The main legal point established in the judgment is the recognition of customary divorce by the community and the discretion of the court in granting a declaration of status under section 34 of the Specific Relief Act.

JUDGMENT :

1. As per the record, the party respondent herein as a plaintiff, had filed a suit under section 34 of the Specific Relief Act, 1963 for declaration of divorce on the basis of customary divorce deed dated 23.07.2017. The suit came to be rejected on 05.12.2018 by the Principal Senior Civil Judge, Khambhat. Aggrieved by the same judgment and order, the plaintiff filed Regular Civil Appeal No.73 of 2020 before the Additional District Judge, Khambhat, which also came to be dismissed on 18.03.2021 by 6th Additional District Judge, Khambhat.

2. Aggrieved by both the orders, the defendant of the suit is before this Court as an appellant in Second Appeal contending that both the courts have failed to consider the fact that the matrimonial ties between the parties are governed by the customs of the community, which has taken a force of law because of long usage, and the said fact of prevailing customs would be proved by the evidence of the parties.

3. Advocate Mr. Muhammadyusuf M.Kharadi for the appellant submitted that since the substantial question of law arose on the decision of both the courts, therefore, the appellant being a defendant of the suit was constrained to file the present Second Appeal, since both the courts have not rightly appreciated the provisions of law, and have denied the relief of declaration of status of the parties as being divorced. Mr. Kharadi contended that customary divorce is permissible in the caste of both the parties. Mr. Kharadi further submitted that community of both the parties, being as schedule caste approved by the Constitution of India, itself proves that the parties would not be governed by the Hindu Marriage Act, 1955 but would be saved by the provision of section 29 of the Hindu Marriage Act.

3.1 Advocate Mr. Kharadi submitted that the fact that both the parties jointly had not approached the Court would itself proves the fact that there has been a denial, and arraigning the appellant as defendant before the trial Court in the suit itself proves that she is interested to deny the legal status of the plaintiff’s suit. Mr. Kharadi submitted that the parties were not required to prove custom of divorce and its long usage, since the parties being of schedule caste such custom is recognized in their caste.

3.2 Advocate Mr. Kharadi submitted that the Court was required to only consider the factum of denial on the date of the suit, where the party defendant was interested to deny the plaintiff suit. Mr. Kharadi submitted that the learned trial Court Judge has referred to the dispute between the parties as falling under the cause of “Jactitation of Marriage”, and, thus has observed that though such kind of Civil Suits for negative declaration would be maintainable under section 34 of the Specific Relief Act rejected the suit considering no denial of the divorce. Mr. Kharadi further submitted that the learned trial Court was required, to consider the document and to give the relief of declaration appreciating the customary divorce, which has been recognized by the caste and community of both the parties, apprised with the fact that there was nonobservance of the condition of divorce.

4. Advocate Mr. Bhunesh C.Rupera submitted that the respondent had through out agitated before both the Courts about the customary divorce prevalent in the community, while the trial Court raised the question against the suit and observed that it was only on settlement the document was executed and denied the relief on the ground that there is no denial of divorce status by the defendant, and on that observation has concluded that the parties could have taken resort under section 13B of the Hindu Marriage Act, 1955 for divorce by mutual consent.

4.1 Advocate Mr. Rupera submitted that once the parties have taken customary divorce, and such documents would be executed only on the basis of consent of both the parties by way of intervention of the community members, and such is the recognized mode of divorce in the commu