Customary Divorce Must Be Proven With Clear Evidence of Antiquity and Continuity: Kerala High Court

In a significant ruling clarifying the standards for proving customary practices under the Hindu Marriage Act, the High Court of Kerala recently addressed the legal requirements for establishing a customary divorce. The court underscored that such customs, being exceptions to the general law, must be demonstrated through "rational and solid" evidence of antiquity and uniformity.

Case Background

The dispute arose between Kizhakkayi Dasan (the appellant) and Kuniyil Cheerootty (the respondent), who sought a declaration that she was his legally wedded wife and their child was his daughter. The respondent claimed that her previous marriage to one Balan had been dissolved through a customary divorce prevalent among the Thiyya community of North Malabar. The appellant vehemently disputed the existence of such a marriage, arguing that the alleged customary divorce was never performed or legally recognized, rendering the respondent’s subsequent marriage to him invalid.

The Family Court, Thalassery, initially ruled in favor of the respondents, declaring the marriage valid and ordering monthly maintenance. The case reached the High Court after multiple remands, focusing on whether a legally recognized customary divorce could exist in the community.

Arguments Presented

The respondent contended that her marriage to Balan concluded via traditional rituals involving a Nilavilakku (a lamp) and specific ceremonial acts. She asserted that these practices were consistent and accepted within her community.

Conversely, the appellant argued that there was no valid dissolution of the respondent’s previous marriage. He maintained that divorce among Hindu Thiyyas could only be obtained through a court of law, rejecting the existence of the purported customs. He contended that since the respondent’s first marriage remained subsisting, her marriage to him was void under Section 11 of the Hindu Marriage Act.

Legal Analysis

The High Court examined Sections 4 and 29(2) of the Hindu Marriage Act. While Section 29(2) preserves the right to customary divorce, the court emphasized that such a custom must possess the essential attributes of antiquity, continuity, and certainty. Referring to Bhimashya and Others v. Janabi , the court highlighted that a custom must be "immemorial" and "reasonable."

The bench noted that the evidence provided by the respondent—consisting of personal testimony and recollections—failed to demonstrate a broader community practice. Citing the Supreme Court’s stance in * Yamanaji H. Jadhav v. Nirmala *, the court reiterated that where a custom is invoked to bypass statutory law, the party propounding it carries a heavy burden to establish it through "clear and unambiguous evidence." The respondent failed to cite a single instance of such a divorce in her community outside of her own case, rendering the proof "scanty" and insufficient.

Key Observations

• "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."
• "A customary divorce is an exception to the general law and can be accepted only with utmost care, caution, and reliable evidence."
• "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."

Court's Decision

The High Court set aside the Family Court’s judgment regarding the validity of the marriage, declaring it void due to the subsistence of the respondent's prior marriage. However, the court protected the legitimacy of the child under Section 16 of the Hindu Marriage Act.

Furthermore, while the court set aside the maintenance order issued under Section 125 of the CrPC —citing the lack of a legal "wife" status—it noted that the respondent may seek permanent alimony or maintenance pendente lite under the newly interpreted provisions of the Hindu Marriage Act, following the Supreme Court's latest guidance in Sukhdev Singh v. Sukhbir Kaur . The matter serves as a firm reminder that local customs, to obtain the force of law, must transcend anecdotal belief and meet the rigorous standards of evidentiary support required by the courts.