The article is written by Clara D’costa. This article discusses the case of Yamanaji H. Jadhav vs. Nirmala AIR (2012) in detail, including the issues raised, arguments of the parties, judgement and the rationale behind the judgement. The article also speaks about the legal provisions for granting customary divorce and how the courts interpret the same. This article talks about the valid requisites of a customary divorce, and the legal procedures to obtain a customary divorce under Hindu law.

Introduction

The Hindu Law places marriage in a higher regard and considers it to be a holy sacrament. Divorce is the end of a marriage, according to the Hindu Marriage Act, 1955. It is stated that for the interest of society, the sacrament of marriage shall be protected by certain provisions so as to maintain the seriousness of the marital relation. Divorce is only allowed in serious cases where there are no other options. The provisions related to divorce under Hindu Law were first established in the Hindu Marriage Act, 1955. 

There are a few rules about when a spouse can get a divorce or appeal for dissolution of marriage in a court of law that are included in the Hindu Marriage Act, 1955. In the case of Yamanaji H. Jadhav v. Nirmala (2002), the husband seeking a divorce from his wife is accused of physically torturing his wife and fraudulently taking her signature on the divorce deed.

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However, this case travelled from the doors of the Trial Court to the High Court to finally the Supreme Court, wherein it was sent back to the Trial Court. The main legal aspect of this case is the “customary divorce” that the Trial Court granted without an enquiry to check its validity and thus, the Supreme Court called for a fresh start to the case. Let us have a look into what went down in this case.

Details of the case

  • Case name: Yamanaji H. Jadhav v. Nirmala
  • Bench: Justice N. Santosh Hegde and Justice Doraiswamy Raju 
  • Type of case: Civil appeal 
  • Appeal no.: 4969 of 1998 in the Supreme Court of India.
  • Date of the judgement: 1st February, 2002
  • Equivalent Citations: AIR 2002 SC 971, 2002 (2) SCC 637, 2002 AIR SCW 674  
  • Name of the parties:

Background of Yamanaji H. Jadhav vs. Nirmala 

  • The legal matter of Yamanaji H. Jadhav v. Nirmala, as documented in AIR 2002 SC 971, involves a dispute between husband and wife that was brought before the Supreme Court in the year 1998. Yamanaji H. Jadhav, the appellant, and Nirmala, the respondent, were the key individuals involved in this legal battle. 
  • Customs have been a significant part of Indian law, thereby aiding this judgement to determine the validity of divorce under the customary divorce of the respective community. Yamanaji H. Jadhav, the appellant, brought this case before the Supreme Court, seeking justice and a fair resolution to the matter at hand. 
  • The Trial Court granted the judgement in the husband’s favour but upon appeal, the High Court reversed the decision of the Trial Court, offering sympathy and judgement in favour of the plaintiff, i.e., the wife.

Facts of Yamanaji H. Jadhav vs. Nirmala

  • The respondent-plaintiff in the Trial Court stated that their marriage was solemnised on 26th May 1978, following which they had been living together as husband and wife. The respondent-plaintiff stated that she was continuously mistreated by her husband, which took a toll on her physical and mental health.
  • This resulted in her being admitted to the hospital for treatment against the physical and mental trauma. It was stated by the respondent-plaintiff that, at one stage, unable to bear the sufferings from the respondent’s end, the appellant had attempted suicide but was saved by her neighbours.
  • The appellant-defendant, Yamanaji H. Jadhav, had then filed for a matrimonial suit in the year 1979 for divorce, which thereafter came to be compromised. However, their relationship worsened as Yamanaji H. Jadhav consistently demanded a divorce from his wife, Nirmala. She was ultimately sent to her maternal home, because of which she was forced to file a petition for maintenance. Her father then made an application under Section 97 of the Code of Criminal Procedure, 1973 and they claimed that the respondent had forcibly confined her.
  • The respondent was then under threat and coercion made to sign a document without her knowledge of the document being a divorce deed at the office of the Sub-Registrar. Further, when it came to her knowledge that the document was in fact a divorce deed, the appellant filed a suit in Principle Munsif, Bijapur, for cancellation of the same.

Prior proceedings

  • The appellant in this appeal had been a defendant before the Principle Munsif Bijapur in the Original Suit No.156 of the year 1982, requisitioning a cancellation and declaration of the divorce deed executed on 26th June 1982 on the grounds that it was obtained by coercion and threat. The respondent in this appeal, Nirmala, had filed a suit in the Trial Court for the cancellation of the divorce deed and stated that it was obtained under fraud, threat and coercion by Yamanaji H. Jadhav.
  • The respondent-plaintiff, Nirmala, had contended that the appellant-defendant had ill-treated her throughout the course of their marriage and had caused immense mental and physical stress to her.
  • However, contrary to the statements made by the respondent-plaintiff, the appellant stated in his written statement that the allegations raised by the respondent-plaintiff were false. He admitted to being married to the respondent-plaintiff on May 26, 1978 but denied ill-treating or forcing the plaintiff to grant him a divorce.
  • The appellant-defendant, Yamanaji H. Jadhav, further stated that it was the plaintiff who actually deserted him and granted him a divorce and, hence, the divorce deed in question was executed by her of her own free will.
  • The Trial Court concluded that the plaintiff failed to establish her allegations that her signature on the divorce deed was obtained by undue influence and coercion and, thus, dismissed the lawsuit filed by Nirmala, the plaintiff-respondent.
  • The findings of the Trial Court were further affirmed by the First Appellate Court. This led her to file an appeal in the High Court of Bombay challenging the dismissal of the case by the Trial Court and First Appellate Court. 
  • The High Court overturned the decision of the Trial Court and First Appellate Court and granted an additional directive that the District Court judge shall file a complaint against the appellant, Yamanaji H. Jadhav, for the crime committed by him against his wife within three months of receiving the aforesaid judgement. 
  • Subsequently, Yamanaji H. Jadhav filed an appeal before the Supreme Court against the order of the High Court.

Issues raised in Yamanaji H. Jadhav vs. Nirmala

On the basis of the plaint filed, the Trial Court framed the following issues:

  1. Whether the divorce dated deed 26th June 1982 was the outcome of undue influence and coercion by the defendant, Yamanaji H. Jadhav, upon the appellant, Nirmala?
  2. If the deed is void, does it deserve a cancellation?
  3. Whether the court fee paid by Nirmala in her appeal was appropriate?
  4. Whether the Trial Court had the jurisdiction to try and entertain the suit?

Arguments of the parties in the case

Appellant 

  • The counsel for the appellant, Advocate P.R. Ramasesh, contended that the High Court had failed by interfering with the findings of the facts that were arrived at without framing the question of law in this regard. 
  • It was further stated that it was the respondent, in fact, who deserted the appellant and further executed the divorce deed at the office of the sub-registrar at her own will.
  • Therefore, on the basis of the above-mentioned grounds, the judgement of the High Court ought to be dismissed as its approach is biased and for reasons that were beyond judicial scrutiny.

Respondent

  • The counsel for the respondent, Advocate K. Sarda Devi, contended that the plaintiff had ill-treated the respondent, the appellant’s wife, throughout the time they lived together.
  • The counsel further argued that the signature of the defendant on the divorce deed was obtained through coercion and fraud at the Sub-Registrar’s office.
  • Thus, the council supported the decision of the High Court.

Laws involved in the Yamanaji H. Jadhav vs. Nirmala

Customary divorce under Section 29(2) of the Hindu Marriage Act, 1955

Customs are rituals and practices that have been followed in a community, group or family consistently and uniformly for a long period of time. For a custom to be valid, it should be consistent with the statutes of the State and not be against any public policies. Divorce obtained under a specific custom is called a “customary divorce.”

Section 29(2) of the Hindu Marriage Act, 1955, stated that nothing in the Act shall be considered to influence any right that is granted by a custom or given by any other special law to get the dissolution of a Hindu marriage, whether it was solemnised previously or after this Act came into effect. There are a few requisites for the practical application of this section; they are:

  1. The marriage has to be solemnised according to the rites and rituals that have been customary in the communities of the parties involved.
  2. The marriage has to be in accordance with the traditional and cultural norms of the communities of the parties, thereby emphasising their importance. For example, a marriage should not be between two individuals that come under a “sapinda” relationship, i.e., in their own lineage.

In the present case, the Supreme Court stated that the Trial Court did not check the validity of the deed according to the customary practices of the communities to which the parties to the marriage belonged. Therefore, they set aside the orders of the Trial Court as mentioned in the Judgement given below and directed them to start the trial afresh.

Section 97 of the Code of Criminal Procedure, 1973

  • According to this section, when any District Magistrate, Sub-division or first class, has a reason to believe that a person was confined under circumstances that would be offensive and liable, a search warrant shall be issued.
  • The persons against whom the warrant is issued or directed may search for the people who are known to be confined. If the person is found, he/she shall be taken before the Magistrate on an immediate basis, and the Court shall make an order according to the circumstances of the case as observed by them.

In this case, the father of the respondent-plaintiff had filed an application to the Trial Court under Section 97 of the CrPC, claiming that the respondent had forcibly confined her. Thereby seeking some remedy from the Court.

Judgement of the case

The judges of the Supreme Court accepted the appeal and set aside the decree and judgement of the Principle Munsif Bijapur and the High Court. The Supreme Court further remanded the matter to the Trial Court to approach and frame suitable issues as to the presence of the provisions for a customary divorce in the community of the appellant, Yamanaji H. Jadhav, and the respondent, Nirmala.

The Trial Court was then told to start afresh the trial of the case of the parties after deciding the new issue framed by the Supreme Court without being influenced by any previous findings, including the High Court findings. The Supreme Court, thus, allowed the appeal and the matter is in remand to the Trial Court for a fresh case trial in accordance with the law and in light of the observations made in the appeal.

Rationale behind this judgement

The Supreme Court, while deciding this case, stated that the Trial Court had erroneously moved forward on the basis that the divorce deed that the parties relied upon was accepted by law. The judges of the Supreme Court stated that the deed was deemed to be true and valid as per the customary laws for divorce of the community the parties belonged to without being checked by the Trial Court.

Further, the judges of the Supreme Court stated that divorce was never recognized as a means of ending a marriage under Hindu law, which was administered by Indian courts. Marriage was always regarded as a religious rite important to the sentiments of the religion, with the one exception being when it is recognized by a custom. Public policies, great ethics and the interests of society were considered to require and guarantee that, by any means, divorce should be granted only if it is in accordance with the procedures and grounds mentioned in the provisions.      

The Court further stated that, if divorce is obtained under a custom that is an exception to the general law of divorce, it should be specifically pleaded and established by the parties. If it stands unproven, then it can be held as a practice under public policy. Therefore, the Supreme Court stated that the Trial Court was obligated to determine and frame an issue as to whether there were pleadings that specifically included evidence claiming the existence of a customary divorce in the community to which the parties belonged. They were also responsible for determining whether such a customary divorce and compliance with the manner or formalities associated with it were in fact established in the case at hand to the court’s satisfaction. 

Upon reviewing the pleadings of the appellant, the Supreme Court came to the conclusion that there was no evidence submitted by either of the parties to claim the divorce was valid. There were no documents to claim that the divorce deed was based on the prevalence of such customary divorces in their community, as required by law. Further, there was no evidence presented to support the respondent’s claim that her consent was obtained through undue influence or coercion. It was found by the Supreme Court that the lawyers for the parties themselves agreed orally in the Trial Court that the divorce deed was in fact in accordance with the customary divorce prevailing in the communities of the parties. 

The Supreme Court was, therefore, of the opinion that, unless it was established in the court of law that the divorce was claimed under specific customs of the communities that the parties belonged to, no amount of pleadings in the plaint or written statement would make the divorce deed permissible. They also stated that consensus on the part of the counsel of the parties was not grounds to permit the deed in court unless and until it was established under the customs of the communities of both parties in the court of law.

The Court further stated that, even if the plaintiff did not question the validity of the customary divorce in the Trial Court, it is the responsibility of that Court to analyse and recognize the consequences of the divorce not being a customary divorce, given that a divorce by consent is also not recognized by a court unless specifically permitted by law. 

Analysis of Yamanaji H. Jadhav vs. Nirmala

What sets this case law apart is its unique circumstances and implications. While both parties presented compelling arguments, the judges initiated an enquiry on the validity of the divorce obtained and granted by the Trial Court. The Supreme Court, while going through the pleadings, noticed that the Trial Court did not check into the background of the divorce and its compliance with the Hindu Laws.

Marriage was always regarded as a religious rite important to the sentiments of the religion, with the one exception being when it is recognized by custom. Unlike other personal laws that guarantee a procedure for obtaining a divorce, Hindu Law relies on the grounds mentioned in the provisions of the Hindu Marriage Act, along with customary divorces that have taken place in the communities of each party. It was brought to the attention of the parties and their legal counsels that, while granting a divorce under the Hindu Marriage Act, 1955, the interests of the public, norms and values in society were to be considered. 

Unless it is exclusively permitted in the Act, a divorce cannot be granted. The Supreme Court stated that the Trial Court was responsible for determining whether the party pleading the existence of a customary divorce in the community to which the parties belonged made proper pleadings and whether such a customary divorce and compliance with the manner or formalities associated with it were in fact established in the case at hand to the court’s satisfaction. The judges also stated that the customary divorce being an exception against the general laws related to divorce, the custom should have been specifically mentioned in the pleadings of the party. If the custom that the parties are relying on is not proved, then it shall be considered an act that is against the interest of the public.

The Court ruled that, because custom is an exception, the general rule of divorce should have been explicitly pleaded and established by strong evidence by the person pleading for the customary divorce deed. Although, while deciding this judgement the Bench did not rely upon any precedents, the case of Yamanaji H. Jadhav v. Nirmala (2002) served as a precedent for many cases.

Cases wherein Section 29(2) of the Hindu Marriage Act, 1955 was applied

Sanjana Kumari v. Vijay Kumar (2023)

In this case, the appellant and her husband, the respondent, were married in 2011. The respondent claimed in his pleadings that, in the year 2014, a customary divorce deed was signed by the parties, their parents of the appellant, the father of the respondent and the members of the Gram Panchayat. Later in the year 2018, the respondent entered into a second marriage, and the appellant filed for action against the respondent under the Domestic Violence Act, 2005. The respondent opposed this by an application that was backed by the divorce deed. The Judicial Magistrate, however, turned down the application and granted interim maintenance to the appellant.

The respondent further appealed to the High Court, which ruled in favour of the respondent and set aside the order of the Judicial Magistrate thereby validating the customary divorce. This led the appellant to further appeal before the Supreme Court. The Supreme Court allowed the appeal partially and remitted the case back to the High Court to check the validity of the customary divorce deed.

The Court also restored the maintenance order given by the Judicial Magistrate. Justice Surya Kant and Justice Dipankar Datta observed that customary divorce can be granted by the civil court under the power that is conferred by Section 29(2) of the Hindu Marriage Act, 1955.

Subramani v. M. Chandralekha (2005)

In this case, it was observed that the two parties were married for a few years until Subramani sought divorce based on the customary practice that was followed in the communities of the parties. However, the Court found that there was no evidence presented by Subramani in order to validate and determine the certainty of the customary practice.

There was no evidence established by the party in their pleadings and thus they were found to be inconsistent. The Court therefore came to the conclusion that the divorce obtained under the custom was invalid.

The judges in this case emphasised the need for clear evidence to establish the validity of customary divorce and held that it is the responsibility of the parties asserting the prevalence of such customs to specifically plead and establish the same in their pleadings

Conclusion 

This case of Yamanaji H. Jadhav v. Nirmala, AIR 2002 SC 971, as decided by the Supreme Court, highlighted the importance of examining the validity of the facts of the parties’ pleadings according to the Sections under which they are pleaded. It emphasised the significance of establishing the customary practices of the community that the parties belong to. The parties in the present case did not, in either of their pleadings, be it plaint or the written statement, specify the customary practice that had been followed in their communities that allowed such a divorce. 

The Supreme Court first highlighted that Hindu Law traditionally does not recognise divorce and considers marriage as a sacrament that is insoluble. While the appellant pleaded for divorce under customary practice, he failed to back his claim with substantial evidence in the Trial Court. 

Therefore, the Supreme Court set aside the decisions given by the Trial Court as well as the High Court and directed the Trial Court to begin the case anew. The Trial Court was directed to frame new issues that were centred around the validity of the alleged customary divorce and allow the parties to submit any additional evidence for their claims.

The ruling, in this case, served as a precedent for future disputes, emphasising the importance of proving customary practices backed by substantial evidence and also directing the role of the judiciary at the Trial Court to ensure it is complied with. It also reinforced the principle that divorces where consent mattered should strictly follow the principles.

Thus, this case truly protected individuals and ensured fair justice from the judiciary’s end.

Frequently Asked Questions (FAQs)

What is customary divorce?

The term “customary divorce” is not widely used in law, and divorce laws can differ significantly from one jurisdiction to the next. These are separate from procedures and practices that are as per standard or customary practices inside a particular social or strict setting. 

Divorce may be governed by traditional or customary laws rather than state civil laws in some cultures or religious communities. These standard separation practices could include explicit customs, methodology, or prerequisites that contrast with provisions under Hindu Law.

It was observed by Justice Surya Kant and Justice Dipankar in the Yamanaji H. Jadhav vs. Nirmala (2002) that a civil court can grant customary divorce under the provision that is given by Section 29(2) of the Hindu Marriage Act, 1955.

Can one seek divorce under the Hindu Marriage Act, 1955?

Divorce was not essentially a part of Hindu Law as it was believed that the marital relationship was indissoluble. However, due to changing societies and circumstances, there are certain grounds mentioned for divorce under Section 13 of the Hindu Marriage Act, 1955. Divorce under the Hindu Marriage Act, 1955, is based on the concept of fault theory, where one of the aggrieved spouses can approach the court under Section 13 of the said Act. It is only permitted for a grave reason in the interest of society.

In Yamanaji H. Jadhav v. Nirmala (2002), the Supreme Court stated that the Trial Court had failed to check the validity of divorce under the Hindu Marriage Act, 1955 and proceeded with the suit. Thus, the Court directed the case back to the Trial Court for examination of the divorce deed and its validity. 

What are the grounds for divorce as per the Hindu Marriage Act, 1955?

According to Section 13(1) of the Hindu Marriage Act, 1955, the grounds for divorce are: 

  1. Adultery 
  2. Cruelty
  3. Desertion
  4. Conversion
  5. Unsoundness of mind
  6. Leprosy
  7. Venereal disease
  8. Renunciation
  9. Presumption of death

Apart from these, Section 13(2) of the Hindu Marriage Act, 1955, provides for grounds for divorce only available to the wife as follows: 

  1. Bigamy by husband;
  2. Act of rape, sodomy or bestiality committed by the husband;
  3. No cohabitation between husband and wife for a period of more than one year after the decree for maintenance has been passed;
  4. The marriage was solemnised before the wife attained 15 years of age, she can then repudiate the marriage.

References

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