Customs followed in a community must be proved to have acquired force of law, rules Bombay High Court

Mumbai: A person claiming to have obtained divorce under customs of his/her community, must prove that the said custom is legal and is followed by the community from a long period, ruled the Nagpur bench of the Bombay High Court on Wednesday.

A bench of Justices Sunil Shukre and Shriram Modak delivered the significant ruling while dismissing an appeal filed by a woman challenging orders of a trial court, which decreed divorce in favour of her husband, as she had not informed him about her first marriage.

The woman was already married and got divorced from her first marriage. She claimed to have obtained divorce from her first husband, as per the customs prevailing in the Sindhi community.

The woman then went on to perform her second marriage, but did not inform her second husband about her first marriage. Citing this, her second husband sought divorce from her claiming that she did not inform him all this. The trial court, having noted the same, granted divorce in favour of the husband.

Aggrieved by this, the woman petitioned the bench led by Justice Shukre. Having considered the same, the bench said, “In our country, severance of marital status is recognised only when it is done in the manner and before the authority prescribed by law.

This law requires that a Hindu marriage can be put to an end only through a decree obtained from a civil court in accordance with the provisions of the Hindu Marriage Act, 1955, which allows a divorce only through a decree obtained from a Civil court.” “Such a divorce is also permissible by following a custom prevailing in the community of the parties to the marriage by way of an exception.

But this custom must be proved to have acquired the force of law and that would mean that following of the custom or usage continuously and unanimously for a reasonably long period of time, the conditions subject to which the custom or usage is to be followed and the instances of following such a custom or usages must necessarily be proved by adducing relevant evidence,” the bench said.

The bench further said, “Therefore, the custom or usage must be proved to have acquired force of law by its consistent following by the members of the community in general since time memorial or at least for reasonably long period showing its wide spread acceptance by the members of that community and that it is not unreasonable or against public policy.”

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