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Divorce recognized by custom in Hindu law can be upheld by the Court if it is not opposed to the public policy: High Court of Delhi

A Hindu marriage may now be dissolved either under section 13 of the Act or under any special enactment or in accordance with any custom applicable to the parties. This was held in the case of Prahlad Singh v. Seema, [MAT.APP. (F.C.) 45/2021 & CM APPLs], 10784-85/2021 by Hon’ble Justice Vipin Sanghi in the High Court of Delhi.

The marriage of the appellant Mr. Prahlad Singh with the respondent, Ms. Seema was solemnized, as per Hindu rites and customs, and they have a daughter from this wedlock. The petitioner filed a complaint in the family court that he had been duped into the marriage by the respondent. He claimed that the respondent had concealed her previous marriage to one Mr. Praveen Kumar, with whom her relationship had deteriorated to such an extent that both of them had registered FIRs against the other. The appellant further claimed that the respondent, before getting married to him, had not obtained a divorce from the said Mr. Praveen Kumar, which implied that their marriage was void ab initio.

The respondent submitted that she had never hidden her previous marriage from the respondent and that he knew of the same. She claimed that he had helped her obtain a customary divorce from Mr. Praveen Kumar; and that (ii) she had not committed any act of domestic violence against the family of the appellant and rather, it was her who had been subjected to the same. She even underwent a medical examination at the Lal Bahadur Shastri Hospital after one such violent incident, which she could prove by way of the MLC issued, and was eventually compelled to file a complaint against the appellant’s father under Section 354 IPC after he had tried to outrage her modesty.

The counsel for the appellant, at the outset, submits that at the time of his marriage to the respondent, her marriage to Praveen Kumar was still subsisting, thereby rendering her marriage to the appellant a nullity. He further avers that the respondent had neither proved that she belongs to the Jaat community nor led any evidence to prove the custom of obtaining divorces without approaching the Court He, therefore, contends that the marriage of the respondent could be dissolved by the grant of decree of divorce under the Hindu Marriage Act, and, therefore, the respondent could not claim that her marriage with Mr. Pravin Kumar stood dissolved through the deed of dissolution

The court noted that Dissolution of marriage by divorce was unknown to Hindu law. However, in certain communities divorce was recognized by custom and the courts upheld such custom when it was not opposed to public policy. It was in this background that the social customs and usages which have on account of continuous and uniform observance over the years acquired force of law amongst certain communities have been expressly saved by Section 29(2) of the Hindu Marriage Act. A Hindu marriage may now be dissolved either under section 13 of the Act or under any special enactment or in accordance with any custom applicable to the parties. Therefore the petition was dismissed.

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