Kerala High Court: Hearsay Evidence Admissible Regarding Person’s Statement About Existence Of Custom If Conditions U/S 32 Of Evidence Act Satisfied

The Kerala High Court held that the hearsay evidence is admissible regarding the statement or opinion of a person about the existence of a custom, if the conditions under Section 32 of the Indian Evidence Act, 1872 (IEA) are satisfied.

The Court held thus in a Matrimonial Appeal filed against the Decree which declared the Respondents as the wife and daughter of the Appellant.

A Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar observed, “To prove a custom it is not necessary that a person should have personally witnessed instances establishing the custom, since even hearsay evidence is admissible regarding the statement or opinion of a person about the existence of a custom, provided, the conditions of Section 32 of the Evidence Act are satisfied. Therefore, broadly stated, the evidence adduced to prove the existence of a custom should be in the nature referred to above.”

The Bench said that the person through whom the existence of a custom is to be proved should be one who would be likely to know of its existence, if it existed.

Advocate K.P. Hareendran represented the Appellant.

Factual Background

The parties belonged to the Hindu Thiyya community. The Respondents contended that the first among them married the Appellant in 1988 in accordance with the religious customs prevailing in their community, and that the second Respondent was born out of the wedlock in 1989. They alleged that they were later driven out of the matrimonial home by the Appellant and his family members, and that he failed to maintain them. The Respondent was earlier married to another person when she was about 12 years old and their marriage was dissolved about six months later by a customary divorce. The Respondents had filed a Suit against the Appellant seeking a declaration that they are his wife and daughter.

The Appellant denied such averments and contended that there was no marriage between him and the Respondent and the second Respondent is not his child. The suit was initially decreed in favour of the Respondents, but was reversed in Appeal. When the matter was taken up in Second Appeal, the High Court set aside the Judgments and, after framing additional issues, remanded the case for disposal based on findings on those additional issues. The parties were also permitted to amend their pleadings and adduce further evidence. Meanwhile, with the establishment of the Family Court, Thalassery, the case was transferred to that Court. By the Judgment under challenge, the Family Court allowed the claim of the Respondents. Being aggrieved, the Appellant approached the High Court.

Reasoning

The High Court in view of the facts and circumstances of the case, noted, “It is well settled that the right to obtain dissolution of a Hindu marriage on the basis of such custom can be accepted by the Court only if the party asserting it succeeds in proving that the custom has prevailed in the community with the essential attributes of antiquity, continuity, and reasonable certainty. Antiquity and continuity are indispensable features of a practice for it to mature into a legally acceptable custom. The burden of proof in this regard lies entirely upon the person who relies upon the existence of such a custom.”

The Court reiterated that if a right is claimed based on a custom, it must be pleaded and proved with meticulous details.

“In the absence of clear and reliable proof regarding antiquity, continuity, and reasonable certainty of the custom claimed, the alleged ceremony, if at all held, cannot be accepted as sufficient proof of custom within the meaning of Section 29(2) of the Act”, it added.

The Court was of the view that one or two instances of a particular practice, or the occasional adoption of a local practice by certain community members, will not qualify it as a custom having the force of law.

“… a customary divorce is an exception to the general law and can be accepted only with utmost care, caution, and reliable evidence. These aspects were overlooked by the Family Court. The sufficiency of the evidence on the first issue framed at the time of remand, already noted earlier, has not been considered”, it remarked.

The Court further said that when the first Respondent failed to prove the factum of the customary divorce pleaded, the marriage with the Appellant could only be treated as void, in view of Section 11 read with Section 5(i) of the Hindu Marriage Act, 1955 (HMA).

“Hence, the judgment insofar as it upheld the validity of marriage between the 1st respondent and the appellant is liable to be set aside. However, in view of Section 16 of the Act, the legitimacy of the child will not be affected even if the marriage is void or voidable. Section 16 provides that notwithstanding the nullity of a marriage under Section 11, any child of such marriage shall be legitimate. Therefore, the declaration granted with regard to the second respondent warrants no interference”, it also observed.

Conclusion

The Court explained that an order for maintenance under Section 125 of the Criminal Procedure Code, 1973 (CrPC) can be issued in favour of a ‘wife’ who is unable to maintain herself when the ‘husband’ having sufficient means neglects or refuses to maintain her and a woman who contracts a marriage with a man during the subsistence of her earlier marriage cannot be regarded as a ‘wife’ within the meaning of Section 125 of CrPC.

“In view of the law laid down by the Apex Court as above, it is open to the first respondent to make an application before the Family Court for permanent alimony, irrespective of the fact that her marriage is void. Similarly, as the Apex Court has held that the courts are not precluded from granting maintenance pendente lite in such cases on satisfaction of the conditions mentioned in Section 24 of the Act. Taking cue from the same, we direct that the amount, if any, paid by the appellant pursuant to the said maintenance order shall be treated as maintenance pendente lite, as we find that the conditions mentioned in Section 24 are satisfied in the present case”, it directed and concluded.

Accordingly, the High Court partly allowed the Appeal and set aside the impugned Judgment so far as it was related to the declaration that the marriage of the first Respondent with the Appellant is valid.

Cause Title- ABC v. XYZ & Anr. (Neutral Citation: 2025:KER:72048)

Appearance:

Advocates K.P. Hareendran, Prajit Ratnakaran, and N. Shamna.

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