Customary Hindu Divorce Can Be Established Only With Strong Proof; Examining A Few Witnesses Not Sufficient: Delhi High Court
An appeal was filed by a woman whose second marriage had been declared void by a family court under the Hindu Marriage Act
Justice Anil Kshetarpal, Justice Harish Vaidyanathan Shankar, Delhi High Court
The Delhi High Court has clarified that a claim of customary divorce among Hindus can be recognised only when supported by strong, clear and convincing evidence, and not through assumptions or generalized reasoning.
These observations were made while dismissing an appeal filed by a woman whose second marriage had been declared void by a family court under the Hindu Marriage Act. The family court had concluded that she was still legally married to her first husband when she entered into her second marriage.
A Division Bench of Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar observed that the existence of a custom allowing dissolution of marriage cannot be established simply by producing a small number of witnesses. The Court said, “It is expected from the parties to prove the prevalence of customary divorce in their area/community by producing judgments that recognise their custom and show past instances of customary divorce in the community. One of the ways to prove the custom is reference to any text or interpretation of Hindu law or usage for long period of time. Once the Court is called upon to declare that there exists a custom which is contrary to the codified law, the burden of proof is heavy upon the party asserting custom. Custom cannot be extended by analogy and it cannot be established by a priori method.”
The woman contended that she had obtained a “panchayati divorce,” a customary form of marital dissolution she claimed was practiced in the Jat community. She argued that only after this customary divorce did she marry her present husband, with whom she also had a son.
Upon reviewing the provisions of the Hindu Marriage Act particularly Section 29(2), which preserves customs relating to divorce the High Court reaffirmed that customary practices dissolving a Hindu marriage must be rigorously pleaded and proven because they form exceptions to the general statutory rule.
Although the family court had initially accepted the existence of such a custom, the High Court found that this conclusion was incorrect. The Bench noted that the woman had failed to present reliable material such as community records, historical evidence, or previous court decisions establishing a consistent and recognised custom of panchayati divorce among Jats.
The only document she submitted was a photocopy of a purported divorce deed, which the Court characterised as nothing more than a private arrangement between the two individuals, lacking any evidentiary value to establish a community-wide custom.
As a result, the High Court upheld the family court’s decision and confirmed that the woman’s second marriage was void.
Cause Title: A v. B, [2025:DHC:10580-DB]
Appearance:
Appellant: Advocates SC Singhal, Parth Mahajan, Garvita Bansal and Ritvik Madan
Respondent: Advocates Mrinal Singh and Priya Rani Jha.
