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 has ruled that a customary divorce among Hindus can be recognised only when supported by strict and convincing evidence, and not on presumptions.
A Division Bench comprising Justices Anil Kshetarpal and Harish Vaidyanathan Shankar observed that a custom allowing dissolution of marriage cannot be established simply by producing a few witnesses.
The Court emphasised that when a party seeks recognition of a custom that contradicts the provisions of the Hindu Marriage Act, the burden of proof lies heavily on that party to firmly establish the existence of such custom.
“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 remarks while dismissing an appeal filed by a woman challenging a family court’s decision that 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 married her current spouse.
The woman argued that her first marriage had already ended through a “panchayati divorce” said to be practiced in the Jat community. She claimed that only after this customary divorce did she enter into her second marriage, with whom she later had a son.
The High Court reviewed the provisions of the Hindu Marriage Act and highlighted that although Section 29(2) safeguards customary rights that allow dissolution of a Hindu marriage, such customs are an exception to the general law and must therefore be specifically pleaded and proved with precision.
While the family court had initially acknowledged the existence of the claimed custom, the High Court held that this conclusion was incorrect. It noted that the woman had not produced reliable material—such as historical documentation, recognised community decisions, or prior judicial rulings—to establish that such a long-standing customary practice actually existed.
The only evidence she submitted was a photocopy of a divorce deed, which the Court held was merely a private arrangement between the parties and did not establish the existence of a legally recognised custom.
Accordingly, the Court dismissed the appeal and affirmed the family court’s decision declaring her second marriage void.