Customary Divorces in India
- Prior to passing of The Hindu Marriage Act, 1955, divorce was obtained/given based on long term customs prevailing in any community, tribe, or local area. There was practice of giving divorce through a deed usually known as chhor chutti, tyag patra, chuttam chutta etc.
- After independence marriage and divorce law for majority Hindu population was codified under The Hindu Marriage Act, 1955.
- The legislature preserved the provisions related to practice of customary divorce as a long term custom or usage having the force of law in a community, tribe, or local area and same has not being discontinued. The said provision is contained in Section 29(2) of The Hindu Marriage Act, 1955.
- The long term custom or usage should be continuous and ancient, not be opposed to public policy or unreasonable.
- Any marriage solemnized under the provisions of The Hindu Marriage Act, 1955, may be dissolved as per prevailing custom of any cast or community. The government authorities like marriage registrar, passport authorities, visa authorities, immigration department, police etc., do not recognize customary divorce and they demand a court order.
- The party claiming customary divorce has to then hurriedly obtain a decree of declaration from the civil/family court, that the customary divorce is valid and legal and the marriage is legally dissolved.
- The party claiming customary divorce has to satisfy the court that there is a continuous custom in his/her community of giving customary divorce. If the party is not able to satisfy the court regarding existence of practice of customary divorce in their community, then the court may reject their petition for declaration. Under such circumstances the parties are left with no other option but to file appeal in the higher court or they may obtain divorce by mutual consent under Section 13 (b) of The Hindu Marriage Act, 1955. The courts are inclined in granting waiver of six months waiting period for grant of divorce by mutual consent. However if the ex spouse is of mischievous nature he/she may refuse customary divorce and this may result in a contested long legal battle.
- If a person remarries after obtaining customary divorce and without obtaining declaration decree from the competent court, then that person is liable to be prosecuted and punished for bigamy under Section 494 & 495 of the Indian Penal Code, as the courts may reject to declare his/her previous marriage validly dissolved as per long term custom or usage having the force of law in a community, tribe, or local area. The past or present spouse of a person claiming customary divorce may file a case of bigamy under Section 494 & 495 of the Indian Penal Code to extort financial benefits or to satisfy their ego. It is therefore advised that a person claiming customary divorce, prior to his/her remarriage obtain a court declaration regarding validity of customary divorce.
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