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 held that a customary divorce among Hindus can be acknowledged only when backed by strict and convincing evidence, not by assumptions or presumptions.
The Division Bench of Justices Anil Kshetarpal and Harish Vaidyanathan Shankar noted that producing a handful of witnesses is not enough to prove the existence of a custom permitting the dissolution of marriage.
The Court further stressed that when a party seeks recognition of a custom that runs contrary to the provisions of the Hindu Marriage Act, the responsibility to prove such a custom rests heavily on that party, and it must be clearly and conclusively established.
“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 rejecting an appeal filed by a woman who had challenged a family court’s ruling that declared her second marriage void under the Hindu Marriage Act. The family court had held that she remained legally married to her first husband at the time she entered into her second marriage.
The woman maintained that her first marriage had already been dissolved through a “panchayati divorce” allegedly followed in the Jat community. She asserted that only after this customary divorce did she marry her second husband, with whom she later had a son.
The High Court examined the provisions of the Hindu Marriage Act and pointed out that although Section 29(2) protects customary rights permitting the dissolution of a Hindu marriage, such customs operate as an exception to the general law and must therefore be clearly pleaded and proven with accuracy.
The Court observed that the family court had wrongly accepted the existence of the alleged custom. It clarified that the woman had failed to present credible evidence—such as historical records, authoritative community resolutions, or previous judicial precedents—to show that such a long-standing customary practice truly existed.
The only evidence she produced was a photocopy of a divorce deed, which the Court held amounted to nothing more than a private settlement between the parties and did not prove the existence of any legally recognised custom.
Consequently, the Court dismissed the appeal and upheld the family court’s ruling declaring her second marriage void.
