A custom of divorce, being in derogation of the general rules of law, must be strictly proved by clear and unambiguous evidence.

JUDGMENT :

R.N. Misra, J. - The Plaintiff who happens to be the wife of the Defendant sued for maintenance past and future and claimed at the rate of Rs. 50/- a month. She also wanted the decree for maintenance to be made a charge on the properties of the Defendant mentioned in Schedule ?A? of the plaint. The Plaintiff has also a daughter born to her through the Defendant. In June, 1964 the Defendant is alleged to have re-married and such re-marriage is the basis for the Plaintiff?s claim for separate residence and maintenance.

2. The fact that the parties were man and wife following a legal marriage is not disputed. But the husband claimed that the marriage between the parties was dissolved on 21-4-1963. Ext. G is said to be the deed of divorce and is also dated 21-4-1963.

3. Admittedly, parties are Hindus and their marriage was performed in 1960 after the coming into force of the Hindu Marriage Act, 1956. The husband claims that there is custom of divorce prevalent in the community of the parties and in accordance with such custom the marriage between the Plaintiff and the Defendant had been annulled.

4. The learned trial judge found that there had been a valid divorce which was customary so far as the parties are concerned. He, therefore, found that the Plaintiff had no cause of action for the suit. It was accordingly dismissed.

5. On Plaintiff?s appeal, two questions were raised before the lower appellate, Court. The learned Additional District Judge posed the two questions in the following manner:-( 1) Whether the story of divorce as canvassed on behalf of the Defendant evidently evidenced by the document Ext. G is acceptable and (ii) whether there is a custom for such divorce in the caste of the parties? The learned appellate judge found that Ext. G was a valid and genuine document and parties had actually signed it. So, he answered that the allegation of divorce as evidenced by Ext. G was correct. Coming to the question of existence of custom of divorce the learned appellate Judge stated:

Section 29(2) of the Hindu Marriage Act, 1955 provides that custom shall affect the provisions of the Act. Obviously, this custom must be strictly proved by the persons seeking benefit on that account. A custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. It is further essential that it should be established to be so by clear and unambiguous evidence, for it is only by means of such evidence that the Courts can be assured of its existence, and of the fact that it possesses the conditions of antiquity, certainty on which alone legal title to recognition depends. Thus where the evidence shows that the custom alleged was not followed in numerous instances, the custom could not be held to be proved. In this view, two or three instances of divorce as proved in this case cannot establish custom, particularly to repeal the general principle of law.

Thus he negatived the plea of existence of custom of divorce. Accordingly, he reversed the decree of the trial Court. The husband - the Defendant in the list is the appellate against this reversing decision of the learned Additional District Judge.

6. The short question which I am called upon to determine is as to whether the custom of divorce in the community to which the parties belong has been established.

7. Section 4 of the Hindu Marriage Act provides:

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.

(b)xx xx xx

Certain sumptuous provisions have been made about annulment of marriage in the Act. Section 10 provides for judicial separation and Section 13 provides for divorce. The procedure for obtaining either of the reliefs is through Court. Section 29 however, saves certain customs. Sub-section (2) of that section provides:

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