The Aim of This Article is to Explore the Inverse Relationship of a Custom Empowering the Parties to...

8/3/2019 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 Sacramen…

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The aim of this article is to explore the inverse relationship of a custom empoweringthe parties to the marriage to dissolve their marriage and the sacramental continuityof a marriage soleminised under the Hindu Marriage Act, 1955. A valid and legallyrecognised custom is respected and given due weight by the courts so that it canhave its full operation. This is so because no person, including a court, has a right tochallenge a well recognised and universally accepted custom, which has passed the

test of time and the rigorous of public and societal interest.

I. Introduction

Marriage is the very foundation of a civilised society. The relation once formed, thelaw step in and binds the parties to various obligations and liabilities thereunder.Marriage is an institution in the maintenance of which the public at large is deeplyinterested. It is the foundation of the family and in turn of the society without whichno civilisation can exist. A marriage solemnised, whether before or after thecommencement of the Hindu Marriage Act, 1955 (Act) can only be dissolved by adecree of divorce on any of the grounds enumerated in Section 13 of the Act. Till thetime a Hindu marriage is dissolved under the Act none of the spouses can contractsecond marriage. Thus, it is obvious from the various provisions of the Act that themodern Hindu Law strictly enforces monogamy[1]. Even under the Muslim Lawplurality of marriage is not unconditionally conferred upon the husband. Muslim lawas traditionally interpreted and applied in India permits more than one marriageduring the subsistence of one and another though capacity to do justice between cowives in law is condition precedent[2]. As per the Hindu Law administered by courtsin India divorce was not recognised as a means to put an end to marriage, whichwas always considered to be a sacrament, with only exception where it is recognisedby custom. Public policy, good morals and the interests of society were considered torequire and ensure that, if at all, severance should be allowed only in the mannerand for the reason or cause specified in law. One of the causes expressly recognisedby law is the legal sanction of a valid custom to dissolve a marriage. Thus the rulesof dissolution of marriage and monogamy are subject to a valid custom to the

contrary. This shows that the law relating to marriage and divorce of Hindus has aninverse relationship with a recognised valid custom. If a Hindu custom allows theparties to the marriage to dissolve their marriage as per the custom, then the Actcannot prohibit its operation, even if it goes against the basic spirit of the Act.

II. The inverse relationship

The importance of the custom in relation to the applicability of the Act has beenacknowledged by the Legislature by incorporating Section 29(2) providing thatnothing in the Act can affect any right, recognised by custom or conferred by anysaid enactment to obtain the dissolution of a Hindu Marriage whether solemnisedbefore or after the commencement of the Act even without the proof of theconditions precedent for declaring the marriage invalid as incorporated in Sections 10to 13 of the Act. Thus, a marriage which may not be permissible to be dissolved asper the provisions of the Act can still be dissolved if the party relying on a customcan successfully plead and prove it. This shows that a valid and recognisedcustomary law of divorce will prevail over the provisions of the Act and thus it sharesan inverse relationship with the provisions of the Act, which restrict the right of thespouses to get divorce on limited grounds only. It must be noted that the customarylaw 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 andbinding custom or usage empowering the parties to obtain divorce are:



(1) it must be of immemorial existence, it must be reasonable, it must, be certainand it must be continuous. Every custom must have to be in existence precedingmemory 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 legalmemory[3],

(2) it is the essence of special usages modifying the ordinary law that they should beancient and invariable; it is further essential that they should be established to beso, by clear and unambiguous evidence and that it is only by means of such findingsthat the Courts can be assured of their existence and that they possess theconditions of antiquity and continuity and certainty on which alone their legal title torecognition depends. Custom must be proved and the burden of proof is on theperson who asserts it[4],

(3) after the existence of a custom for some years has been proved by directevidence, it can only, as a rule, be shown to be immemorial by hearsay evidence andit is for this reason that such an evidence is allowable as an explanation to thegeneral rule[5],

(4) the breach of a custom in a particular instance need not destroy it for alltimes[6],

(5) the material customs must be proved in the first instance by calling witnessesacquainted with them until a particular custom has by frequent proof in the Courtbecomes so notorious that the Courts take judicial notice of it. A custom cannot beextended by logical process[7],

(6) an oral evidence as to instances, which can be proved, by documentary evidencecannot be fairly relied upon to establish custom when no satisfactory explanation forwithholding the best evidence is given. Custom cannot be extended by analogy and it

cannot be established by a priori method[8], and

(7) the ordinary rule is that a custom, general or otherwise, has to be proved underSection 57 of the Evidence Act. However, nothing need be proved of which theCourts can take judicial notice. When a custom has been judicially recognised by theCourt then it passes into the law of the land as proof of it becomes unnecessaryunder Section 57(1) of the Evidence Act[9].

III. Judicial response

The response of the courts in India is two fold. On the one hand they respect themandates of the valid and well-recognised customs whereas on the other hand anyattempt, which fails to satisfy the rigours of public policy and societal interests, isthwarted at the very threshold. The courts are also very conscious to ensure that therequirement of the existence of a valid custom are duly fulfilled and they must beexpressly pleaded and clearly established before any relief is granted. The generalimpression is that since these customs are going against the basic theme and policyof the Act, they must be construed narrowly and strictly. At the same time oncethese customs are validly recognised even in the limited, narrowed and restrictedparameters of societal interests, they are given their due weight age and the wisdomof courts is not substituted for their wisdom and recognition.



In Sankarlingam v Subban[10] divorce by consent was held valid as a matter of custom of the Pakhali caste of Ahmedabad observing that there was nothing immoralin a caste custom by which divorce and remarriage were permitted by mutualagreement. There was no invalidity in a custom by which married couple on accountof disagreement between them by consent could divorce and were divorced by

parties approaching the headman and other relations, paying certain amount andtaking away tali or the sacred thread from round the wife's neck and giving it back tothe husband. It was only when the divorce was enforced against the wishes of hiswife that the custom permitted divorce would be illegal.

In Pakhali Jina Magan v Bai Jethi[11] it was held that a custom of divorce withmutual consent of husband and wife stated to exist among the Hindus of Pakhalicaste of Ahmedabad was not repugnant to Hindu Law. When it was contended thatthe institution of divorce was itself opposed to the concept of Hindu law and thatthere was no decision of any Court in India which held a custom of divorce as validas it was observed that divorce is not contemplated by the Hindu Law but it is notrepugnant to its principles, and if there be a well established custom in its support, itmay override the general provisions of that law. It was further observed that therehad been many cases in our Courts arising out of divorce in the lower castes. In allthose cases even where it was held that the divorce had not been properly granted,it had been taken for granted that the custom of divorce can validly exist in aparticular community, especially if it is a Sudra community, but that divorce grantedcannot be forced by the caste against an unwilling person.

In Veerappa Chettiar v Michael[12] the main question involved in both the appealswas whether the marriage of Bangaru Ammal was in Asura form or in Brahma form.The contention of the appellant was that it was not in Asura form. The Court heldthat the marriage of Bangaru Ammal was not in Asura form but in Brahma form. TheCourt observed: “Except a bare allegation in the plaint that the said marriage washeld in Asura form, the plaintiffs did not give any particulars or set up any custom in

the community to which the parties to the marriage belonged. There was nothing toshow that there was a practice in the family to give Kambu as 'Parisam for the brideor Kambu was paid as 'Parisam' at the time of the betrothal ceremony in connectionwith the marriage of Bangaru Ammal. We are also in these appeals not concernedwith any customary form of marriage but only with a marriage sanctioned by HinduLaw, for no custom was pleaded in derogation of Hindu Law. But there may be acustom in a community not in derogation of the Hindu Law but in regard to themanner of complying with a condition laid down by Hindu Law. That is to say if thecriterion for an Asura marriage was that there should be a sale of the bride, theremay be a custom in a community in regard to the manner of paying theconsideration' for the sale”.

In Shakuntalabai v V.L.V. Kulkarni[13] the Supreme Court held that custom must beproved and the burden of proof is on the person who asserts it. A custom cannot beextended by logical process. The Court observed: “ Customs cannot be extended byanalogy and it cannot be established by a priori method. Further, nothing need beproved 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 itbecomes unnecessary under section 57(1) of the Evidence Act. The Courtentertaining no doubt that there has been ancient and unbroken customs of dissolution of marriage and of Serai Udiki marriage among the PanchamasalLingayats which was judicially noticed by the Courts, and that the marriage in the



instant case, of the fourth defendant with Gurulingappa was proved to have beencustomarily dissolved and that she was subsequently legally married with Gurappa inthe valid customary form of Udiki marriage, whereafter, she lived with Gurappa ashusband and wife until Gurappa died, and that, thereafter, she enjoyed the familypension by dint of her being nominated as wife of Gurappa to the knowledge of allconcerned. She was accepted by the community as wife of Gurappa even after his

death. There is, therefore, no scope for declaring the marriage illegalposthumously”.

In Dr. Surajmani Stella Kujur v D.C.Hansdah (14-02-01) the Supreme Courtobserved: “It is conceded even by the appellant that the parties to the petition aretwo Tribals, who otherwise profess Hinduism, but their marriage being out of thepurview of Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thusgoverned only by their Santal Customs and usage. The appellant has, however,relied upon an alleged custom in the Tribe, which mandates monogamy as a rule. Itis submitted that as the respondent has solemnized a second marriage during thesubsistence of the first marriage with the appellant, the second marriage being void,the respondent is liable to be prosecuted for the offence punishable under Section494 of the Indian Penal Code. No custom can create an offence as it essentially dealswith the civil rights of the parties and no person can be convicted of any offenceexcept for violation of law in force at the time of commission of the act charged.Custom may be proved for the determination of the civil rights of the partiesincluding their status, the establishment of which may be used for the purposes of proving the ingredients of an offence which, under Section 3(37) of the GeneralClauses Act, would mean an act or omission punishable by any law by way of fine orimprisonment. Article 20 of the Constitution, guaranteeing protection in respect of conviction of offence, provides that no person shall be convicted of any offenceexcept for violation of law in force at the time of commission of the act charged as anoffence. Law under Article 13 clause (3) of the Constitution means the law made bythe Legislature including intravires statutory, orders and orders made in exercise of powers conferred by the statutory rules. For custom to have the colour of a rule or

law, it is necessary for the party claiming it to plead and thereafter prove that suchcustom is ancient, certain and reasonable. Custom being in derogation of the generalrule is required to be construed strictly. The party relying upon a custom is obliged toestablish it by clear and unambiguous evidence. Nowhere in the complaint theappellant has referred to any alleged custom having the force of law, which prohibitsthe solemnisation of second marriage by the respondent and the consequencesthereof. It may be emphasised that mere pleading of a custom stressing formonogamy by itself was not sufficient unless it was further pleaded that secondmarriage was void by reason of its taking place during the life of such husband orwife. In order to prove the second marriage being void, the appellant was under anobligation to show the existence of a custom, which made such marriage null,ineffectual, having no force of law or binding effect, incapable of being enforced inlaw or non- est. The fact of second marriage being void is a sine qua non for theapplicability of Section 494 IPC. It is settled position of law that for fastening thecriminal liability, the prosecution or the complainant is obliged to prove the existenceof all the ingredients constituting the crime which is normally and usually defined bya statute. In view of the fact that parties admittedly belong to the Scheduled Tribesand in the absence of specific pleadings, evidence and proof of the alleged custommaking the second marriage void, no offence under Section 494 of the Indian PenalCode can possibly be made out against the respondent”.

In Yamanaji Jadhav v Nirmala[14] the Supreme Court observed: “We find that the



courts below have erroneously proceeded on the basis that the divorce deed reliedupon by the parties in question was a document which is acceptable in law. It is tobe noted that the deed in question is purported to be a document, which is claimedto be in conformity with the customs applicable for divorce in the community towhich the parties to this litigation belong.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 sincesaid custom of divorce is contrary to the law of the land and which, if not proved, willbe a practice opposed to public policy. In the instant case, we have perused thepleadings of the parties before the trial court and we do not find any material toshow that prevalence of any such customary divorce in the community, based onwhich the document of divorce was brought into existence was ever pleaded by thedefendant as required by law or any evidence was led in this case to substantiate thesame. It is true in the courts below that the parties did not specifically join issue inregard to this question and the lawyers appearing for the parties did orally agreethat the document in question was in fact in accordance with the customary divorceprevailing in the community to which the parties belonged but this consensus on thepart of the counsel or lack of sufficient pleading in the plaint or in the writtenstatement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established ina court of law. In our opinion, even though the plaintiff might not have questionedthe validity of the customary divorce, the court ought to have appreciated theconsequences of their not being a customary divorce based on which the documentof divorce has come into existence bearing in mind that a divorce by consent is alsonot recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case it is necessary that the trial court bedirected to frame a specific issue in regard to customary divorce based on which thedivorce deed dated 26th of June, 1982 has come into existence and which is thesubject matter of the suit in question. In this regard, we permit the parties to amendthe pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the

process of or outside court) in their community and then test the validity of thedivorce deed dated 26.6.1982 based on the finding arrived at in deciding the newissue”.

IV. Conclusion

A close reading and appreciations of the traditional Hindu Law and the Act revealsthat the codification of the traditional Hindu Law is a positive step in the rightdirection, which recognises a benign movement from the statehood of non-recognition to the platform of recognition of grounds for divorce. The traditionalHindu law did not recognise the system of divorce and the husbands were literallyfree to desert their wives, as this was a socially accepted phenomenon. There was, of course, the customary law which recognised that divorce can be granted by eitherparty to the marriage if a custom prevailing in their community permits them to doso. The legislature by way of codification has improved the “marital equality” amongthe spouses by formulating certain grounds, which can be invoked by either spouseto get a decree of divorce. In this sense the legislature has made “positive andconstructive departures” from the traditional Hindu law. The best part about thiscodification drive is that it expressly and in clear terms reserved the right to grantdivorce under the customary Hindu law by incorporating Section 29(2) in the Act.Thus, the spouses are now free to get divorce either by invoking the provisions of



the Act or by successfully pleading and proving a valid custom permitting them toobtain divorce.

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