Once the Court is called upon to declare that there exists a custom contrary to the codified Hindu Marriage Act, the burden of proof is heavy on the party asserting the custom, the Court stressed.
The Delhi High Court ruled that a customary divorce among Hindus can be recognised only when supported by strict and credible evidence, and not on the basis of assumptions or presumptions.
The Division Bench of Justices Anil Kshetarpal and Harish Vaidyanathan Shankar observed that merely presenting a few witnesses does not suffice to establish the existence of a custom permitting dissolution of marriage.
The Court further emphasised that when a party seeks the benefit of a custom that contradicts the provisions of the Hindu Marriage Act, the burden of proof lies squarely on that party, and such a custom must be demonstrated clearly and conclusively.
“It 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,” the Bench said.
The Court made these observations while dismissing an appeal filed by a woman challenging a family court order that had declared her second marriage void under the Hindu Marriage Act. The family court had concluded that she was still legally married to her first husband at the time she entered into her second marriage.
The woman argued that her first marriage had already been dissolved through a “panchayati divorce” allegedly practised in the Jat community. She claimed that only after this customary divorce was she married to her second husband, with whom she later had a son.
The High Court reviewed the provisions of the Hindu Marriage Act and noted that while Section 29(2) preserves customary rights that allow the dissolution of a Hindu marriage, such customs are an exception to the general law and must therefore be specifically pleaded and established with precision.
The Court found that the family court had incorrectly accepted the existence of the alleged custom. It clarified that the woman had not produced convincing evidence—such as historical documents, authoritative resolutions of the community, or prior judicial recognition—to demonstrate that such a long-standing custom was indeed in practice.
The sole document she submitted was a photocopy of a divorce deed, which the Court held to be nothing more than a private arrangement between the parties and insufficient to establish the existence of any legally recognised custom.
Accordingly, the Court dismissed the appeal and affirmed the family court’s decision declaring her second marriage void.
