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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.Pardiwala, Vaibhavi D. Nanavati, JJ.
Bhartiben W/o Amitbhai Vitthalbhai And D/O Ravjibhai Kavani – Appellant
Versus
Amitbhai Vitthalbhai Sojitra – Defendant
R/First Appeal No. 1624 of 2020
Decided On : 06-09-2021
Family Court’s Act, 1984 – Section 7,8,19,7(B) - Section 29(2) of Hindu Marriage Act, 1955 - Section 29(2) and 13 - Evidence Act, 1872 – Section 3 - Matrimonial disputes - Customary deed of divorce - Marriage between appellant and opponent was solemnized as per Hindu rites and rituals, marriage was registered with Office of Registrar of Marriage - Over a period of time, matrimonial disputes arose between appellant and opponent - It appears that as reconciliation between parties was not possible, respective family members and relatives of parties decided to dissolve marriage by way of a customary deed of divorce - It appears from the materials on record that Panch of community thought fit to put an end to marriage by way of customary divorce - Parties amicably relegated themselves to customary divorce - Whether parties of present petition proves that there has custom in their society to take customary divorce.
Finding of the Court:
Hindu Marriage Act, which was enacted , recognized such customary divorce and now, after a lapse of 64 years, practice of granting customary divorce can never be adopted nor be followed and Courts should not approve any such customary divorce granted by few men from community or the relatives of the husband or wife - In event of approving such customary divorces, then implications would be large and we will be marching towards backward and that can never be accepted - Such customary divorces are affecting personal liberty and fundamental rights of women to adjudicate their issues before competent forum.
Result: Appeal dismissed
JUDGMENT :
Vaibhavi D. Nanavati, J.
1. This appeal under Section 19 of the Family Court’s Act, 1984 (for short ‘the Act, 1984) read with Section 29(2) of the Hindu Marriage Act, 1955 (for short ‘the Act, 1955) respectively, is at the instance of the original plaintiff - wife and is directed against the judgment and decree dated 18.02.2020 passed by the Family Court No.6, Ahmedabad in the Family Suit No.2543 of 2018 whereby the Family Court dismissed the Suit and declined to grant the declaration as prayed for in the plaint.
2. The facts giving rise to the present appeal may be summarized as under :
2.1 The marriage between the appellant (original plaintiff/wife) and the opponent (original defendant/husband) was solemnized on 09.12.2010 as per the Hindu rites and rituals at village Hadala, Taluka: Bagasara, District: Amreli. The marriage was registered with the Office of the Registrar of Marriage on 27.04.2011. Over a period of time, matrimonial disputes arose between the appellant and the opponent. It appears that as reconciliation between the parties was not possible, the respective family members and relatives of the parties decided to dissolve the marriage by way of a customary deed of divorce. It appears from the materials on record that the Panch of the community thought fit to put an end to the marriage by way of customary divorce. The parties amicably relegated themselves to customary divorce.
2.2 The appellant intends to get remarried and settle abroad. It is the case of the appellant that for the purpose of visa etc. the foreign embassy/authority would insist for a valid decree of divorce drawn by a competent Court. In other words, it is the case of the appellant that the foreign embassy/immigration authority may not look into the customary deed of divorce so as to understand the marital status of the parties in law.
2.3 In such circumstances referred to above, the appellant (original plaintiff) instituted the Family Suit No.2543 of 2018 under Sections 7 and 8 respectively of the Act, 1984 read with Section 29(2) of the Act, 1955 seeking a declaration that the marriage between the parties stood validly dissolved by way of the customary deed of divorce.
2.4. Having regard to the important issue relating to customary divorce being involved in the present appeal, we deem fit to reproduce the entire plaint as under:
| In the court of the Ld. Judge of the Family Court | |||
| Family Suit No....../2018 | |||
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| Plaintiff : | Bhartiben W/o. Amitbhai Vitthalbhai Sojitra and D/o. Ravjibhai Kavani, Age 33 years, Occupation: Household, Hindu by Religion, Presently residing at: A/25, Kailashdham Raw House, Nr. Shivpark Society, B/h. Gokul Bungalows, Nikol, Ahmedabad | ||
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| Versus | ||
| Defendant : | Amitbhai Vitthalbhai Sojitra, Age about 33 Years, Hindu by Religion, Occupation: Business, Residing at: 'Khodiyar Krupa', Shyam Vihar Society, Satyasai Heart Hospital Road, Rajkot | ||
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| AND ANOTHER ADDRESS: | ||
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| Raandalnagar, B/s. Anmol Society, Chittal Road, Baabraa-365421 | ||
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| Subject: | Suit for Declaration of Divorce as per Section-7B and 8 of the Family Court Act. | ||
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| I, the plaintiff, pray before the Hon'ble Court that: | |||
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| (1) | I reside with my parents at aforesaid address. | ||
| (2) | I, the plaintiff got married to the respondent as per Hindu wedding rituals and our community traditions at Hadala, Taluka – Bagasra, Dist. - Amreli on 09-12-2010. The marriage was registered vide Register Part No.02 and Serial No.2010/2011 at Hadala on 27-04-2011 and from then, the respondent and I became legally husband and wife. | ||
| (3) | We, the plaintiff and the respondent do not have any child out of our wedlock and I, the plaintiff am not pregnant by the respondent. | ||
| (4) | As we, the plaintiff and the respondent had extreme d | ||
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