Cecily Zamora
In India, customary divorce is a recognised method of separation without court involvement if such a custom is recognised by marriage laws. It is only applicable to Hindus after the Hindu Marriage Act, 1955 came into force. However, the concept of customary divorce is not widely accepted in Indian society or under the provisions of the law. The Supreme Court of India has ruled that marrying a second time based on a customary divorce from the first spouse will render the second marriage void, as remarriage is only permitted if neither party has a living spouse.
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What You'll Learn
Customary divorce is only applicable to Hindus
In India, divorce was first legally recognised during British rule in 1869, but this was primarily for Christians. The Hindu Marriage Act was formed in 1955 to enable people, including Hindus, Buddhists, Jains, and Sikhs, to file for divorce.
Customary divorce is a recognised method of separation without involving the courts, but only if such a custom is recognised by marriage laws. A person claiming any such customary divorce must establish that such a custom was prevalent in their society or community. According to the Hindu Marriage Act, a marriage is considered legal if a couple gets married using customary rituals and rights, and they are lawfully bound.
However, customary divorce is not always accepted under the provisions of the law. In one case, the Madurai Bench of the Madras High Court stated that customary divorce was a "social evil", and that it affected the personal liberty and fundamental rights of women. The Supreme Court also declared a second marriage null and void when it was based on a "customary divorce" from the first wife, as the law stipulates that a man or woman is permitted to remarry only if they do not have a living spouse.
Therefore, while customary divorce is applicable to Hindus under the Hindu Marriage Act, it is not always accepted by the courts, and it cannot be used as a licence to remarry without legal recognition of the divorce.
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Customary divorce is not accepted under provisions of law
In India, a customary divorce is a recognised method of separation that does not involve the court, providing that the custom is recognised by marriage laws. However, the concept of customary divorce is not generally accepted under the provisions of the law.
In a 2019 case, the Madurai Bench of the Madras High Court ruled that customary divorce was a "'social evil' that was affecting the personal liberty and fundamental rights of women to adjudicate their issues before a competent forum. The court also allowed the woman in the case to approach a competent forum for claiming maintenance.
In another case from 2019, the Supreme Court ruled that marrying a second time on the basis of a "customary divorce" from the first wife will render the second marriage void, as the law states that a man and woman are permitted to marry only if they do not have a living spouse. The court also ruled that no time limit can be set for filing a petition for annulment of marriage, and that it could be filed as and when a party to the marriage discovers that the other had a living spouse at the time of their marriage.
According to the Hindu Marriage Act, 1955, Hindus can seek to end their marriage by obtaining a declaration that the marriage was a nullity on the grounds specified in Section 11, or dissolve the marriage on any of the grounds mentioned in Section 13 of the Act. Section 29 of the Act states that nothing contained within it should be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnised before or after the commencement of this Act.
It is important to note that the Indian Divorce Act, enacted in 1869, governs divorce proceedings among Christian couples in India. It outlines the grounds for divorce, such as adultery, cruelty, desertion without a reasonable excuse for two or more years, and conversion to another religion.
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Customary divorce is a recognised method of separation without involving the court
In India, a customary divorce is a recognised method of separation that does not involve the court. However, this is only applicable to Hindus and certain conditions must be met. Firstly, the custom must be recognised by marriage laws, and proof of prevalence in the community or caste/community of the person seeking the divorce is required.
The Hindu Marriage Act, 1955, outlines the grounds for divorce for Hindus, which include nullity and dissolution. Section 29 of the Act specifically addresses customary divorce, stating that it does not affect "any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage".
Despite being a recognised method of separation, customary divorce is not always accepted by the courts. In one case, the Madurai Bench of the Madras High Court stated that customary divorce was a “social evil" that affected the personal liberty and fundamental rights of women. The court emphasised that a competent court of law must grant the dissolution of marriage for it to be legally valid.
Additionally, customary divorce does not provide a licence to remarry. The Supreme Court of India has ruled that marrying a second time based on a customary divorce from the first spouse will render the second marriage void, as the law stipulates that individuals are permitted to remarry only if they do not have a living spouse.
It is important to note that foreign court judgments may not be binding in India, as divorce is determined by the concerned Indian Act under which the parties were married. However, exceptions may apply if the foreign court's jurisdiction is accepted and the divorce is granted on permissible grounds.
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Customary divorce is not a licence to remarry
In India, a customary divorce is a recognised method of separation that does not involve the court, providing that such a custom is recognised by marriage laws. However, it is only applicable to Hindus, following the Hindu Marriage Act, 1955.
In a 2019 case, a woman discovered a marriage dissolution deed from her husband's first wife and moved a Pune court to have her own marriage declared void. The court ruled in her favour, annulling the marriage. The bench also ruled that no time limit could be set for filing a petition for annulment and that it could be filed as and when a party to the marriage discovers that their spouse was already married at the time of their wedding.
In another case, the Madurai Bench of the Madras High Court heard the plight of a woman deserted by her husband. The court allowed the woman to approach a competent forum for claiming maintenance.
The concept of customary divorce is not generally accepted in Indian society or under the provisions of the law. A person claiming any such customary divorce as a valid dissolution of marriage must establish that such a custom was prevalent in society or in the particular community. Undisputable proof is required for establishing a customary divorce.
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Foreign court judgments are not binding on Indian courts
In India, a customary divorce is a recognised method of separation without involving the court if such a custom is recognised by marriage laws. However, it is only applicable to Hindus after the Hindu Marriage Act, 1955 came into force. To be legally valid, the person claiming the customary divorce must establish that such a custom was prevalent in their society or community.
Now, regarding the enforcement of foreign judgments in India, it is important to note that foreign court judgments are generally not binding on Indian courts. While India has executed bilateral treaties with several countries regarding the enforcement of judgments and decrees, these are limited to "reciprocating territories". These include the United Kingdom, Aden, Fiji, the Republic of Singapore, the Federation of Malaya, Trinidad and Tobago, New Zealand, the Cook Islands (including Niue), the Trust Territories of Western Samoa, Hong Kong, Papua and New Guinea, Bangladesh, and the United Arab Emirates. Judgments from these reciprocating territories are enforced as if they were decrees passed by Indian district courts, as outlined in Section 44A of the Code.
However, judgments from non-reciprocating territories must be enforced by filing a civil suit in an Indian court, and they are not directly enforceable. In such cases, the Indian court will decide based on its own laws and proceedings, and the foreign judgment will hold only evidentiary value. Additionally, a foreign judgment must be conclusive and not violate Indian law to be enforceable in India. If a judgment is pending an appeal in the foreign court, it is not deemed final or conclusive for enforcement in India.
Furthermore, Indian courts may refuse to enforce a foreign judgment if it conflicts with Indian law or a local judgment on the same issue. In such cases, the decision of the Indian court will prevail over the foreign judgment. Nevertheless, foreign judgments may have some persuasive value, and Indian courts may consider them, depending on the circumstances.
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Frequently asked questions
Customary divorce is a recognised method of separation without involving the court if such a custom is recognised by marriage laws.
Only Hindus can obtain a customary divorce in India, with certain conditions.
The conditions for obtaining a customary divorce in India are that the custom must be recognised by marriage laws and that the person seeking the divorce must prove that such a custom was prevalent in their community or caste.
