Exception Of Customary Divorce U/S 29(2) Hindu Marriage Act Not Attracted In Absence Of Declaration From Civil Court Regarding Its Validity: Calcutta High Court
The Calcutta High Court held that the exemption envisaged under Section 29(2) of the Hindu Marriage Act would not be obtained merely by receiving a customary divorce. Sabyasachi Bhattacharyya, the Single Bench of Justice, has made it clear that a deed of declaration must determine the validity of such a divorce. In order to be invoked by Section 29(2) of the 1955 Act, the party relying on a tradition must determine that the party's right to obtain the dissolution of a Hindu marriage was recognised by custom, it held. Significantly, in Subramani & Ors. v. M. Chandralekha, 2005 (9) SCC 407, the Supreme Court expounded the position. The Apex Court categorically observed that "the obligation to assert benefit from the prevalence of the customary right to divorce in a community must be explicitly advocated and defined by the individual who advocates such custom.
The Court observed that the competent civil courts had introduced, in each of the judgments cited by the applicant, a valid decree separating the respective divorce papers. No such decree was, however, obtained by the petitioner in the present case. In such a case, the Court held that, for the dissolution of marriage to be legitimate in the eye of the law, the spouses will have to resort to Section 13 of the Act, which punishes the dissolution of marriage only by decree of divorce.