{"id":1966,"date":"2025-12-02T11:16:38","date_gmt":"2025-12-02T05:46:38","guid":{"rendered":"https:\/\/www.shoneekapoor.com\/legal-news\/?p=1966"},"modified":"2025-12-02T10:54:12","modified_gmt":"2025-12-02T05:24:12","slug":"slams-woman-for-fake-divorce","status":"publish","type":"post","link":"https:\/\/www.shoneekapoor.com\/legal-news\/slams-woman-for-fake-divorce\/","title":{"rendered":"Wife’s Second Marriage Void. Customary Hindu Divorce Valid Only With Strong Proof: Delhi High Court Slams Woman For Fake Divorce"},"content":{"rendered":"\n

The Delhi High Court ruled that a Hindu marriage can be dissolved through custom only when the person proves the custom with strict, reliable evidence. A woman\u2019s second marriage was declared void after she failed to prove her alleged \u201cpanchayati divorce.\u201d<\/strong><\/h4>\n\n\n\n

Fake Divorce<\/em>: The Delhi High Court<\/strong> clearly held that a Hindu marriage<\/strong> cannot be treated as dissolved on the basis of an unverified \u201ccustomary divorce<\/strong>\u201d unless the party proves the custom with strict, solid and believable evidence<\/strong>.<\/p>\n\n\n\n

The Court said that customs which go against the Hindu Marriage Act<\/a> (HMA)<\/strong> cannot be accepted casually, and the burden of proof is very heavy on the person who claims such a custom.<\/p>\n\n\n\n

This ruling came from a Division Bench<\/strong> of Justice Anil Kshetarpal<\/strong> and Justice Harish Vaidyanathan Shankar<\/strong>, while hearing an appeal filed by a woman<\/strong> whose second marriage<\/strong> had been declared void<\/strong> by the Family Court<\/a><\/strong>. The Family Court had annulled her marriage because she was still legally married to her first husband at the time of the second marriage.<\/p>\n\n\n\n

The woman argued that she belonged to the Jat community and that her earlier marriage was already dissolved through a \u201cpanchayati divorce\u201d<\/strong> before she married the present husband. She also claimed that her second husband and his family were fully aware of this before the marriage. But the Court held that such claims must be backed with strong, historical and community-recognised evidence.<\/p>\n\n\n\n

The High Court emphasised that when anyone claims a custom that contradicts the written law, the court expects strict proof.<\/p>\n\n\n\n

The Court said:<\/p>\n\n\n\n

\n

\u201cIt is expected from the parties to prove the prevalence of customary divorce in their area\/community by producing judgments that recognise their custom and show past instances of customary divorce in the community. One of the ways to prove the custom is reference to any text or interpretation of Hindu law or usage for long period of time. Once the Court is called upon to declare that there exists a custom which is contrary to the codified law, the burden of proof is heavy upon the party asserting custom. Custom cannot be extended by analogy and it cannot be established by a priori method.\u201d<\/strong><\/p>\n<\/blockquote>\n\n\n\n

Court Rejects Photocopy Divorce Deed<\/strong><\/p>\n\n\n\n

The only document produced by the woman was a photocopy of a so-called divorce deed<\/strong>, marked as \u201cX<\/strong>\u201d. The Court found that it was simply a mutual settlement between her and her previous husband. No panchayat members, no scribe, and no witnesses were examined. The Court said that such a private agreement cannot amount to customary divorce under Hindu law.<\/strong><\/p>\n\n\n\n

The Court also noted that even the alleged panchayat witnesses (RW-4 and RW-5) did not attend any such panchayat meeting. The woman also failed to produce any record, text, community decision, or earlier court ruling to show that such divorces were actually recognised in the Jat community.<\/p>\n\n\n\n

Legal Provisions Highlighted<\/strong><\/p>\n\n\n\n

The Court analysed the Hindu Marriage Act extensively. It noted that Section 29(2) allows customary divorce, but only when the custom is clearly proven<\/strong>. Otherwise, Section 5(1) applies, which strictly says that a Hindu marriage is not valid if either party already has a living spouse<\/strong>.<\/p>\n\n\n\n

The Court explained that a marriage in violation of Section 5(1) is \u201cnull and void\u201d<\/strong> under Section 11.<\/p>\n\n\n\n

Because the woman failed to prove that she was actually divorced<\/strong>, the High Court upheld the Family Court\u2019s decision to declare the second marriage void.<\/p>\n\n\n\n

Supreme Court Precedents<\/strong><\/p>\n\n\n\n

The Court relied on several Supreme Court judgments and included the following precedent in its decision:<\/p>\n\n\n\n

From Bhimashya v. Janabi<\/em>:<\/strong><\/p>\n\n\n\n

\n

“A custom is a particular rule which has existed either actually or presumptively from time immemorial and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm. A custom to be valid must have four essential attributes. First, it must be immemorial; secondly, it must be reasonable; thirdly, it must have continued without interruption since its immemorial origin, and fourthly, it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect.”<\/strong><\/p>\n<\/blockquote>\n\n\n\n

From Gokal Chand v. Parvin Kumari<\/em>:<\/strong><\/p>\n\n\n\n

\n

“A custom, in order to be binding, must derive its force from the fact that by long usage it has obtained the force of law, but the English rule that ‘a custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary’ should not be strictly applied to Indian conditions.”<\/strong><\/p>\n<\/blockquote>\n\n\n\n

From Saraswathi Ammal v. Jagadambal<\/em>:<\/strong><\/p>\n\n\n\n

\n

\u201c…it is incumbent on a party setting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case. It is well settled that custom cannot be extended by analogy. It must be estabished inductively, not deductively and it cannot be established by a priori methods. Theory and custom are antitheses, custom cannot be a matter of mere theory but must always be a matter of fact and one custom cannot be deduced from another.<\/strong><\/p>\n\n\n\n

A community living in one particular district may have evolved a particular custom but from that it does not follow that the community living in another district is necessarily following the same-custom.\u201d<\/strong><\/p>\n<\/blockquote>\n\n\n\n

From Yamanaji H. Jadhav v. Nirmala<\/em>:<\/strong><\/p>\n\n\n\n

\n

“As per the Hindu Law administered by courts in India, divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom… this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law.”<\/strong><\/p>\n<\/blockquote>\n\n\n\n

Final Decision<\/strong><\/p>\n\n\n\n

After reviewing the entire evidence, the High Court held that:<\/p>\n\n\n\n