1860), shall apply accordingly.
Section 494 Indian Penal Code: Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 495 Indian Penal Code: Same offence with concealment of former marriage from person with whom subsequent marriage is contracted. —Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.