Customary divorce under the Hindu Marriage Act must be substantiated with substantial evidence; mere claims are insufficient to annul marriages.

JUDGMENT

ANIL KSHETARPAL, J.

1. Through the present Appeal, the Appellant assails the correctness of a judgment and decree dated 07.06.2024 [hereinafter referred to as ‘Impugned Judgment’] passed by the Family Court while granting declaration to the effect that her alleged marriage with the Respondent No.1 was void as it was solemnized in contravention of Section 11 read with Section 5 (1) of Hindu Marriage Act, 1955 [hereinafter referred to as ‘ HMA ’].

2. The following two questions require adjudication in the present Appeal:

i. Whether the Appellant has successfully proved that ‘custom’ constitutes sufficient ground to take Panchayati Divorce among the ‘Jat’ community, thereby dissolving the marriage? and

ii. If the answer to the first question is in the affirmative, whether there was Panchyati Divorce amongst the Appellant and the Respondent No.1.

3. In order to comprehend the issues involved in the present case, the relevant facts in brief are required to be noticed.

4. The Appellant was previously married to Sh. Sanjay, whereas the Respondent No.1 was also previously married to some else. The Appellant claims that her marriage with Sh. Sanjay was dissolved by a customary divorce on 23.05.2009, whereas the Respondent No.1 claims that his marriage was dissolved by a Competent Court on 25.05.2009 and that he has a daughter from previous marriage. The Appellant and the Respondent No.1 entered a matrimonial alliance on 16.05.2010 and out of the wedlock, Mr. Daksh (son) was born on 15.03.2011.

5. Respondent No.1 filed a previous Petition under Section 13(1)(ia) of the HMA , which was later withdrawn since the parties settled the dispute and started co-habiting together. However, on 12.10.2012, the Appellant left her matrimonial home. Respondent No.1 claims knowledge of the fact that the Appellant was not previously divorced on 25.09.2013, whereas he filed the Petition on 10.10.2013.

6. The Appellant took a stand that the factum of her previous divorce was brought to the notice of the Respondent No.1 and his family and thereafter, they entered into the matrimonial alliance. The Appellant also stated that she had taken divorce from her previous husband on 23.05.2009 as per custom prevailing in their community. Apart from alleging cruelty at the hand of the Respondent No.1, the Appellant also submitted that the Respondent No.1 and his family members demanded dowry and wanted that the Appellant should take her share in the properties of her father.

7. Upon analysing the pleadings, the Family Court culled out the following issues:

i. Whether a customary divorce is permissible in the caste/community of the parties?

ii. If the answer to additional issue no. l is in affirmative, whether the respondent had obtained the customary divorce from her husband on 23.05.2009?

8. Respondent No.1 entered the witness box as PW-1, whereas the Appellant examined five witnesses including herself appearing as RW-1. The father of the Appellant, Sh. Ranbir Singh, appeared as RW-2 and the uncle of the Appellant, Sh. Balwan Singh, appeared as RW-3. The Appellant also examined Sh. Om Prakash and Sh. Rajbir as RW-4 and RW-5 respectively.

9. The Appellant has produced a photocopy of the alleged Deed of Divorce which has not been exhibited, however, has been marked as ‘X’. On its careful reading, it is evident that it is only an agreement/mutual settlement between the Appellant and her previous husband. This agreement is scribed by Sh. Ramchandar Dahiya, and signed by three witnesses, namely Sh. Hawa Singh, Sh. Mahender Singh and Sh. Rajpal. However, neither the scribe nor any of these witnesses have been examined in this matter.

10. While answering the Issue No.1, the Family Court held that the