Introduction:

In the case of Sushma v. Rattan Deep & Another, the Delhi High Court was tasked with examining the validity of a customary divorce claimed by the appellant— a woman whose second marriage was declared void on the grounds that she had not legally divorced her first husband. The appellant asserted that her first marriage was dissolved by a Panchayati Divorce, a practice she claimed was prevalent within the Jat community. Relying upon Section 29(2) of the Hindu Marriage Act, 1955, which saves and recognises customary forms of divorce existing before the codified law, she argued that such customary divorce holds validity even today. However, the Division Bench of Justices Anil Kshetarpal and Harish Vaidyanathan Shankar emphasized that although Section 29 acknowledges such customs, the burden to prove the existence, authenticity, and continuity of such a custom lies heavily upon the party asserting its existence. The judgment clarified that customary divorce is not assumed, inferred, or presumed lightly in derogation of codified matrimonial law. Rather, it must be established with concrete, credible, and convincing evidence demonstrating its historical prevalence, universal acceptance, and continued recognition in the community asserting it. In this backdrop, the Court dismissed the appeal, holding that the appellant had failed to produce the kind of evidence necessary to substantiate the existence of a legitimate customary divorce system.

Arguments of the Appellant:

The appellant placed her case on the foundational assertion that she belonged to the Jat community, where Panchayati Divorce has long existed as a socially accepted mechanism for dissolving marriages. According to her, the Jat community, across several regions, traditionally allowed couples to end marital relations through mutual agreements endorsed by elders within a Panchayat— a customary system that existed long before the enactment of the Hindu Marriage Act, 1955, and continued thereafter due to its cultural roots. She argued that Section 29 of the Act explicitly safeguards such customary practices, thereby allowing dissolution of marriage in accordance with longstanding community norms even without a decree from a civil court. To support her claim, the appellant produced a photocopied document that she asserted was a customary divorce deed, mutually executed between her and her previous husband. She also examined her father and maternal uncle as witnesses, who testified that the Panchayat had granted the divorce, and that such practices were prevalent in their community. The appellant contended that compelling her to obtain a divorce decree under formal matrimonial proceedings, despite possessing a customary divorce document, would negate the legislative intent behind Section 29(2), which protects native customs and prevents codified law from overriding deeply rooted social processes. She further argued that such customs thrive not merely on written documentation but through societal acceptance and participation, and courts should therefore consider oral testimonies and declarations of those who are aware of the community’s customary practices. The appellant insisted that requiring documentary or judicial precedents to prove customary divorce sets an unreasonably high standard that effectively renders Section 29 nugatory, defeating its purpose of accommodating indigenous traditions. She argued that personal laws, including customs, evolve from collective acceptance and social history, and expecting recorded adjudications to validate them imposes standards inappropriate for non-litigious and communitarian customs. Therefore, she pleaded that the Court recognize her Panchayati Divorce as valid and lawful and, consequently, validate her second marriage.

Arguments of the Respondents:

The respondents, however, refuted the appellant’s claims, arguing that the divorce deed relied upon was merely a mutual settlement agreement and not a legally recognized customary divorce. They asserted that the appellant had not obtained any judicial decree dissolving her marriage, and hence, her subsequent marriage was void ab initio. The respondents emphasized that custom, by definition, must be ancient, certain, continuous, and uniformly accepted within the community. They further contended that customary norms cannot be casually adopted as exceptions to statutory provisions unless proved with the highest level of scrutiny. They argued that the appellant failed to produce authoritative texts, judicial precedents, or community records demonstrating that Panchayati Divorce was an established legal practice consistently followed and recognized over time. The respondents highlighted inconsistencies in the appellant’s evidence— including the absence of signatures from Panchayat officials on the alleged divorce deed, and the inability of key village authorities, such as the Deputy Sarpanch, to confirm their participation in the alleged Panchayat. They further stressed that the testimonies of the appellant’s father and maternal uncle were inherently biased and insufficient since they constituted “interested witnesses” whose testimony was not corroborated by independent, neutral evidence. They argued that in matrimonial jurisprudence governed by codified law, marriage can only be dissolved by a valid decree unless a custom satisfying the stringent evidentiary requirements is proved. In this case, there was no credible proof that such a customary practice existed, let alone that it was invoked in the appellant’s matter. Hence, the respondents prayed that the appeal be dismissed and the earlier declaration of nullity of the second marriage be upheld.

Court’s Judgment:

The Delhi High Court unequivocally reiterated the well-settled legal doctrine that customs cannot be lightly inferred nor presumed merely because a few witnesses claim its existence. The Court underscored that when a party asserts a custom that effectively overrides a codified statutory mandate— such as the requirement of a judicial decree for divorce under the Hindu Marriage Act— the burden of proof becomes exceptionally onerous. Justice Kshetarpal observed that customary divorce is permissible under Section 29(2) only when its existence is proved with clear and convincing evidence. The Court noted that custom must satisfy the essential attributes recognized by jurisprudence: it must be ancient, certain, reasonable, continuous, and enjoyed uniformly across the community. In assessing the appellant’s evidence, the Court noted significant deficiencies. First, the photocopied divorce agreement produced by the appellant did not bear the hallmarks of a Panchayati Divorce; rather, it merely reflected a private mutual settlement lacking any Panchayat resolution or official endorsement. Second, none of the Panchayat office-bearers verified attending the alleged divorce proceedings. The Deputy Sarpanch expressly denied presence in any such meeting, undermining the appellant’s narrative. Third, except for relatives who were inherently interested witnesses, no independent testimony corroborated the existence of the custom. Fourth, the appellant failed to produce any judgments, documentary materials, or historical texts showing that such a custom prevailed in the Jat community as a long-standing, recognized matrimonial practice. The Court emphasized that customary divorce cannot be proved by analogy, inference, or a priori assumptions— its existence must be demonstrated through adjudicated instances, authoritative recognition, and demonstrable continuity. The appellant’s evidence fell far short of these criteria. Therefore, the Court held that the appellant’s alleged Panchayati Divorce was legally invalid. Consequently, her second marriage remained void, as it was contracted during the subsistence of the first marriage. Ultimately, the appeal was dismissed, reaffirming that customs affecting marital status must be strictly proved and cannot be accepted merely on personal assertions or partial community practices.