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'S. 29, HMA Saves Rights Recognised By Custom': Madras HC Upholds Defence Of Customary Divorce As Valid In Departmental Proceedings For Bigamy [Read Order]

Mehal Jain
18 Sep 2020 7:56 AM GMT
S. 29, HMA Saves Rights Recognised By Custom: Madras HC Upholds Defence Of Customary Divorce As Valid In Departmental Proceedings For Bigamy [Read Order]
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"A plea of customary divorce is a valid defence in a departmental proceedings initiated for misconduct of bigamy under Service Rules/Conduct Rules", the Madras High Court has ruled.

The crux of the charge framed against the petitioner before Justice R. M. T. Teekaa was the delinquent's reprehensible conduct in having married one Jeevarathinam, Woman Sub Inspector of Police, when his first wife was living and thereby violating the Rule 23(1)(b) of the Tamil Nadu Subordinate Police Officers' Conduct Rules 1964 and tarnishing the image of the Police Force. While it was admitted by the first wife that on account of misunderstandings between them, they had entered into a mutual consent dissolution of marriage deed in the presence of Village elders and got separated locally as per their custom, the Government Pleader contended that the plea that the first marriage was dissolved by entering into a local customary divorce could not be countenanced because such practice is not legally valid

The Single Judge noted that it is not disputed that as per Hindu Law, divorce was not recognised as a means to put an end to marriage which was always considered to be a sacrament with only exception where it is recognised by custom. After coming into force the Hindu Marriage Act, 1955, they can seek to put an end to their marriage by either obtaining a declaration that the marriage between them was a nullity on the grounds specified in Section 11 or to dissolve the marriage between them on any of the grounds mentioned in Section 13 of the Act. While, Section 29 of the Act saves the rights recognized by custom or conferred by special enactment to obtain the dissolution of marriage, whether solemnized before or after commencement of the Act.

The bench noted that it is well established by long chain of authorities that prevalence of customary divorce in the community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom.

"The core question that is to be decided in this case is that whether the plea of customary divorce is a valid defence in the departmental proceedings initiated for an action of bigamy as defined in Section 3(b) of the Tamil Nadu Police Rules. In other words, Personal Law of the petitioner on the point of dissolution of marriage under customary practice of dissolution of marriage viz-a-viz misconduct of offence of bigamy under the Service Rules governing the police personnels", reflected the bench.

The bench found that the plea raised by the delinquent about the prevalence of customary divorce in their community was accepted by none other than the first wife herself, and it was only after the dissolution of the first marriage, that he had contracted the second marriage.

Accordingly, the bench set aside the impugned order awarding punishment of reduction in rank of the petitioner from the post of Head Constable to Grade I PC for the period of two years

However, the bench clarified that Disciplinary Proceedings can be initiated even if second marriage is contracted with the knowledge of the first wife so also even if the first wife does not prosecute the husband for the same. That is, a complaint given by the third party alleging contract of second marriage, a departmental proceedings can still be maintainable.

Further, the bench stipulated that to substantiate the said plea of customary divorce, a specific plea has to be raised in the statement of defence by the delinquent officer and has to be proved on up to the decree of preponderance of probability and execution of the customary divorce as projected by the delinquent.


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