A customary divorce must be proven with strong evidence of antiquity, continuity, and certainty to be legally recognized, especially under the Hindu Marriage Act.

JUDGMENT :

P.Krishna Kumar, J.

The decree declaring the respondents herein as the wife and daughter of the appellant, is under challenge in this appeal.

2. The respondents filed a suit against the appellant seeking a declaration that they are his wife and daughter. The suit was initially decreed in favour of the respondents, but was reversed in appeal. When the matter was taken up in second appeal, this Court set aside the judgments and, after framing additional issues, remanded the case for disposal based on findings on those additional issues. The parties were also permitted to amend their pleadings and adduce further evidence. Meanwhile, with the establishment of the Family Court, Thalassery, the case was transferred to that court. By the judgment now under challenge, the Family Court allowed the claim of the respondents.

3. The brief facts necessary for the disposal of this case are as follows: The parties belong to the Hindu Thiyya community. The respondents contended that the first among them, Cheerootty, married the appellant, Dasan, on 23.10.1988, in accordance with the religious customs prevailing in their community, and that the second respondent was born in the wedlock on 30.11.1989. They alleged that Cheerootty and her daughter were later driven out of the matrimonial home by the appellant and his family members, and that he failed to maintain them. It was further stated that Cheerootty was married to one Balan when she was about 12 years old, and that the marriage was dissolved about six months later by a customary divorce, on observing the then prevalent formalities and rituals. A declaration was sought that the first respondent is the legally wedded wife of Dasan and that the second respondent is their daughter.

4. The appellant denied the above averments in his pleadings. He contended that there was no marriage between him and Cheerootty, that they had never lived together, and that the second respondent was not his child. He further argued that, since the marriage between Cheerootty and Balan was not dissolved in accordance with law, she could not claim to be his legally wedded wife. It was also pleaded that no such customary dissolution of marriage, as pleaded, existed in their community.

5. The evidence in this case consists of the oral testimony of PW1 to PW9, DW1 to DW6, RW7 and RW8, and Exts. A1 to A6, B1 to B18, and X1 and X2 series. After the remand, apart from recalling PW1, PW9 was examined. Ext.X6 was marked in evidence on the side of the first respondent. On the side of the appellant, RW7 and RW8, who are his present wife and child, were examined.

6. We have heard the learned counsel for the appellant. In spite of service of notice on the respondents, they remained absent.

7. In the earlier round of litigation, the trial court’s finding that the first respondent had married the appellant in accordance with their custom was upheld by the first appellate court. So also, it was held that the second respondent was born to the appellant in the first respondent. This court in the second appeal, while setting aside the judgment, did not interfere with the said findings, but remanded the case for adjudication on certain limited issues. The issues which were directed to be tried are:

(i) Whether a customary divorce as alleged was prevalent in the community to