Source: Supreme Court

Why in News?

Justice Surya Kant and Justice Dipankar Datta observed that customary divorce can be granted by a civil court under the power conferred by Section 29(2) of the Hindu Marriage Act, 1955 (HMA).

• The Supreme Court gave this observation in the case of Sanjana Kumari v. Vijay Kumar.

What is the Background of Sanjana Kumari v. Vijay Kumar Case?

• The appellant wife and respondent husband solemnized the marriage in 2011.
• The respondent claims that a “Customary Divorce Deed” was executed between the parties in 2014 which is duly signed by them, parents of the appellant, father of the respondent, and the members of the Gram Panchayat.
• The respondent, thereafter, entered into a second marriage in 2018.
• The appellant then filed a complaint against the respondent under Domestic Violence Act, 2005 which was opposed by the respondent through an application on the basis of divorce deed.
• The Judicial Magistrate turned down the said application and further granted interim maintenance of Rs.3,000/- per month to the appellant.
• The High Court then held in favor of husband by turning down the order of judicial magistrate.
• Hence, wife filed an appeal before the SC questioning the validity of customary divorce deed.
• The SC partly allowed the appeal and remitted the case to HC by stating that the validity of customary deed shall be investigated by the competent authority.
• The court also restored the maintenance order given by the judicial magistrate.

What were the Court’s Observations?

• SC observed that the issue whether the parties are governed by the custom under which a divorce can be obtained without recourse to divorce under HMA, is essentially a question of fact which is required to be specifically pleaded and proved by way of cogent evidence.
  • Such a question can ordinarily be adjudicated only by a civil court.
• The court also said that customary divorce deed is obligated to establish that such custom is allowed by a practice that has been uniformly observed for a long time and such custom is not unreasonable or opposed to public policy and thus the validity of such customary divorce is duly protected by the exception carved out in Section 29(2) of HMA.

What is Section 29(2) of HMA?

• Legal Framework:
  • Section 29 (2) of HMA states that, nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.

• Application:

• • It is the requirement for the marriage to be solemnized in accordance with the rituals and ceremonies recognized by the customs and traditions of the parties involved.
  • This emphasizes the significance of adherence to religious practices and cultural norms in the solemnization of Hindu marriages.
  • It underscores the importance of upholding the cultural diversity within the Hindu community and recognizing the validity of marriages conducted in different ways.

What are Related Landmark Cases?

• Yamanaji H. Jadhav v. Nirmala, (2002):
  • The SC held that, 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 if not proved, will be a practice opposed to public policy.
• Subramani v. M. Chandralekha, (2005):
  • In this case also the SC observed that it is well established by a long chain of authorities that prevalence of customary divorce in the community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom.
• Swapnanjali Sandeep Patil v. Sandeep Ananda Patil, (2020):
  • The SC held that divorce through customary deed can be granted but it depends upon facts of the case.