Whether the court can quash proceeding under Domestic violence Act if husband takes the plea of customary divorce?

 Even if assuming that the learned Judicial Magistrate is vested with jurisdictional competence to determine the validity of a customary divorce deed, yet no such determination could take place merely on an application moved by the respondent-husband. The respondent is obliged to lay proper foundation in pleadings, impeccable evidence to prove long time custom and then establish that their marriage was validly dissolved by resorting to customary rights. Unless the respondent proves prevalence of the custom in conformity with public policy and consequential enforceability of the divorce deed dated 05.01.2014, there is a statutory presumption of subsisting marriage between the parties. In that case, the complaint under the D.V. Act cannot be quashed at the threshold, on the ground of its nonmaintainability. The High Court thus legally erred in assuming the validity of customary divorce deed 05.01.2014 and then in proceeding to quash the proceedings under the D.V. Act on the premise that the parties are no longer legally wedded husband and wife. Such an inference can be drawn only after the respondent successfully proves the validity and enforceability of customary divorce deed dated 05.01.2014. We reiterate that the onus to prove the customary divorce deed lies on the respondent who is relying upon the same, and on the appellant to prove to the contrary. {Para 12}

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION 

CRIMINAL APPEAL NO.2905 OF 2023

 SANJANA KUMARI Vs VIJAY KUMAR

Coram: SURYA KANT; J., DIPANKAR DATTA; J. 

Dated: September 18, 2023.

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