Before coming into force of a particular law for conducting the procedure of divorcing or leaving one’s spouse for a lifetime, such procedure was governed by following the old customs and usages that were recognized among a particular community or a class of people. Such methods have been given due importance and practiced with due diligence by generations of those times. There prevailed and existed the concept of Customary Divorce which was validated if agreed by both the spouses and also falling within the reasonable standards. But this practice continues till date and can be obtained by Panchayats, Caste Tribunals, private act of parties like an agreement or bill, Tyag Patra or Furkatnama as laid in the case of Gurdit v. Angeuj wherein customary divorce among the Hindu Jat of Jullandhar District was recognized.
Divorce has been a practice since time immemorial amongst the people belonging to human race. The concept of believing that a couple might become incompetent with each other after a period of time has gained much momentum owing to the independence every individual aims to have in their life and also opposing unnecessary interference in each other’s life. Hence Divorce rates in India are undergoing a paradigm drift. However, considerable sections of the society look down upon the idea of dissolving a marriage till date. But the introduction of the concept of divorce had to be brought into limelight because practicing polygamy without getting divorced has faced tremendous hardships and criticism. Section 13 of the Hindu Marriage Act 1955 (herein referred to as ‘the Act’) has recognized divorce as a relief from unsuccessful marriages.
Customary Divorce is a recognized method of separation without involving the court if such a custom is recognized by marriage laws. The burden of proof is on the party who is challenging such a dissolution that such a customary divorce is valid in that particular community or caste. Section 29(2) of the Act has laid down a clear emphasis on this concept and legally recognized it in a legislation. This section states that any custom conferred by any special enactment can be obtained to dissolve a hindu marriage irrespective of fact whether it is before or after 1955.
The objective of this article
INVERSE RELATIONSHIP BETWEEN CUSTOMS AND DIVORCE
Before commencing with the depth of this topic, it is invariably essential to note the relationship of a custom enabling the gatherings to the union with breaking up their marriage and the holy coherent nature of a marriage solemnized under the Act. As clearly notified by the Indian laws in force, a lawful custom is given weightage and by the court while arbitrating the perceived legitimate nature of a separation. Therefore it is impossible to challenge a custom which is acknowledged with time and intrigued the culture prevailing in the country.
The incorporation of Section 29(2) has realized the importance of a custom in relation to the applicability of the Act even without fulfilling and proving the conditions precedent for declaring a marriage invalid as laid down in Sections 10 to 13 of the Act. This has thus given rise to a different concept altogther where if a marriage is not being able to dissolve as per the sections given in Act, they can still be dissolved if the party relying on a custom is successfully able to prove and plead such ground in the court of law. Hence this shows that a valid customary law of divorce will prevail over the enacted and legally recognized Act thus showing an inverse relationship with the provisions of the Act, which restricts the right of spouses to get divorce on limited grounds only.
A noteworthy fact in this regard is that customary law of divorce can be relied upon only if satisfaction of certain well accepted principles take place as enumerated by the courts from time to time. The characteristics of a valid and binding custom or usage empowering the parties to obtain divorce are such as immemorial antiquity, reasonable, certain, continuous, ancient, invariable etc. However, it should be remembered that proving a particular custom has to take place by direct or indirect evidence, the breach of any such custom must completely eradicate it for all time, proved by calling any witness i.e. it cannot be extended by any reason of logic.
In a case of Uzagar Singh v. Mst. Jeo an ordinary rule was laid down that a custom whether, general or otherwise, has to be proved under Section 57 of the Evidence Act. However, nothing need to be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under Section 57(1) of the Evidence Act.
TYPES OF CUSTOMARY DIVORCE
- By Mutual Consent
Such a custom is mostly prevelant among certain castes in Bombay, Madras, Mysore and Kerela. In Madhya Pradesh this is prevelant among the Patwas of that State. In Uttar Pradesh this is valid among the Barai Chaurasiyas. The main criticism of the consent theory is that it will bring about chaos and will lead to hasty divorce.
- Unilateral Divorce
According to a custom prevailing in Manipur (Khaniaba), it has been stated that a husband can dissolve the marriage without any reason or at his pleasure.
Among the Rajpur Gujaratis in Khandesh and also in the Pakhali community marriage is dissolved if the husband abandons or deserts the wife.
Among the Vaishyas of Gorakhpur in Uttar Pradesh a husband may abandon or desert his wife, and dissolution takes place even without reference to the caste tribunal.
- Divorce by Deeds
This is prevalent amongst certain castes in South India, Himachal Pradesh and the Jat community.
IMPORTANT CASE LAWS
In Penabai v. Channoo Lai the question as to the jurisdiction of panchayats and caste tribunals is exercised and how will the courts interfere with such jurisdiction. The facts of the case illustrate that the marriage of parties was dissolved by the panchayat on the basis of mutual consent of parties. A suit was filed in the court by the wife on the ground that the marriage still existed on the condition that when she gave her consent in front of the panchayat she was only 14 years old and not capable of giving free consent. However, this was rejected by the court on the ground that the wife had a sufficient understanding while giving her consent and also that such a customary divorce was valid.
In Pakhali Jina Magan v. Bai Jethi it was held that customary divorce with mutual consent of husband and wife existed among the Hindus of Pakhali caste of Ahmedabad was not repugnant to Hindu Law. When it was contended that the institution of divorce was itself opposed to the concept of Hindu Law but it is not repugnant to its principles and if there is a well established custom in its support, it may override the general provisions of that law.
In Veerappa Chettiar v. Michael it was held that any custom which is not in derogation with the Hindu Law and is also complying with the conditions laid down in Hindu Law, is considered to be a valid customary law of divorce.
In Shakuntalabai v. VLV Kulkarni the Supreme Court held that a custom must be proved and the burden of proof is on the person who asserts that such a custom is prevailing. Extension of the validity of a custom based on a logical process is invalid.
It is therefore concluded in the light of the above topic that codification of Hindu Customary Laws is by and large a positive development which perceives a state of acknowledgment and justification. The traditional law was less open to separation of spouses which led to the wives being taken for granted to a particular extent. But this law has socially acknowledged the status married females. A new era has been established of conjugal fairness in the light of justice, equity and good conscience. A separate provision has been codified for carrying out such a divorce by also explicitly laying down all the grounds of divorce. This has ensured Gender Justice up to a larger extent.
 1968 SC 142
 AIR 1959 SC 104
 1963 MP 57 (6) Raj 95
 ILR 1941 Bom 535
 AIR 1963 SC 933
 AIR 1989 SC 1359
Author: Shubhi Dhiman,
School of Law UPES Dehradun; 3rd year