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.

Read full Judgment here: Click here

Print Page

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.

Print Page

Notes on applicability of custom in Indian law

 Definition of Custom: 

As per S 3 of Hindu Marriage Act, 

1. the expressions “custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;

Custom, in the context of law, refers to a long-established practice or rule of conduct that has gained the force of law within a particular society or community. It is a source of law that complements statutory law. Customs are often unwritten and transmitted orally from generation to generation, but they can also be found in written records, such as ancient texts or court decisions.

Print Page

Supreme Court: No valid Marriage if there is only registered agreement of Marriage

In the agreement of marriage (Ex. P/1), it is only stated that both parties are of same caste and with the permission and consent of both of their fathers, they have entered into this agreement of marriage. This type of marriage is not recognized in law as Section 7 of the Act contemplates that the marriage can be solemnized in accordance with customary rites and ceremonies of either party thereto and where such rites and ceremonies include the Saptpadi, the marriage becomes complete and binding when the seventh step is taken.

The Plaintiff has not pleaded any custom permitting marriage within the prohibited degree nor there is any proof of solemnization of any marriage by customary ceremonies and rites, therefore, the Plaintiff will not be entitled to succeed only on the basis of alleged registration of an agreement of marriage. In the absence of customary ceremonies or the custom permitting marriage between the prohibited degree, the Plaintiff has no legal right to claim the share in the property only on the basis that some of the witnesses produced by her admitted that she married Hanumanthappa.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3050 of 2010

Decided On: 15.11.2019

 Rathnamma  Vs.  Sujathamma 

Hon'ble Judges/Coram:

L. Nageswara Rao and Hemant Gupta, JJ.

Print Page

Whether court should consider any evidence adduced without pleading?

In response to issue number two, we are concerned here with the custom of adopting married sons in the community of the Appellant. The only evidence, the Appellant has adduced, is his own testimony and a word of a priest who had performed the ceremony. A general custom which the Appellant intends to prove requires greater proof than the one Appellant adduced before the court. Moreover, there is no dispute with regard to the fact that the Appellant did not plead in his written statement about existence of any custom as such. Parties to a suit are always governed by their pleadings. Any amount of evidence or proof adduced without there being proper pleading is of no consequence and will not come to the rescue of the parties.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6378 of 2013

Decided On: 22.11.2017

 Ratanlal  Vs.  Sundarabai Govardhandas Samsuka 

Print Page

Precaution to be taken by court while upholding claim of adoption of child

 At this juncture it would be necessary to observe the law laid down by this Court in numerous cases that the burden of proving adoption is a heavy one and if there is no documentary evidence in support of adoption, the Court should be very cautious in relying upon oral evidence. This Court held so in Kishori Lal v. Mst. Chaltibai MANU/SC/0145/1958 : AIR 1959 SC 504, We can do no better than to quote the relevant passage from the above judgment which reads as under:

As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance.

20. In Rahasa Pandiani (dead) by L.Rs. and Ors. v. Gokulananda Panda and Ors., MANU/SC/0418/1987 : AIR 1987 SC 962, aforesaid aspect was observed as under:

When the Plaintiff relies on oral evidence in support of the claim that he was adopted by the adoptive father in accordance with the Hindu rites, and it is not supported by any registered document to establish that such an adoption had really and as a matter of fact taken place, the Court has to act with a great deal of caution and circumspection. Be it realized that setting up a spurious adoption is not less frequent than concocting a spurious will, and equally, if not more difficult to unmask. And the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is not supported by a registered document or any other evidence of a clinching nature if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. Such is the position as an adoption would divert the normal and natural course of succession. Experience of life shows that just as there have been spurious claims about execution of a will, there have been spurious claims about adoption having taken place. And the Court has therefore to be aware of the risk involved in upholding the claim of adoption if there are circumstances which arouse the, suspicion of the Court and the conscience of the Court is not satisfied that the evidence preferred to support such an adoption is beyond reproach.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6378 of 2013

Decided On: 22.11.2017

 Ratanlal  Vs.  Sundarabai Govardhandas Samsuka 

Hon'ble Judges/Coram:

N.V. Ramana and Amitava Roy, JJ.

Citation: (2018) 11 SCC 119

Print Page

Whether customary divorce between husband and wife is binding on third party?

 From the evidence available on record from the side of the wife, it is clear that the said is not acceptable evidence with regard to the customary divorce. A custom cannot be created by an agreement between the a parties as found in this case as "Farkatnama" so as to bind on others.

Clause (a) of Section 3 of the Hindu Marriage Act reads as under:

"(a) the expressions "Custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:

Provided that the rule is certain and not unreasonable or opposed to public policy; and Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family."

Thus the custom must have been observed for a long time and must be ancient. In pages 49 and 50 of the Mayne's Hindu Law & Usage, it is observed that,

"The beginnings of law were in Customs. Law and usage act, and react upon each other. A brief in the propriety, or the imperative nature of a particular course of conduct, produces a uniformity of behaviour in following it; and an uniformity of behaviour in following a particular course of conduct produces a belief that it is imperative, or proper, to do so. When from either cause, or from both causes, a uniform and persistent usage has moulded the life, and regulated the dealings, of a particular class of community, it becomes a custom, which is a part of their personal law."

16. In the present case, the wife has not led any evidence to show existence of customary divorce preceding the Act. The oral and documentary evidence do not establish that there was customary divorce prevailing in the community to which the party belongs. The evidence of Rajendra shows that he knows that for obtaining divorce one has to approach to the Court. The another witness is sister of the wife. She is totally silent as to on what basis she is deposing that there is a custom in their community to obtain the customary divorce. In the absence of such a positive evidence, merely because she is deposing in favour of the wife is hardly of any use to support the case of the wife. Therefore, it is clear that the evidence adduced on record by the side of the wife cannot take place of custom.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Family Court Appeal No. 90/2015

Decided On: 09.03.2017

 Shalini Vs. Dhanraj

Hon'ble Judges/Coram:

V.A. Naik and V.M. Deshpande, JJ.

Citation: 2017(5) MHLJ 199

Print Page

Whether it is mandatory to prove custom by clear and unambiguous evidence?

In another case in Udaya Swain. v. Satya Swainani reported in MANU/OR/0197/1970 : 1970 The Cuttack Law Times, 1330, the learned single Judge of the Orissa High Court found as under:

"The question to be examined, therefore, is as to whether the defendant has been able to establish the custom alleged by him. This custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. It is essential that it should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that Courts can be assured of its existence, and of the fact that it possesses the conditions requisite of recognition.

8. As was indicated in a very old decision of the Madras High Court in Gopalayyan v. Raghunatiayyan and continuity of the usage and the conviction of those following it that they were acting in accordance with law, and this conviction must be inferred from the evidence. It was further stated that the evidence of acts of the kind, acquiescence in those acts, their publicity, decisions of courts, or even of panchayats upholding such acts, the statements of experienced and competent persons on their belief that such acts were legal and valid will all be admissible but it is obvious that, although admissible evidence of this latter kind will be of little weight unsupported by actual evidence of usage asserted. The rule laid down by the Board in the case of Ramalakshmi Ammal v. Sivanatha Perumal Sathuravar, has been quoted with approval on several occasions by their Lordships of the Judicial committee and runs to the following effect:

"It is of the essence of special usages, modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the condition of antiquity and certainty on which alone their legal title to recognition depends."

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Family Court Appeal No. 90/2015

Decided On: 09.03.2017

 Shalini Vs. Dhanraj

Hon'ble Judges/Coram:

V.A. Naik and V.M. Deshpande, JJ.

Citation: 2017(5) MHLJ 199

Print Page

Whether widow can be denied compensation on ground that she is also wife of other brother of deceased?

Learned counsel for the appellant seriously
argued and contested the award on the ground that the
claim petition, in so far it relates to claimant No.1, was
not maintainable because as per law she cannot be the
wife of two brothers at the same time. The said
question was raised before the Tribunal and the
Tribunal, after making discussion held that a custom is
prevailing in Kinnaur District known as “kinnauri
custom” which provides that a woman can marry two
brothers or more at the same time. The claimants
have also placed on record copy of Wazib-ul-Arz,
which does contain the customs and that stands
proved as Ext. PF. While going through the said
document, one comes to an inescapable conclusion

that the said custom is prevailing in Kinnaur, but it is to
be pleaded and proved. It is apt to reproduce relevant
portion of Wazib-ul-Arz Ext. PF, in English version,
herein.
“(G) In this District, for solemnizing marriage,
inheritance, and taking in adoption etc. there are its
own rules and customs which are based on polygamy
and joint marriage. Therefore, in the event of polygamy,
if two or more brothers are having one wife in that
event, the offspring shall be deemed to be of the
husband who will die last………….”
28. Having said so, the Tribunal has rightly
held that the claim petition was maintainable on behalf
of the claimants. It is worthwhile to record herein that
the claimants are the dependents as averred in the
claim petition. No other relatives or legal
representatives related directly or remotely, have
questioned the filing of the claim petition by the
claimant and have not questioned her status. Thus, the
insurer has no right to question the same.
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
FAO (MVA) No. 362 of 2011.

 Dated: 12th August, 2016.
Oriental Insurance Co. Ltd.  V Smt. Sartabi and others 
Coram:
 Mr. Justice Mansoor Ahmad Mir, Chief Justice.

Citation: 2017(2) ALL MR (JOURNAL) 30

Print Page

How to prove customary divorce between husband and wife?

 This Court also will simultaneously deal with the issue

whether there was any actual and legal dissolution of the marriage of the
plaintiff no.1 with her first husband Waman Chavan. Unless the plaintiffs
would have pleaded and proved the divorce of plaintiff no.1 with her
husband Waman Chavan before contracting the marriage with Namdeo
Jadhav and unless it was proved that the defendant no.1 also had taken
divorce from Namdeo Jadhav according to the recognized custom in

Maratha community privately, whether the presumption could be drawn
about the valid marriage between the plaintiff no.1 with Namdeo Jadhav.
 Before this court deals with this issue in the later part of the
judgment, it is necessary to summarize the law laid down by the Supreme
Court in case of Yamanaji H.Jadhav vs. Nirmala (supra). It has been held
that as per the Hindu law administered by Courts in India, divorce was
not recognized as a means to put an end to marriage, which was always
considered to be a sacrament, with only exception where it is recognized
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. It
is held that 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 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. Supreme Court has held that 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.
Supreme Court has held that even if the plaintiff might not have
questioned the validity of the customary divorce, the Court ought to have
appreciated the consequences of their 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 recognizable by a Court
unless specifically permitted by law.
A perusal of the evidence of all the witnesses examined by
the plaintiffs clearly indicates that none of the witness examined by the
plaintiffs could prove that in the Maratha community, divorce was
permissible and could be obtained by execution of deed of divorce in
presence of panchas or other witnesses. The witnesses admitted in the
cross examination that they had not attended any other alleged customary
divorce in the Maratha community. Except bare words in the plaint that
such divorce was permissible by executing a deed of divorce before
panchas in the plaint, the plaint was totally vague. There was no specific
evidence led by the witnesses examined by the plaintiffs on the issue of
alleged customary divorce in the Maratha community by executing deed
of divorce before panchas and such alleged customary divorce was not
proved at all.
 The learned trial judge in my view has rightly rendered a
finding that the alleged customary divorce by execution of deed of

divorce in the presence of panchas was not proved by the plaintiffs.

In so far as the substantial question of law no.(vii) is
concerned, in my view, the plaintiffs have failed to prove the customary

divorce. The alleged divorce deed Exhibit 79 was not sufficient to prove
the dissolution of marriage of plaintiff no.1 and Waman Chavan in
absence of proof of any custom or customary divorce in the Maratha
Community by execution of the document in presence of Panchas. The

said question of law no.(vii) is accordingly answered in negative.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.108 OF 1993
Kashibai Namdeo Jadhav 
Versus
 Yamunabai w/o Namdeo Jadhav 
 CORAM : R.D. DHANUKA, J.
  PRONOUNCED ON :   25th February 2016
Citation:AIR 2016 (NOC)387 BOM

Print Page

Whether defendant can prove customary marriage relying on evidence adduced by plaintiff?

Now when the defendant while appearing as a witness in her deposition, which deposition has remained unshattered during the ordeal of her cross-examination, has deposed that in tandem with the ingredients of the customary marriage as deposed by PW-1 in his deposition comprised in his cross-examination her marriage with deceased Kanwar Singh was solemnized in consonance with or in conformity with the observances and rituals of the custom prevailing in the area where both were residing. Further more, when the witnesses of the defendant, namely, DW-5 Prem Dutt and DW-7 Mohan Singh, have also deposed in corroboration to the deposition of DW-1, Tara Devi of her marriage having been solemnized with deceased Kanwar Singh in conformity with the custom prevalent in the area, where both were residing. Consequently, it has to be aptly concluded that the marriage inter se the deceased Kanwar Singh and defendant/respondent was solemnized in consonance with the custom prevailing in the locality or the area where both the defendant/respondent and deceased Kanwar Singh were residing. Now the effect of the aforesaid discussion, more particularly of PW-1 in his cross-examination conveying acquiescence and admission besides, communicating the elements, traits and characteristics which inhered in the custom in consonance whereof the marriage of deceased Kanwar Singh was performed with the pre-deceased wife of the latter in consonance with and in conformity whereof also the marriage of deceased Kanwar Singh was performed with the defendant/respondent herein relieves the rigour of enjoining the defendant to plead the elements and traits of the custom in consonance or in conformity whereof her marriage with deceased Kanwar Singh was solemnized. It also, hence, when loudly communicated in the deposition of PW-1, hence, estops the counsel for the plaintiff to contend that such, traits and elements or observances or rituals are not inhering in the custom inconsonance whereof the marriage of the defendant/respondent herein was solemnized with the deceased. Obviously, then the aforesaid traits and characteristics are to be concluded to be constituting the tenets and canons underlying the custom, dehors the absence of adduction by the defendant of the wazib-ul-arz spelling out the existence of customary marriage in the area where both were residing. Preponderantly, when the said elements, characteristics and traits of the custom exist in the cross-examination of PW-1, then the necessity of pleading of its traits and characteristics also ought not to baulk, estop or stand in the way of reading evidence as adduced by the plaintiff as also evidence in tandem thereto adduced by the defendant, in proof of the ingredients of the custom, even if the said ingredients have remained un-pleaded in the written statement.
13. Reinforcingly, the aforesaid discussion underlines the factum of admission qua the characteristics and traits of the custom deposed by the plaintiff's witness constituting admission as well as estopping the counsel for the plaintiff from forbidding or interdicting this Court from reading the evidence led by both the plaintiff and the defendant in proof of the custom or observance of rituals for sanctifying the marriage performed in conformity thereof inter se the defendant/respondent with deceased Kanwar Singh besides, it operates as an exception to the rule that evidence when not pleaded is discardable or excludable.

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.263 of 2003.
Decided on: 18th March, 2015.

Ms kavita Vs Smt. Tara Devi


Coram
 Mr.Justice Sureshwar Thakur, Judge.

Print Page

Whether custom is required to be proved strictly?

A custom is a long drawn, ancient, uniform, definite
continuous and compulsory usage or practice which has been
accepted followed and recognised by the members of
community or religion interested in it. The custom has the
effect of modifying the general personal law. But it does not
override the statutory law unless the custom is expressly
saved by it. No custom is valid if it is illegal, immoral,
unreasonable or opposed to the public policy. The custom
being in derogation of the general law, is required to be
construed strictly. The party relying upon the custom is
obliged to establish it by way of clear and unambiguous

evidence. The evidence adduced on behalf of the party
concerned, must prove the alleged custom and the proof must
not be unsatisfactory or conflicting. A custom cannot be
extended by analogy or logical process and it also cannot be
established by a priori method. The decision of the Apex Court
in the case of Laximibai v. Bhagwantbuva [(2013) 4 SCC 97]
throws light on the aforesaid proposition. A claim for
customary or traditional right in rem to perform the religious
rites and rituals to the exclusion of any interference by others,
as has been claimed in the present suit, carries with it a heavy
burden of proof. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 937 OF 2007
Yeshwant Balwant Badave
VERSUS.
 Shri. Yogi Rajendra Shivacharya Guru


Coram : Ravi K. Deshpande, J.

Date of pronouncement of judgment: July 17, 2014.
Citation;2015(2) MHLJ291

Print Page