Gujarat High Court
Manojkumar Ramanbhai Patel vs None on 15 April, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1155/2025 JUDGMENT DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1155 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN
VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================
Approved for Reporting Yes No
Yes -
==========================================
MANOJKUMAR RAMANBHAI PATEL & ANR.
Versus
NONE
==========================================
Appearance:
MR HM PARIKH, SENIOR ADVOCATE with MR SAURABH J. MEHTA(2170)
with MR MJ MEHTA(5797) for the Appellant(s) No. 1,2
MR NANDISH H SHAH(11330) for the Appellant(s) No. 1,2
==========================================
CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 15/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. Present appeal is filed under Section 19 of the Family Courts
Act, 1984 (hereinafter be referred to as “the Act”) and under Sections
3 and 29 of the Hindu Marriage Act, 1955 (hereinafter be referred to
as “the H.M. Act” challenging the impugned judgment and decree
dated 07.04.2025 passed by the learned Principal Senior Civil Judge,
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Family Court, Bardoli (hereinafter be referred to as “the Family
Court”) in Family Suit No. 17 of 2025 whereby the Family Court has
dismissed the suit.
2. Brief facts of the present case, in nutshell, are as under:-
2.1 That the appellant No.1 and appellant No.2 are the husband
and wife and they got married on 26.10.2001 as per all Hindu rites
and rituals in presence of friends and family members and the said
marriage came to be registered on 18.07.2008 before the Office of
Registrar, Marriage Registration, Government of Gujarat.
2.2 A marriage between appellant No.1 and one Ms. Pushpaben
Jagubhai Patel came to be solemnized on 28.01.1999 at Village:
(Ramji Mandir), Bardoli, Taluka: Bardoli, District: Surat following all
rites and rituals of the Hindu religion as well as tradition and customs
of Leuva Patel Samaj and the marriage came to be registered on
29.01.1999 in the office of the Marriage Registrar and since then
appellant No. 1 and Ms. Pushpaben Jagubhai Patel resided together as
husband and wife. It is the case of the appellants that since Ms.
Pushpaben Patel arrived from United States of America for marriage
purpose and after marriage, she returned back to United States and
thereafter, appellant No. 1 and Ms. Pushpaben Patel were living
separately.
2.3 That Ms. Pushpaben Patel promised appellant No.1 to call him
abroad, but due to the reasons best known to her, she was not in a
position to call appellant no. 1 and much time had flown but she
neither returned to India nor tried to call appellant No. 1 to USA, so
that they can lead happy married life. Despite several insistence, Ms.Page 2 of 19
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Pushpaben Patel was not called appellant No. 1 to USA and appellant
No.1 was not ready and willing to wait and therefore, disputes
cropped-up between appellant No. 1 and Ms. Pushpaben Patel and
despite several efforts made by the family members and relatives, the
marriage was broken down and there was no possibility of reunion
Ms. Pushpaben Patel executed a dissolution of marriage in California,
United State of America on 04.08.2000 and sent it for execution to
appellant No. 1.
2.4 The appellant No.2 was initially married to one Mr. Mukeshbhai
Patel as per the rites and ritual prevalent in the Hindu community as
well as the rites and rituals as prevalent in Leuva Patel Samaj on
11.07.1997 and out of the said wedlock one boy child namely Dhruvi,
was born on 28.06.1999 and after passage of time, the dispute
cropped-up between appellant No.2 and Mukeshbhai, due to which
she and Mukeshbhai decided to dissolve and therefore, as per
customs of community, appellant No. 2 and Mukeshbhai executed a
Deed of Divorce on 13.01.2001. Thereafter, on 26.10.2001, the
appellants got married and the said marriage were solemnized on
26.10.2001, the marriage was also registered, and a certificate of
marriage is issued by Government of Gujarat. The appellants are
staying together as husband and wife and is having a boy child born
out of the said wedlock namely Shivam.
2.5 That somewhere in the year 2009, appellant No. 2 applied for
immigration visa of United States of America, and as per F3
immigration category, only principal applicant has to apply for
immigration visa and dependent applicants do not have to apply for
immigration visa and therefore, appellant No. 1 did not apply for
immigration visa at that point of time, however, since appellant No. 1Page 3 of 19
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did not take divorce by way of a divorce petition and availing divorce
decree from the Court of law, the U.S. Consulate raised a query
stating that the appellants were not free to marry, since appellant No.
2 was divorced only by way of divorce deed dated 13.01.2001 and
under Indian law, legal divorce required a divorce issued by an Indian
Court. The United State Consulate also stated that the divorce of
appellant No. 1 came to be finalized vide divorce decree dated
15.04.2023.
2.6 That since Ms.Pushpaben did not come back to India after the
year 1999, appellant No. 1 was constrained to execute a dissolution of
marriage agreement sent by Ms. Pushpaben from California, United
States to end their marriage, so that appellant No.1 can remarry and
settle in life. The customary divorce is prevailing in the community
since ages and since the appellants also belong to same community,
customary divorce is permitted.
2.7 The husband of appellant No. 2 has passed away in the year
2008, and the wife of appellant No. 1 never came back to India from
United States of America and considering the fact that community
permits customary divorce by way of divorce deed, the
Agreement/Deed executed by both the appellants for taking
customary divorce are valid in law.
2.8 That since the U.S. Consulate raised a query, the appellants
were constrained to approach the Court of learned Principal Senior
Civil Judge at Bardoli, Surat by filing a Family Suit seeking declaration
of their marital status as provided under Section 7(A) and Section 7(B)
of the Family Courts Act, 1984 read with Section 3 and 29 of the
Hindu Marriage Act, 1955.
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2.9 After hearing the parties and considering the averments, the
Family Court has framed the following issues.
(1) Whether the plaintiffs prove that the marriage between them
is legal and valid since 26.10.2001?
(2) Whether the plaintiffs prove that marriage between them and
their respective spouses terminated as per the customs
prevailing in the community to which they belong?
(3) Whether the plaintiffs are entitled to the relief of declaration as
prayed for?
(4) What order and decree?
2.10 The Family Court, after considering the evidence available on
record and the submissions made by the parties, dismissed the suit
vide judgment and decree dated 07.04.2025.
3. Being aggrieved by and dissatisfied by the impugned judgment
and decree, the appellants have preferred the present appeal.
4. Heard Mr.H. M. Parikh, learned senior counsel with Mr.Saurabh
Mehta, learned counsel with Mr.M. J. Mehta, learned counsel
appearing for the appellants at length.
5. Mr.Parikh, learned senior counsel has submitted the same facts
which are narrated in the memo of appeal and has also submitted
that appellants – original plaintiffs filed the suit for declaration under
Section 7(a) and 7(b) of the Act r/w. Sections 3 and 29 of the H.M. Act.
He has submitted that appellant No.1 originally married with one
Pushpaben as per the Hindu rites and rituals prevailing in their
community on 28.01.1999 and the marriage was registered on
29.01.1999 and due to some reason, their marriage life was not going
smoothly and there is no possibility of reunion as the first wife
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Pushpaben went to USA and not returned back to India nor the
husband was called by the wife – Pushpaben. He has submitted that
Pushpaben has filed petition before the Competent Court at Califonia,
USA for dissolution of her marriage and the same was dissolved by
the Competent Court in the year 2000. He has submitted that in
2001, appellant No.1 got married with another lady i.e. appellant No.2
herein and earlier appellant No.2 got married with one Mukeshbhai on
11.07.1997, which came to be dissolved as per the Hindu customary
prevailing in the Patel community by executing deed of dissolution of
marriage on 13.01.2001 and thereafter appellant No.2 got married
with appellant No.1 on 26.10.2001. He has submitted that out of the
said wedlock, appellant No.2 delivered a boy child namely Shivam on
19.09.2002 and now at present he is aged about 23 years of age and
since the Consulate General of USA wanted marriage certificate,
therefore, both the appellants have jointly filed the suit for declaration
that no one has objection and, therefore the Family Court has
completely misread the pleadings of the plaint and the relevant
provisions of law, while dismissing the suit.
5.1 Mr.Parikh, learned senior counsel has also submitted that
mutual agreement the appellant No.1 and first wife got dissolution as
per the customary prevailing in the community by executing deed of
dissolution in 1991 and, thereafter, after following due procedure,
appellant No.1 got married with appellant No.2 in 2001 and since then
they are residing as husband and wife. He has submitted that the
marriage between appellant Nos.1 and 2 is known to concerns and no
one has objected the same and, therefore, the reliefs as sought for in
the suit deserve to be granted in favour of the appellants. Mr.Parikh,
learned senior counsel has referred to Section 7(a) and 7(b) of the Act
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and Sections 3 and 29 of the H. M. Act and has submitted that the
marriage is known to all concerns and no one has objected the same
and, no reason recorded to that effect by the Family Court. He has
submitted that the Family Court has not properly appreciated the
facts and evidence and not applied the mind while passing the
impugned judgment and decree. He has submitted that the Family
Court has referred and relied upon the orders passed by this Court
and other Courts which are placed on record and pressed into service.
He has submitted that the present appeal deserves to be allowed and
the impugned judgment and decree deserves to be quashed and set
aside.
5.2 In support of his submissions, Mr.Parikh, learned senior counsel
has relied upon the following decisions.
(1) Poorna D/o. Yashvantrai Harilal Patel Vs. Mehulkumar
Ishwarbhai Vitnani, First Appeal No. 925 of 2017 dated
15.03.2017;
(2) Dipika Amrutbhai Patel Vs. Vishwam Parmanand Patel, 2011
(1) GLH 457;
(3) Anandkumr Jashbhai Patel Vs. Nitalben D/o. Vinubhai
Chhotabhai Patel, First Appeal No. 42 of 2015 dated
24.03.2015;
(4) Sonalben Keyurbhai Patel D/o. Rameshbhai Naranbhai Patel
Vs. Superintendent Regional Passport Office, 2010 AIR (Guj)
136;
(5) Twinkle Rameshkumar Dhameliya Vs. Superintendent, 2006
(4) GLR 3443;
(6) Arjun S/o. Ranappa Hatgundi Vs. Sushilabai @ Sugalabai D/o.
Gurupadappa Yankanchi, Misc. First Appeal No. 202179 of
2023;
(7) S.P.S. Balasubramanyam Vs. Suruttayam @ Andali Padayachi,
1994 (1) SCC 460;
(8) Andrahennedige Dinohamy Vs. Wijetunge Liyanapatabendige
Balahamy, 1927 AIR (PC) 185;
(9) Sanjana Kumari Vs. Vijay Kumar, Criminal Appeal No. 2905 of
2023 dated 18.09.2023;
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(10) S. S. Munnalal and others Vs. S. S. Rajkumar and others, AIR
1962 SC 1493;
(11) Smt. Ass Kaur (deceased) by L.Rs. Vs. Kartar Singh (Dead) by
L.Rs. And others, AIR 2007 SC 2369;
(12) Dipeekaben D/o. Hasmukhbhai Nanjibhai Shrimali Vs.
Vishvjeetsinh Ashoksinh Gohil, Second Appeal No. 91 of 2022
dated 02.01.2024;
6. We have considered the submissions made on behalf of the
appellants and gone through the material available on record and the
impugned judgment and decree passed by the Family Court. It
appears from the record that the Family Court has, while dismissing
the suit, not considered the prayers made by the appellants jointly to
declare their marriage as legal and valid from 26.10.2001, which is
absolutely illegal as first marriage of appellant No.1 was in existence
till decree was passed by the Competent Court only on 15.04.2023;
unless and until the marriage was dissolved by the Competent Court,
the marriage cannot be declared as legal and valid when the first
marriage was in subsistence. It is also relevant to note herein that
appellant No.2 got married with one Mukeshbhai in 1997, which is not
dissolved by any legal decree till date and, therefore, in the eyes of
law, the marriage is in subsistence. The husband of appellant No.2
died in 2008 and during such period, appellant No.2 had not
approached the Competent Court for getting decree of divorce though
she got the divorce as per their customary rituals prevailing in their
community in 2001. Though all the aforesaid facts are aware to
appellants from 2001 to 2025, they have not made any efforts to get
declaration at the earliest and after 24 years of their marriage, the
appellants filed litigation only in 2025 seeking declaration that their
marriage is legal and valid, however, the suit itself is time barred.
Though no one is objecting their relationship, it does not mean that in
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the eyes of law, the appellants can be legally wedded husband and
wife since the relationship between the deceased Mukeshbhai and
appellant No.2 is continued till date and she becomes widow of
Mukeshbhai and during the life time of Mukeshbhai, appellant No.2
has not approached the Competent Court by filing appropriate
proceedings under Section 13(1) seeking consent divorce decree.
Therefore, unless and until, legal and valid decree is passed in favour
of appellant No.2, she cannot be seek declaration of her marriage with
appellant No.1 as legal and valid.
7. In support of the case, the appellants have produced certain
affidavits before this Court by way of additional documents along with
the papers book, which are not produced before the Family Court and
no any witness has been examined to verify the fact which is agitated
before this Court. It is also further to be noted that the appellants
have prayed in the suit that the marriage with appellant No.2 be
declared as legal and valid either from the deed of dissolution of
marriage with earlier husband – Mukeshbhai in 2001 or from the date
when her husband died in 2008 or alternatively from the date of
dissolution between appellant No.1 with first wife Pushpaben i.e. from
the date of decree passed by the Family Court, as appellant No.1
wanted to get Visa in 2008, has filed an application, which came to be
rejected by the concerned authority on the ground that there was no
legal divorce document produced between appellant No.2 with her
earlier husband and, therefore on that count, the application was
rejected and that was the cause for filing the suit. Considering the fact
that appellant No.2 has not filed any proceedings for getting decree of
divorce with her earlier husband – Mukeshbhai till the date of his
death and without getting dissolution of marriage, in legal terms
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indirectly they wanted to get the said reliefs by way of filing the
present appeal which is not permissible in the eyes of law.
8. At this juncture, it would be appropriate to refer to Section 7(a)
and 7(b) of the Family Court’s Act, which reads as under:-
“7. Jurisdiction.–(1) Subject to the other provisions of this
Act, a Family Court shall–
(a) have and exercise all the jurisdiction exercisable by any
district court or any subordinate civil court under any law
for the time being in force in respect of suits and
proceedings of the nature referred to in the Explanation;
and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or, as the
case may be, such subordinate civil court for the area to
which the jurisdiction of the Family Court extends.”
9. It would also be appropriate to refer to Section and 29 of the
Hindu Marriage Act, which reads as under:-
“29. Savings.-(1) A marriage solemnized between Hindus
before the commencement of this Act, which is otherwise
valid, shall not be deemed to be invalid or ever to have
been invalid by reason only of the fact that the parties
thereto belonged to the same gotra or pravara or belonged
to different religion, castes or sub-divisions of the same
caste.
(2) Nothing contained in this Act shall be deemed to affect
any right recognised by custom or conferred by any special
enactment to obtain the dissolution of a Hindu Marriage,
whether solemnized before or after the commencement of
this Act.
(3) Nothing contained in this Act shall affect any
proceeding under any law for the time being in force for
declaring any marriage to be null and void or for annulling
or dissolving any marriage or for judicial, separation
pending at the commencement of this Act, and any suchPage 10 of 19
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proceeding may be continued and determined as if this Act
had not been passed.
(4) Nothing contained in this Act shall be deemed to effect
the provisions contained in the Special Marriage Act, 1954
(43 of 1954), with respect to marriages between Hindus
solemnized under that Act, whether before or after the
commencement of this Act.”
10. The provisions mentioned in the suit itself is completely
misconceived and unless and until the decree of dissolution of
marriage obtained by the concerned parties, they cannot enter into
the second marriage unless the Competent Court passes the decree
in their favour, meaning thereby that the marriage between the
parties was considered in subsistence till the date of declaration of
the marriage. Accordingly, the deed of dissolution of marriage
executed between the parties as per their customary prevailing in
their community, which cannot be recognized unless it is examined by
the Competent Court. It is specific case of appellant No.1 that he got
divorce from the first wife in 2001 by virtue of decree of dissolution
passed by the Foreign Court, however, he has not got any valid
recognizance from the Competent Court of India and when the
objection raised by the office of the Consulate General, USA, appellant
No.2 got a decree of dissolution of marriage in 2023 only. Therefore,
the prayers as sought for by the appellants to declare their marriage
from 2002 as legal and valid, cannot be passed by the Competent
Court and the Competent Court cannot be made part of fraudulent
transaction. In the case of appellant No.2, though she got divorce
from Mukeshbhai in 2001, till the death of her husband in 2008, she
has not got legal and valid decree for divorce from the Competent
Court though they were residing as husband and wife and during the
wedlock, appellant No.2 delivered a boy child, who is now at present
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23 years of age and, therefore, the Court cannot pass any decree.
Therefore, the Family Court dismissed the suit filed by the appellant
for declaration of the marriage as legal and valid solemnized between
appellant No.1 and 2 on 26.10.2001. As per the law prevailing, the
marriage of appellant No.1 was in subsistence with the first wife
Pushpaben till 2023 and, therefore, only after 2023, the person can be
able to marry with someone after getting the decree of divorce and
such decree was passed only on 15.04.2023 and, thereafter, appellant
No.1 can re-marry. However, in this case, though the first marriage of
appellant No.1 is in subsistence he married with appellant No.2,
therefore, the marital relation cannot be recognized in the eyes of
law.
11. The contention raised by Mr.Parikh, learned senior counsel with
regard to declaration sought for declaring the marriage solemnized
between appellants No.1 and 2 is legal and valid on the basis of the
deed of divorce executed between the parties as customary. For the
said contention, it is worthwhile to refer to Section 5 of the H.M. Act,
which reads as under:-
“5. Conditions for a Hindu marriage. – “A marriage may
be solemnised between any two Hindus, if the following
conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the
marriage;
[(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in
consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been
suffering from mental disorder of such a kind or to such an
extent as to be unfit for marriage and the procreation of
children; or
(c) has been subject to recurrent attacks of insanity;]
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(iii) the bridegroom has completed the age of [twenty-
one years] and the bride, the age of [eighteen years] at
the time of the marriage;
(iv) the parties are not within the degrees of prohibited
relationship unless the custom or usage governing each of
them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the
custom or usage governing each of them permits of a
marriage between the two.”
12. On perusal of Section 5 of the H. M. Act, now let Section 11 of
the H. M. Act be referred which reads as under:-
“11. Void marriages. – Any marriage solemnised after the
commencement of this Act shall be null and void and may,
on a petition presented by either party thereto [agains the
other party], be so declared by a decree of nullity if it
contravens any one of the conditions specified in clauses
(I), (iv) and (v) of section 5.”
13. Looking to the close scrutiny of the decision of the Hon’ble
Supreme Court in the case of Sanjana Kumari (supra) more
particularly para – 7 onward, it appears that this decision goes against
the present appellants. In the case of Sanjana Kumari (supra), the
Hon’ble Supreme Court has held and observed in para – 12 as under:-
12. It is apparent in the instant case that the proceedings
under the D.V. Act are still pending final adjudication. 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 thePage 13 of 19
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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
non-maintainability. 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.”
14. For the purpose of deciding the present appeal, as noted
hereinabove by us, the issues emerge from the facts before this Court
are as under:-
(1) Whether the relief which is sought for by the appellants can be
granted or not?
(2) Whether the Court may pass the order of declaration for
marital status of the parties based upon divorce deed
executed by and between the parties as per the custom of
their community / society?
(3) Whether the appellants have proved the deed of divorce
executed between the parties before the Family Court by
leading cogent material evidence?
15. In this regard, considering the fact that the first deed of divorce
executed between appellant No.1 and Pushpaben and on the basis of
same, the divorce decree issued by the Competent Court at Califonia,
meaning thereby that the said dissolution was ordered by the
Competent Court of USA but foreign decree is required to be
recognized and get certified. The second deed of divorce is
concerned, the same was executed by and between appellant No.2
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and Mukeshbhai which was valid or not. For that, they have to prove
the deed of divorce before the Competent Court that the divorce took
place between appellant No.2 and Mukeshbhai was legal and valid
unless it is proved it cannot be said that it is legal and valid evidence.
Now, the question as to whether the Court is competent to issue
declaration as prayed for by the appellants? First and foremost
condition laid down in Section 5 which requires to be satisfied by the
parties. In the present case, during the lifetime of Mukeshbhai,
accused No.2 remarried with appellant No.1 without there being any
legal and valid evidence and unless and until, the marriage declares
as dissolution by the Competent Court on the basis of the deed of
customary divorce executed by and between the parties, for which
the parties have to produce the same before the Competent Court or
registration authority to register the marriage. The marriage with
appellant No.1 cannot be recognized in the eyes of law as legal and
valid because it is in contravention of ingredients of Section 5. The
relevant aspect is required to be kept in mind that whether by way of
customary divorce the parties’ marital status can be declared as they
prayed for on the basis of divorce. The Division Bench of this Court
has considered the aspect of customary divorce in the case of
Bhartiben W/o. Amitbhai Vitthalbhai and D/o. Ravjibhai Kavani Vs.
Amitbhai Vitthalbhai Sojitra reported in 2021 LawSuit (Guj) 3138. In
the said decision, the Division Bench of this Court has made relevant
observation in paras – 7, 7.1, 7.2 and 7.3.
16. We shall first address ourselves on the issue whether there was
a recognized custom in the Leuva Patel Community to dissolve a
marriage by way giving divorce to each other, privately before the
panchas and if so, whether the appellants could be said to have led
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appropriate evidence in that regard. Unless and until, the marriage
between the appellant – wife and her earlier husband was dissolved
legally, the husband had no right to contract a second marriage and
since the earlier divorce was not recognized by law, the parties
continued to be under marital bone.
17. It is well settled principles of law as laid down by the Supreme
Court that prevalence of customary divorce in the community to
which the parties belong, contrary to general law of divorce must be
specifically pleaded and established by person propounding such
custom. In our view, in the absence of any proper pleadings on behalf
of the plaintiff in the plaint about the then alleged existing custom
and customary divorce in the Leuva Patel Community, the plaintiff
could not have led any oral evidence on the said issue.
18. Section 13 of the Hindu Marriage Act, 1955 provides for
dissolution of marriage by a decree of divorce on various grounds set
out therein. Section 4 of the Hindu Marriage Act, 1955 provides that
save as otherwise expressly provided in the Hindu Marriage Act, 1955,
any text, rule or interpretation of Hindu Law or any custom or usage
as part of that law in force immediately before the commencement of
the Hindu Marriage Act, 1955 shall cease to have effect with respect
to any matter for which provision is made in the said Act. Section 29
(2) of the Hindu Marriage Act, 1955 provides that nothing contained in
the said Hindu Marriage Act shall be deemed to affect any right
recognised by custom or conferred by any special enactment to
obtain the dissolution of a Hindu marriage whether solemnized before
or after the commencement of the said Act. Section 3(a) of the Hindu
Marriage Act, 1955 defines the expressions ‘custom’ and ‘usage.’ It is
provided that unless the context otherwise requires, the custom and
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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. It is provided that
the rule is certain and not unreasonable or opposed to public policy
and further provided that in the case of a rule applicable only to a
family, it has not been discontinued by the family.
19. The conjoint reading of Section 3(a), 4(a) and 29 (2)
respectively of the Hindu Marriage Act, 1955 indicates that though
Section 29(2) of the said Act saves the customary rights, a person
who relies upon such custom has to prove that such custom and
usage had been continuously and uniformly observed for a long time
and had obtained the force of law amongst the Hindus in their local
area, tribe, community, group or family and such custom was not
unreasonable or opposed to public policy. In our view, the plaintiff has
miserably failed to prove at the first instance that there was any such
custom prevailing in the Leuva Patel Community to obtain divorce by
execution of a document in presence of the Panchas and secondly,
whether such alleged customary divorce was continuously and
uniformly observed for a long time in the Leuva Patel Community and
was not opposed to public policy.
20. Thus, the custom must be ancient and there must be proof of
customary divorce prior to passing of the Act. All the documents filed
are after the Act and that will not prove custom. The evidence of the
plaintiff is that in the presence of Panchayatdars, divorce had taken
place. It is not the custom and it does not prove that customary
divorce was prevailing in their community and it was ancient and prior
to passing of the Act. To prove customary divorce, the plaintiff must
establish the proof of custom. As regards the nature and quantum of
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proof of custom, the following propositions are enunciated by the
Madras High Court in Gopalayyan v. Ragupatiayyan, 7 MHCR 250 :
“(i) The evidence should be such as to prove the uniformity
and continuity of the usage and the conviction of those
following it that they were acting in accordance with the
law and this conviction must be inferred from the
evidence.
(ii) Evidence of the acts of the kind, acquiescence in those
acts, decisions of Courts, or even of Panchayats, upholding
such acts; statements of experienced and competent
persons of 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 if unsupported by actual examples of the usage
asserted.”
21. Even after the development of the constitutional principles and
in the presence of ever so many welfare legislations in favour of
women, the Courts are recognizing the customary divorces, which can
never be accepted nor be approved. Customary divorce undoubtedly
is a social evil. Customary divorces undoubtedly are happening on
account of the attitude of ill-minded male chauvinists. Customary
divorces are decided by few persons, who may not have much idea
about the social developments and the constitutional perspective. Be
that it be, the only concern of this Court is that such customary
divorces are approved by the Civil Courts even without ascertaining
the basic factors regarding the customs prevailing as well as practice.
Customary divorce can never be approved nor recognized by the law.
The Hindu Marriage Act, which was enacted in the year 1955,
recognized such customary divorce and now, after a lapse of 64
years, the practice of granting customary divorce can never be
adopted nor be followed and the Courts should not approve any such
customary divorce granted by few men from the community or the
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relatives of the husband or wife. In the event of approving such
customary divorces, then the implications would be large and we will
be marching towards backward and that can never be accepted. Such
customary divorces are affecting personal liberty and fundamental
rights of the women to adjudicate their issues before the competent
forum.
22. In view of the aforesaid observation and discussion, we do not
see any reason to interfere with the impugned judgment and decree
passed by the Family Court and the appeal being meritless deserves
to be dismissed. Accordingly, the appeal fails and it is dismissed.
There shall be no order as to cost.
(BIREN VAISHNAV,ACJ)
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
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