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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Whether Hindu Marriage Can Be Dissolved Through Customary Divorce If Existence Of Such A Customary Right Is not Established ?

It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong to. As per the Hindu law administered by courts in India 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. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since the said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the court. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true that in the courts below the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of there not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law…”

(Emphasis supplied) {Para 7}

 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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Is a prenuptial agreement between husband and wife not to have a child after marriage a valid contract?

  Under the Hindu religion, the marriage had assumed the

sacred character of sacrament. The personal thought of marriage

was a prime necessity for that alone could enable a person to

discharge properly his religious and secular obligation. To make it

say it otherwise, the marriage is necessarily a basis of social

organisation and the foundation of important legal rights and

obligation. The importance and imperative character of the

institution of marriage needs no comment and in Hindu Law

marriage is a Sanskar. Therefore, presumed contract as has

been stated by the appellant/husband that the second marriage

was performed on the condition that they would not have a child

from the second marriage cannot be a barrier as a valid sacred

promise, if not performed, will assume the character of cruelty.

Under the Hindu law, marriage is not a contract. Therefore, the

alleged promise as projected by the husband that they would not

have a child from the second marriage cannot be given a priority

over the sacrament or sanskar to have family. The alleged

promise also cannot be pressed into motion against the human

conduct if a lady after the marriage expects to have her own child. The role narrated by husband of contract of not to have child even after marriage is bound to be somnolent. A birth die is cast by nature. To deprive a woman from motherhood as a pre-condition for marriage cannot be given a priority. The type of condition set forth by husband only adds gloomy atmosphere to a married life as against a cheer by a child. Therefore, a demand to have child by wife from husband cannot be constituted a cruelty. {Para 11}

HIGH COURT OF CHHATTISGARH, BILASPUR

First Appeal (M) No. 138 of 2018

 P. Venkat Rao P. Ramarao, Vs Smt. P. Padmavati P. Venkat Rao, 

Coram: 

Hon'ble Justice Shri Goutam Bhaduri

Hon'ble Justice Shri N.K. Chandravanshi

Author:  Goutam Bhaduri, J

Dated: 09.3.2023

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When petition for annulment of marriage by husband is not maintainable?

 The husband has contended and deposed that, he came to know about the fact of first marriage of his wife only when the quarrel broke between him and wife on 02-02-2013. He contends that, thereafter he made investigation and came to know about the other details. The wife says that, she had disclosed everything to the husband at the time of settlement of marriage. The husband obviously denied the suggestion to that effect in his cross, however it is to be noted that he has not examined anybody else to support his contention or even in contemplation of the fact that the wife would lead evidence to prove that, at the time of settlement of marriage such fact was disclosed to the husband. He admits in his cross examination that, his marriage with wife was performed in a temple in the form of "Shiv Vivah". In fact it ought to have been extracted by the concerned Court who was recording the evidence as to what is the meaning of "Shiv Vivah"; may be by asking Court question. But it appears that, the learned First Appellate Court has tried to extract it at the time of submissions of arguments before him and it has been specifically observed that, both the learned advocates representing the respective parties submitted that the mode and ceremony of "Shiv" marriage is marriage like a marriage of "Gandharva" marriage which generally followed in cases of second marriage of either of the spouses. That means, this fact is even admitted by the advocate who was representing the husband before the First Appellate Court. Independently also it is to be noted that, the wife has examined D.W.3 Devidas Arjun Patil and D.W.4 Kishor Laxman Aadhav who were present at the time of marriage. They are not related to the wife but the father of the wife was their friend. Both of them have stated that, information regarding first marriage of wife was given to the husband at the time of marriage. In the cross-examination except denial there is nothing. There was no reason to disbelieve these two persons. Therefore, taking into consideration the said admission given by the husband and the evidence that has been led by the wife in her testimony as well as by examining two witnesses on the point, it will have to be held that the wife had given knowledge about the alleged divorce between her and the first husband to him prior to the marriage. Here it is to be noted that, though the wife has not been able to prove the custom yet from the evidence regarding intimation about the said information to the husband prior to the marriage reveals that, even the husband was under the impression that the said divorce document which has been got executed between wife and first husband, was a correct document and then he did not question the legality of the same. Therefore, the knowledge of the husband regarding first marriage of the wife will have to be attributed to the date of his marriage, and therefore, the petition that has been filed by him for annulment of marriage on 01-03-2013 was beyond the period of limitation.

18. The period of limitation that is prescribed for filing such petition for declaration of divorce is one year and for that purpose the learned First Appellate Court has rightly considered Section 12 and 23 of the Hindu Marriage Act. The evidence on the point of knowledge adduced by the husband is absolutely not acceptable and it cannot prove that for the first time he came to know about the first marriage of wife on 02-02-2013 when the quarrel broke out between them. The learned Trial Court had not considered the said point in proper perspective and thus the petition filed by the husband for getting the marriage annulled is beyond the period of limitation.

Therefore, though the wife had failed to prove the custom and she had living spouse when her marriage with the present petitioner had taken place, yet the petition will have to be dismissed on the ground that it is beyond period of limitation.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 124 of 2017, 

Decided On: 11.09.2019

 Sudarshan Vs.  Pallavi

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: AIR 2020(NOC) 69 Bom

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When court can grant divorce on ground of cruelty?

   The   pleadings   in   the   Hindu   Marriage   Petition   are   not 
specifically denied and there is an evasive reply to the pleadings.   The 
pleadings   in   the   written   statement   are   philosophical.     Some   of   the 
material allegations in the Hindu Marriage Petition are not denied at all. 
Without any specific pleadings of demand of dowry by the respondent in 
the   written   statement,   the   respondent   was   confronted   with   the 
suggestions in regard to the demand of dowry of Rupees Five Lacs in his 
cross­examination.     The   false   and   unsubstantiated   charges   against   the 
respondent in regard to the demand of dowry would amount to cruelty.  It 
has   been   held   by   this   Court   that   serious   unsubstantiated   allegations 
would amount to cruelty.  


IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.

FIRST APPEAL NO. 1253/2008
Smt. Bhawna w/o Vijaykumar Sakhare 
vs
Vijaykumar s/o Tarachand Sakhare 

CORAM   :SMT.VASANTI A. NAIK AND

A.B. CHAUDHARI, JJ.          

DATE    :               
  13TH    AUGUST          
 ,     2012.
Citation; 2012(7) ALL MR 282

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Whether Hindu marriage will be valid even though ritual of "Saptapadi" is not carried out?

Under such circumstances, the provisions of Section 7, namely, the State Amendment inserted in the Statute are applicable and there was a valid marriage between the appellant and Kasturi. Moreover, neither complainant nor the appellant had any case that for a valid marriage among the members of the community to which they belong, this ceremony of "Saptapadi" was an essential one to make it a valid marriage. Section 7 of the Hindu Marriage Act says that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptapadi, i.e. the taking of seven steps by the bridegroom and the bride jointly before the sacred fire, the marriage becomes complete and binding when the seventh step is taken.

"Saptapadi" was held to be an essential ceremony for a valid marriage only in cases where it was admitted by the parties that as per the form of marriage applicable to them that was an essential ceremony. The appellant in the instant case, however, had no such case that "Saptapadi" was an essential ceremony for a valid marriage as per the personal law applicable whereas the provisions contained in Section 7 are applicable to the parties. In any view of the matter, there was a valid marriage on 18.6.1984 between the appellant and the second accused, Kasturi. Therefore, it was proved that the appellant had committed the offence of bigamy as it was done during the subsistence of his earlier marriage held on 6.9.1970.1

Supreme Court of India

S. Nagalingam vs Sivagami on 31 August, 2001

Equivalent citations: AIR 2001 SC 3576, 2001 (2) ALD Cri 634

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