Customary laws: India
This is a collection of articles archived for the excellence of their content.
SC: Customary divorce not a licence to remarry
Dhananjay Mahapatra, March 8, 2019: The Times of India
The Supreme Court said marrying a second time on the basis of a “customary divorce” from the first wife will render the second marriage void as the law stipulates that a man and woman are permitted to tie the nuptial knot only if they do not have a living spouse.
This decision came in the case of an inter-caste marriage solemnised in 2010. The marriage developed strains allegedly because of the husband’s drunken habits and matrimonial torture inflicted on the wife. While leaving for her parental home with her belongings, she discovered a marriage dissolution deed of her husband from his first wife and later moved a Pune court seeking her marriage to be declared void.
The second wife alleged that the marriage was solemnised by fraud as the man declared himself a bachelor in the marriage registration document under the Special Marriage Act. She said there was no divorce decree from the first wife, a fact concealed from her, and he had a spouse at the time of marriage.
The man argued that he had married a second time under pressure as the woman threatened to commit suicide if he said no. He said that there was a customary divorce between him and his first wife prior to his second marriage and hence the wedding was valid. The Pune court had dismissed the woman’s petition and the Bombay HC too refused to give relief.
A customary divorce is a recognised method of separation without involving the court if such a custom is recognised by marriage laws.
A bench of Justices L Nageswara Rao and M R Shah set aside orders of the trial court and the HC and declared the second marriage null and void. It said under Section 4 of the Special Marriage Act, at the time of marriage neither party should have a living spouse. The bench also ruled that no time limit can be set for filing a petition for annulment of marriage and that it could be filed as and when a party to the marriage discovers that the other had a living spouse.
Writing the judgement, Justice Shah said, “The husband was required to prove that such customary divorce was permissible in his caste or community. In the absence of any such issue or any evidence, the courts were not justified in observing that there was customary divorce between the man and his first wife.”
The apex court bench also ruled that no time limit can be set for filing a petition for annulment of marriage and that it could be filed as and when a party to the marriage discovers that the other had a living spouse