Family Law- Customary Divorce

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNVERSITY, LUCKNOW 2014-2015

FINAL DRAFT FAMILY LAW ON

“CUSTOMARY DIVORCE IN HINDU LAW” UNDER THE SUPERVISION OF:

SUBMITTED BY:

Ms. Samreen Hussain Assistant Professor (Law)

Shivam Kumar Roll No. : 123

Dr. RMLNLU, Lucknow

B.A.LLB(Hons.) Sem. IV

ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the writing of this project. I would like to express my special thanks and gratitude to my teacher Ms. Samreen Hussain who gave me the golden opportunity to do this project which also helped me in doing a lot of research work and I came to know about a lot of new things. I am really thankful to them. Secondly I would also like to thank my friends who helped me a lot in finishing this project within the limited time. I am making this project not only for marks but also to increase my knowledge. Thanks again to all who helped me.

- Shivam Kumar

TABLE OF CONTENTS

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INTRODUCTION DIVORCE - Kautilya position MAINTENANCE LAWS APPLICABLE

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INVERSE RELATIONSHIP DISSOLVING OF MARRIAGES RIGHTS ON DIVORCE SUPREME COURT RULING ON CUSTOMARY DIVORCE CONCLUSION BIBLIOGRAPHY

INTRODUCTION

Under the Hindu Marriage Act, 1955 both the husband and the wife have been given a right to get their marriage dissolved by a decree of divorce on more than one grounds specifically enumerated in Section 13. Some of the grounds initially inserted were substituted and some more grounds came to be added. The customary divorces may still be obtained through the agency of gram panchayats or caste tribunal or caste panchayats, by private act of parties, orally or in writing, or under an agreement, oral or written. The Gram-panchayats and caste-panchayats continue to exercise jurisdiction over customary divorces. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Thus, it is obvious from the various provisions of the Act that the modern Hindu Law strictly enforces monogamy. It was in the year 1964 that subsection (1A) was inserted by which either party to the marriage was also given a right to apply for dissolution of marriage by a decree of divorce either where there has been no resumption of cohabitation for the period specified therein, after the passing of the decree for judicial separation; or where there has been no restitution of conjugal rights for the period specified therein, after the passing of the decree for judicial separat ion; or where there has been no restitution of conjugal rights for the period specified therein after the passing of a decree for restitution of conjugal rights.

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Divorce – Kautilya position

Despite the fact that various scriptures preceding arthashaastra make it almost impossible to reverse or dissolve a Hindu marriage post the rite of sapta-padi (saat phera) kautilya1, he says: 

Firstly, If husband is either of a bad character or has long gone (abroad) , turned traitor to the King, or is likely to endanger the life of his wife or has fallen (in esteem) of his cast

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or lost virility, he may be abandoned by his wife. Secondly, neither can woman dissolves her marriage against the will of husband nor can man against the wishes of wife. However, through mutual enmity divorce is possible

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Book III Ch 3 verses 15, 16. Thirdly, any neglect in intercourse after the monthly menses by husband is a valid cause for woman seeking divorce Book III Ch 4 verses 34, 35 & 36.

MAINTENANCE

Kautilya introduces a concept of “Shulka” and “Graasac Chadaana” The former means a fee, property and compensation to woman for allowing a man to re-marry (by divorcing hem) and 1

latter means a livelihood in terms of sufficient clothing and food in case the husband has limited means or a fixed proportion of his income if he is wealthy. Kautilya is categorical in saying that the right of woman over livelihood is for an unlimited period unless she re-marries. He also deals, in detail, as to how a woman should spend such an acquired wealth in case she has children or otherwise in Ch 3 and Ch 4 of Book III.

LAWS APPLICABLE The fact that S. 29 (2) of the Hindu Marriage Act, 1955 specifically allows for the continuation of customary Hindu divorces signifies for , in this respect, that Indian law purposefully recognises panchayat divorces as a valid form of divorce proceedings. Thus, I would draw a fine distinction between Hindu customary divorces before a panchayat and the so-called 'bare talaq' under Indian Muslim law, which remains unregulated by Indian state law and thus would probably not qualify under the ambit of Family Court Act, 1984 which is a special enactment and any special act coming in forth overrules earlier Acts such as HMA, 1955.

INVERSE RELATION The importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29(2) providing that nothing in the Act can affect any right, recognized by custom or conferred by any said enactment to obtain the dissolution of a

Hindu Marriage whether solemnized before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Sections 10 to 13 of the Act. Thus, a marriage which may not be permissible to be dissolved as per the provisions of the Act can still be dissolved if the party relying on a custom can successfully plead and prove it. This shows that a valid and recognized customary law of divorce will prevail over the provisions of the Act and thus it shares an inverse relationship with the provisions of the Act, which restrict the right of the spouses to get divorce on limited grounds only. It must be noted that the customary law of divorce can be relied upon only if it satisfies certain well-accepted principles, 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:-

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It must be of immemorial existence, it must be reasonable, it must, be certain and it must be continuous. Every custom must have to be in existence preceding memory of man and if the proof was carried back as far as living memory would go, it should be presumed that the right claimed had existed from time of legal memory.

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It is the essence of special usages modifying the ordinary law that they should be ancient and invariable; it is further essential that they should be established to be so, by clear and unambiguous evidence and that it is only by means of such findings that the Courts can be assured of their existence and that they possess the conditions of antiquity and continuity and certainty on which alone their legal title to recognition depends. Custom must be proved and the burden of proof is on the person who asserts it,

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After the existence of a custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence and it is for this reason that such evidence is allowable as an explanation to the general rule.

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The breach of a custom in a particular instance need not destroy it for all times.

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The material customs must be proved in the first instance by calling witnesses acquainted with them until a particular custom has by frequent proof in the Court

becomes so notorious that the Courts take judicial notice of it. A custom cannot be extended by logical process. 

An oral evidence as to instances, which can be proved, by documentary evidence cannot be fairly relied upon to establish custom when no satisfactory explanation for withholding the best evidence is given. Custom cannot be extended by analogy and it cannot be established by a priority method.

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The ordinary rule is that a custom, general or otherwise, has to be proved under Section 57 of the Evidence Act. However, nothing need 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.

DISSOLVING OF MARRIAGES

The same laws according to which the marriage was solemnised govern dissolution of marriages, and the rights consequent to the dissolution. The Indian Divorce Act, Special Marriage Act, The Parsi Marriage and Divorce Act and the Hindu Marriage Act, provide for annulment of the marriage, since its very inception, on grounds such as the non-fulfilment of mandatory conditions already

mentioned in Question 2 above. The Indian Divorce act requires confirmation by the High Court to come into effect.

The acts also prescribe that marriages may be annulled by decree if a party wilfully refuses to consummate the marriage, or if the wife was pregnant by a person other than the husband at the time of marriage, or if the consent of the parties was procured by coercion or fraud. I have received queries whether this would cover situations of ‘pressure’ and ‘emotional blackmail’ from parents. It would depend on the circumstances. But I doubt the court would accept such a ground if the party was an educated, employed adult and who was otherwise socially independent. Social and religious circumstances surrounding marriage in India do give rise to situations such as these where persons consider themselves bound by parental approval or decisions.

Marriages may also be dissolved if the spouse has not been heard of as living for a continuous period of 7 years. The spouse applying for dissolution would have to prove that he or she took adequate steps to seek out the other spouse.

All Indian personal laws have provided for grounds for divorce. Some common grounds of divorce are: 

Adultery

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Cruelty

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Desertion and failure to maintain

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Conversion to another religion

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Incurable mental disorder

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Incurable mental disorder which may result in abnormally aggressive or irresponsible behavior

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Virulent and incurable leprosy, or communicable venereal disease not contracted from the party filing the application

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Renunciation of worldly life

The parties may decide to seek divorce by mutual consent, having decided that they do not want to live together. In such a petition, they need not disclose their reasons for making such a decision. Muslim personal law also grants several options for the husband to seek divorce without approaching the court. The wife would be entitled to maintenance and dower and also to appeal the divorce in court.

RIGHTS ON DIVORCE The rights on divorce are also governed by the law under which the marriage was solemnised.

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the couple is no longer required to cohabit.

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the spouse unable to take care of herself or himself in the standard to which he or she was used to, while married, is entitled to be maintained by the other spouse.

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under Muslim law, the wife would be entitled to maintenance as per Shariat law.

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the children will be entitled to be maintained financially by the parent who can best look after their interest. However, custody may be granted to the parent in

whose care, the child’s welfare shall be best served. Indian courts are generally in favour of granting custody of minor children to the mother.

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Custody of children may be sought by the parties in the divorce proceedings.

SUPREME COURT RULING ON ‘CUSTOMARY DIVORCE’ “Customary divorce'' prevailing in a community to which the parties belong (in a given case) should be ``properly established'' - in a court of law on the basis of relevant pleadings and evidence and that ``mere oral agreement'' between the lawyers appearing for the parties would not enable the court to permit a plea of ``customary divorce'' in the case, the Supreme Court has ruled. ``Even though the plaintiff (Hindu wife) 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'' (in the community of the parties) based on which the document of divorce (allegedly obtained by the husband by ``coercion'') has come into existence bearing in mind that a ``divorce by consent'' is also not recognizable by a court unless specifically permitted by law,'' the Bench said. Setting aside the judgment and the decree of the courts below on the issue of ``divorce'' between the parties , the Bench remanded the matter back to the trial court (Karnataka) to frame an ``appropriate issue'' in regard to the existence of a provision for ``customary divorce'' in the community of the parties to these proceedings to get a marriage dissolved except through the process of or outside the court.'' The trial court will consider afresh the case of the parties set up in the suit (from the wife against the validity of ``divorce deed'' obtained allegedly by ``coercion and undue influence'' by the husband) in accordance with law and in the light of the observations made in this judgment.

CONCLUSION In India, as per Hindu culture, tradition, customs and practices, marriage are considered to be made in heaven. Therefore marriages in India are considered to be the highest form of social relationship. It gives the person who is to live with us for whole life, to share our good and bad times, give us support any time we need and helps in developing our family. We need to respect not only the person but the institution of marriage as well.

There was, of course, the customary law which recognized that divorce can be granted by either party to the marriage if a custom prevailing in their community permits them to conclude:

Firstly, marriage is a holy union for which certain rites must be performed for it to be complete. The essential ceremonies necessary for the performance of a Hindu marriage are Kanyadanam, Panigrahana and Saptapadi. It is also obligatory for begetting son, for discharging ancestral debts and for performing religious and spiritual duties. Without

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marriage there can be no children and without them Moksha cannot be attained. Secondly, it is an etching union as husband and wife are united to each other not merely

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for this life but even for the other world. Lastly, it is a permanent union as parties to marriage cannot dissolve it at will. It involves sacrifices on the part of both as each other is called upon to overcome the incompatibility of the other. Demands of personal gratification and pleasures are subordinated and the individual is called upon to make marriage a success by means of compromise and adjustment. Under the accepted social system everyone has to pass through all the four

Ashramas. A Hindu male goes through the performance of several sacraments during the course

of his life starting with the laying of the fetus and ending with the cremation of his body. Similarly marriage is said to be essential for a woman because that is the only sacrament that can be performed for her.

But the manner in which the judiciary is dealing with the subject of irretrievable break down of marriage, it is feared that it will completely break the system of marriages. Every theory has their own negative and positive traits. There applicability differs from situation to situation. Therefore it is very essential that the law makers of our country should deal with the subject in a very cautious manner after considering in detail its future implications.

References Bibliography: Statutes referred Hindu Marriage Act, 1955

Books referred

1. Dr. Diwan Paras, Modern Hindu Law. 2. Kumud Desai’s Indian Law of Marriage and Divorce, 7th Edition 2008 3. MullaHinduLaw Vol II, 20th Edition Reprint 2010. 4. Poonam Pradhan Saxena Family Law Lectures: Family Law II, 2nd Edition 2007 5.

Reprint 2010 U.P.D Kesari, Modern Hindu Law.

Webiliography: 1.

http://www.justice.govt.nz/family-justice/separation/divorcing

2.

http://articles.latimes.com/1987-07-12/news/mn-3473_1_divorce-law

AIM The aim of this article is to explore the inverse relationship of a custom empowering the parties to the marriage to dissolve their marriage and the sacramental continuity of a marriage soleminised under the Hindu Marriage Act, 1955. A valid and legally recognized custom is respected and given due weight by the courts so that it can have its full operation. This is so because no person, including a court, has a right to challenge a well recognized and universally accepted custom, which has passed the test of time and the rigorous of public and societalinterest.