Kerala High Court Clarifies Evidentiary Standards for Proving Customary Divorce

Kochi, India – In a significant ruling with far-reaching implications for family law, the Kerala High Court has affirmed that while customary divorce practices are legally recognized, they must be substantiated by clear and reliable proof, setting a high evidentiary bar for parties claiming dissolution of marriage through traditional rites. The Division Bench, comprising Justice Sathish Ninan and Justice P. Krishna Kumar, held that while hearsay evidence is permissible to prove a custom under specific conditions, the testimony must meet the stringent requirements laid out in the Indian Evidence Act, 1872.

The judgment in Kizhakkayi Dasan v. Kuniyil Cheerootty and Anr. (Mat. Appeal No. 630/2018) arose from a matrimonial dispute where the validity of a second marriage hinged on whether a prior marriage had been dissolved according to the customs of the Hindu Thiyya community. The Court's decision underscores the delicate balance between statutory law and deep-rooted community practices, ultimately holding that a failure to prove the custom renders the subsequent marriage void.

Factual Matrix and Procedural History

The legal battle began when Kuniyil Cheerootty (respondent 1) and her daughter (respondent 2) sought a declaration from the Family Court that they were the wife and daughter, respectively, of Kizhakkayi Dasan (the appellant). The appellant contested this claim on two primary grounds: he denied marrying the first respondent and fathering the second, and critically, he argued that the first respondent was already married to another man, Balan, and that this marriage was never legally dissolved.

In her defense, the first respondent contended that her prior marriage to Balan had been dissolved through customary divorce rites prevalent in her community before she married the appellant.

The case had a convoluted history. The Family Court initially decreed the suit in favor of the respondents. This decision was overturned in a first appeal, but the High Court, in a second appeal, remanded the case back to the Family Court for a fresh adjudication. During the remand, the High Court framed two crucial additional issues for determination:

• Whether the customary divorce practice in question is prevalent in the community to which the parties belong.
• Whether the first respondent's prior marriage was, in fact, dissolved through this customary divorce.

Following the remand, the Family Court once again answered both questions in the affirmative, leading to the present appeal before the High Court.

Legal Framework: Interplay of HMA and Evidence Act

The High Court's analysis centered on the interaction between the Hindu Marriage Act, 1955 (HMA) and the Indian Evidence Act, 1872. The bench first examined the HMA to confirm the space it carves out for customary practices.

The Court referred to Section 29(2) of the HMA, which acts as a saving clause, stipulating that nothing in the Act shall be deemed to affect any right recognized by custom to obtain the dissolution of a Hindu marriage. This provision explicitly preserves the validity of customary divorces, preventing the HMA's statutory divorce procedures from abrogating them.

Further, the Court looked at Section 3(a) of the HMA, which defines 'custom' and 'usage' as any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group, or family. The essential ingredients, as the court reiterated, are antiquity, continuity, and certainty.

Having established the legal validity of customary divorce, the core of the judgment then shifted to the standard of proof required. The bench emphasized that the burden of proving the existence and validity of a custom falls squarely on the party asserting it. This is where the provisions of the Indian Evidence Act become paramount.

The Court highlighted two key sections:

• Section 48 of the Evidence Act: This section allows for the admission of opinions on the existence of any general custom or right from persons who would be likely to have knowledge of it if it existed.
• Section 32(4) of the Evidence Act: This is a crucial exception to the general rule against hearsay evidence. It makes relevant the written or verbal statements of deceased persons regarding the existence of a public right, custom, or matter of public or general interest, provided the statement was made before any controversy on the matter arose.

The Court synthesized these provisions to observe:

“To prove a custom it is not necessary that a person should have personally witnessed instances establishing the custom, since even hearsay evidence is admissible regarding the statement or opinion of a person about the existence of a custom, provided, the conditions of Section 32 of the Evidence Act are satisfied.”

This observation affirms that knowledge of a custom can be passed down through generations and that testimony reflecting this inherited community knowledge can be admissible. However, the Court also established that the person providing such hearsay evidence must be credible and likely to possess such knowledge.

Failure of Evidence in the Instant Case

Applying this rigorous legal framework to the facts, the High Court found the first respondent's evidence to be woefully inadequate. Although she had pleaded in detail about the specific rituals performed for the customary divorce after the case was remanded, she failed to substantiate her claims with credible evidence.

The Court noted that neither the first respondent (PW1) nor her key witness (PW9) could provide any specific instances of such a customary divorce having taken place in their community. They were unable to name any other individuals who had undergone a similar process. This failure proved fatal to her case. The bench observed:

“Their testimony falls short of the requirements of Sections 32(4) and 48 of the Evidence Act, since they cannot be said to be persons likely to know of the existence of such a custom, nor did they state anything reflecting the opinions or statements of persons falling within the scope of Section 32(4).”

The Court dismissed the argument that a precedent recognizing customary marriage among Thiyyas of North Malabar ( Achu v. Chandkurhan , 1958 KLT 916) could be extrapolated to prove the existence of customary divorce among Thiyyas in a different region (Thalassery Taluk). This highlights the principle that customs can be highly localized and the proof of one custom does not automatically establish another, even within the same broader community.

Ultimately, the Court concluded:

“In the absence of clear and reliable proof regarding antiquity, continuity, and reasonable certainty of the custom claimed, the alleged ceremony, if at all held, cannot be accepted as sufficient proof of custom within the meaning of Section 29(2) of the Act.”

Consequences of the Ruling

The failure to prove the dissolution of the first marriage had a cascading effect on the parties' rights and status.

• Validity of the Second Marriage: Since the first marriage was not proven to be dissolved, the Court held that the first respondent had a living spouse at the time of her purported marriage to the appellant. Consequently, this second marriage was declared void under Section 11 read with Section 5(i) of the HMA, which prohibits bigamy.

• Legitimacy of the Child: Despite declaring the marriage void, the Court protected the rights of the second respondent (the daughter). Citing Section 16 of the HMA, the bench affirmed that any child begotten or conceived before a decree of nullity is passed is deemed to be legitimate. Therefore, the declaration of the marriage as void did not affect the legitimacy of the daughter.

• Maintenance: In a connected proceeding (R.P.(FC)No.126/2020), the appellant had challenged an order granting maintenance to the first respondent. Since the Court had now declared that she was not the appellant's legally wedded wife, the order for maintenance was set aside. However, the Court clarified that any amounts already paid would be treated as pendente lite maintenance. Furthermore, the bench preserved the first respondent's right to apply for permanent alimony before the Family Court, an option available even to a woman in a void marriage under certain interpretations of matrimonial law.

The High Court allowed the appeal in part, setting aside the Family Court's declaration of a valid marriage, while upholding the legitimacy of the child. The maintenance order in favor of the first respondent was also set aside, with the aforementioned caveats.

This judgment serves as a critical reminder to legal practitioners that while the law respects custom, it does not accept its existence on mere assertion. Proving a custom requires a high standard of evidence that demonstrates its antiquity, continuity, and acceptance as a binding rule within the community.