Divorce
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This case analysis is written by Shriyya Sehgal, a second year student of BBA LLB, Symbiosis Law School, Noida. 

Introduction

Maintenance generally refers to financial assistance given to either of the litigating parties on an application made by them and only through an order passed by the court having jurisdiction to do so. Execution of a decree in this regard is also essential. A specific definition of maintenance has been given under Section 3(b) of the Hindu Adoption & Maintenance Act, 1956. There are four different types of provisions regarding maintenance, that is, provisions under Code of Criminal Procedure, 1973; the Hindu Marriage Act, 1955; the Hindu Adoption & Maintenance Act, 1956; and the Protection of Women from the Domestic Violence Act, 2005. 

In the case of Kewal Kumar v. Pawna Devionly the provisions under the Code of Criminal Procedure, 1973 and the Hindu Marriage Act, 1955. Section 125 of the CRPC gives that if any individual who has adequate methods, ignores or will not keep up his better half, unfit to keep up herself then a Magistrate of the five star will request such individual to offer a month to month leeway for the upkeep of his significant endless supply of such disregard or refusal. In this, ‘spouse’ incorporates a lady who has been separated by, or has acquired a separation from her better half and has not remarried. Likewise, under the Hindu Marriage Act, 1955, a request for upkeep might be made by the Court. Initially, for upkeep pendente light, that is, between time or impermanent support and costs of the procedures under Section 24, and also, for perpetual support and provision under Section 25. The current appeal request of upkeep was under test under the arrangements of Section 29(2) of the Hindu Marriage Act, 1955. Hindu Adoption and Maintenance Act, 1956, Section 3(b) peruses as follows: “support remember for all cases, arrangements for food, apparel, home, schooling and clinical participation and treatment; on account of an unmarried girl, additionally the sensible costs of an episode to her marriage.”

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Background

In the case at hand, the Petitioner (husband) married the Respondent on 4th December 1998. According to the husband, the wife was pregnant at the time of marriage and therefore, the parties agreed to get the marriage dissolved by a customary divorce. A Fharkhati Nama in this regard was executed on 25th October 1999. Later the wife filed a petition under Section 125 of the Code of Criminal Procedure seeking maintenance. However, the wife’s petition was dismissed by the Judicial Magistrate of First Class, Dharamshala by an order dated 18th December 2000. The aforementioned petition was dismissed on the grounds that the marriage was dissolved by the mutual consent of the parties and the learned Magistrate found that the Respondent was living in adultery. Moreover, the learned Sessions Judge also relied upon the divorce entered into mutually between the parties.

Under this petition, the Petitioner has challenged the order dated 26 August 2003 passed by the learned Senior Sub Judge at Dharamshala whereby he granted interim maintenance of Rs. 500/- per month to the Respondent with effect from April 1999 as well as directed the Petitioner to pay litigation expenses of Rs. 1,000/- to his wife, the Respondent.

During the course of the proceedings the Petitioner also filed an application and placed on record the judgment of the Civil Judge of Junior Division-2, Dharamshala dated 15.3.2005. The aforementioned suit was filed by the wife for seeking an assertion that there is a subsisting marriage between the parties, however, the same was dismissed. This suit was dismissed on the ground that the marriage between the parties has been dissolved by a customary divorce in terms of the Fharkhati Nama.

Thus, the chronological order of the abovementioned events is as follows:

  • 04.12.1998: The Petitioner and the Respondent married each other.
  • 25.02.1999: A Fharkhati Nama was executed as parties agreed to get the marriage dissolved by a customary divorce.
  • 18.12.2000: The Respondent (wife) filed a petition under Section 125 of the Code of Criminal Procedure seeking maintenance, however, the wife’s petition was dismissed.
  • 26.08.2003: The judge granted interim maintenance of Rs. 500/- per month to the Respondent with effect from April 1999 as well as directed the Petitioner to pay litigation expenses of Rs. 1,000/- to the Respondent.
  • 15.3.2005. A suit was filed by the wife for seeking an assertion that there is a subsisting marriage between the parties, however, the same was dismissed.
  • 30.12.2010: The given petition was decided on this date.

Thus, the main issue is whether the Senior Sub Judge had any jurisdiction to award compensation to the Respondent when the marriage between the parties stood dissolved by mutual consent according to customary law.  

Analysis

In the case at hand, Section 4 as well as Sub-Section 2 of Section 29 of the Hindu Marriage Act, 1955 was in question. The following were the contentions from the side of the Petitioner (husband) and the Respondent (wife):

Contentions of the Petitioner

The learned Counsel for the husband, Shri Janesh Gupta, contended that the marriage between the parties was dissolved by mutual consent. Moreover, taking into consideration the findings recorded in criminal proceedings, the wife was pregnant at the time of the marriage, therefore, no maintenance shall be awarded to the wife. It was further contended that the suit of the wife seeking a declaration that there is a subsisting marriage between the parties was dismissed and no appeal against the same was filed. Thus, since the marriage was considered to be dissolved the main petition filed by the wife for the restoration of conjugal rights itself was not maintainable.

Contentions of the Respondent

The learned Counsel for the wife, Shri Om Prakash, contended that taking into consideration the Section 4 of the Hindu Marriage Act, 1955 the provisions of the Act shall override any custom. Therefore, there was not any customary divorce and the orders of the Courts with respect to the dissolution of the marriage between parties by way of customary divorce were without jurisdiction.

Section 4 of the Hindu Marriage Act, 1955 provides an overriding effect on the Act. A bare reading of Section 4 shows that the provisions of the Act will override in custom in force before the promulgation of the Act. This Section states the overriding effect of the Act provides that all texts, rules or interpretation of Hindu law and all customs or usages as part of that law in force before the commencement of the Act shall cease to affect any matter, for which provision is made in the Act. It further provides that every other law in force immediately before the commencement of the Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in the Act. 

Therefore, unless in any other enactment there is a provision which abrogates or amends those of the aforementioned Act, or repeals it expressly or by necessary implication, the provisions of the Act alone will be applicable to matters dealt with or covered by the same.

In any case, there is a reserve funds area in the demonstration itself. The expressions of Section 4 obviously show that the arrangements of this Section are liable to communicate arrangements contained somewhere else in the Act. Area 29(2) explicitly saves the rights perceived by custom or thought by any uncommon order to get the disintegration of Hindu marriage. A plain reading of Section 29(2) of the Hindu Marriage Act, provides that a marriage may still be dissolved in accordance with a custom governing the parties or under any other law providing for the same. Also, the validity of any custom recognising the right to dissolve a marriage is expressly saved by this sub-section. 

Thus, it would not be necessary for the parties in any such case to go to court to obtain a divorce on grounds recognised by custom and it would be open to dissolve the marriage out of court in accordance with such custom.  Thus, in view of the special provision in the Hindu Marriage Act, it is clear that if there is a custom recognising divorce amongst Hindus, the same shall be protected even after the commencement of Hindu Marriage Act. Hindu Marriage Act, 1955, Section 24 provides for interim maintenance and expenses of the proceedings. Section 25of the Act  provides for permanent maintenance and alimony.

It is, therefore, obvious that divorce by custom is saved. It is well known that under ancient Hindu law there was no right of divorce but the dissolution of marriage was recognised under various customary laws. If such custom is established then the same will prevail and will be saved under the provisions of Section 29(2). In the case of Yamanji H. Jadhav v. Nirmala, the Supreme Court of India held that the customary divorce is valid only if it is held to be proved.

In the case at hand, the wife herself had filed a civil suit in the Court of the Civil Judge wherein she had specifically raised a plea that her marriage is still subsisting and not being dissolved under any custom. Issues 5 and 5(A) in the said suit were as follows:

“5. Whether the marriage of Plaintiff and Defendant No. 1 has been dissolved under the custom in accordance with ‘Farkhati Nama’ dated 25th February 1999? 

5(A). Whether the parties are governed by custom of Farkhati Nama, if so, what is that custom?”

These issues were decided in favour of the husband and against the wife. The Court concluded that there is an existence of the custom. Also, the learned trial Court held that such custom is valid and is saved by Section 29(2) of the Act. Moreover, this judgment has not been challenged by the wife though it was delivered as far back on 15.3.2005.

Conclusion

The High Court of Himachal Pradesh, therefore, allowed the petition filed by the husband. The order of the learned Court below (Senior Sub Judge at Dharamshala) granting pendente lite maintenance to the Respondent was set-aside. By the Judgment of the Court of the Civil Judge, it was held that there was no marriage remaining alive between the gatherings. On the off chance that there is no marriage staying alive between the gatherings the request under Section 9 for the reclamation of intimate rights itself isn’t viable and as such the request for award of support pendente light couldn’t likewise have been passed. Hindu Marriage Act, 1955, Section 4 of the Act peruses as follows: Overriding impact of Act.Save as in any case explicitly gave in this Act,- (a) any content principle or understanding of Hindu law or any custom or use as a component of that law in power preceding the beginning of this Act will stop to have impact regarding any issue for which arrangement is made in this Act; (b) some other law in power preceding the initiation of this Act will stop to have impact to the extent that it is conflicting with any of the arrangements contained in this Act.”

Therefore, it can be concluded that Section 29(2) of the Act expressly saves the rights recognised by custom or conferred by any special enactment to obtain the dissolution of Hindu marriage thereby saving the divorce by custom. Although, under ancient Hindu law there was no right of divorce but the dissolution of marriage was recognised under various customary laws. If such custom is established then the same would prevail and would be safeguarded under the provisions of Section 29(2) of the Act.

References 

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