The main legal point established in the judgment is that the existence of customary divorce in a community, as admitted by the parties and supported by previous decisions, should be considered in determining the validity of a divorce deed.

ORDER :

1. By way of present appeal under Section 96 of the Code of Civil Procedure, the appellant original plaintiff has challenged the legality and validity of judgment and order dated 14.10.2022 passed by the learned Principal Judge, Family Court, Mehsana in Family Suit No. 41 of 2022.

2. The brief background of present appeal is that the appellant herein has filed Family Suit No. 41 of 2022 before the learned Principal Judge, Family Court, Mehsana praying inter-alia for declaration that marriage between the defendant and the present appellant was dissolved by virtue of Divorce Deed dated 20.03.2015 through customary divorce which is a well recognized custom prevailing in the community where both the parties are belonging to ‘Kadva Patel’ community and as such, suit came to be filed.

2.1. The appellant got married to the defendant on 11.12.2009, but on account of stiff differences of opinion and lifestyle, dispute arose between them and the situation of irrevocable nature erupted which has resulted into irretrievable breakdown of marriage life between the appellant and the defendant. Despite the efforts made by the family members and the community members, marriage issue could not be resolved and as such, divorce deed on stamp paper came to be executed on 20.03.2015 and based upon such, Family Suit was filed. The learned Principal Judge, Family Court at Mehsana was pleased to dismiss the suit on the ground that the appellant has failed to prove customary divorce which is prevailing in the community and it is this judgment and order passed by the learned Principal Judge, Family Court, Mehsana is made the subject matter of present appeal before us.

3. On the basis of submissions made at the relevant point time, the co-ordinate Bench of this Court was pleased to issue notice for final disposal by order dated 11.01.2023 and pursuant to that, present first appeal has come up for consideration and both the learned advocates have jointly requested to take up the appeal in view of the situation prevailing between the parties. Hence, upon their request, we took up the appeal for its disposal.

4. Mr. Hardik H. Dave, learned advocate appearing for the appellant has contended that the learned Principal Judge, Family Court, Mehsana has committed a serious error in observing that the appellant has failed to prove customary divorce. In fact, according to learned advocate Mr. Dave, the entire suit was based upon the document which came to be executed by consent, signed by both the parties and their respective members and which has been executed in due deference to their custom which is prevailing. Both the appellant and the defendant are members of ‘Kadva Patel’ community wherein this custom is very much prevailing and though it was specifically pointed out before the learned Principal Judge, Family Court, Mehsana, an erroneous reason is assigned and as such, the order impugned deserves to be quashed.

4.1. Learned advocate Mr. Dave has further submitted that this custom which is prevailing is a recognized custom and it has been taken note of previously by this Court whenever such issue has erupted and to substantiate his contention, learned advocate Mr. Dave has drawn attention of this Court to page 34 (Annexure-D) which an order dated 10.12.2010 passed in First Appeal 4169 of 2010 wherein also the case was amongst Kadva Patel community and on similar situation, divorce deed was executed and based upon such, even the Division Bench of this Court was pleased to allow the appeal by declaring that the said custom is prevalent. An attention has been drawn to paragraph 11 by learned advocate Mr. Dave. Yet another order which has been placed on record for consideration is in the case of very same community, wherein the co-ordinate Bench was also pleased to allow First Appeal on the similar line by order dated 25.02.2022 which is annexed to appeal at Annexure-C on page 29 and by referring to this decision, learned advocate Mr. Dave has submitted that h