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HINDU LAW — COMPREHENSIVE NOTES

Topic 85

Customary Divorce among Hindus

Miscellaneous & Cross-Cutting Topics

Relevant Sections: S.29(2) HMA | Custom

Priority: LOW | Exam Relevance: RJS

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Customary Divorce among Hindus

1. Introduction

Under traditional (uncodified) Hindu law, marriage was considered a sacrament and indissoluble. However, many communities — particularly lower castes, tribal groups, and certain regional communities — historically recognized divorce by custom. The Hindu Marriage Act, 1955 codified specific grounds for divorce but preserved the right to customary divorce through Section 29(2).

2. Section 29(2) HMA — Saving of Customary Divorce

Section 29(2) provides: Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnised before or after the commencement of this Act.

This saving clause means that communities which had a recognised custom of divorce BEFORE the HMA can continue to obtain divorces through that customary process even after the HMA came into force.

3. Requirements for Valid Customary Divorce

Custom Must Be Proved: The custom must be specifically pleaded and proved by cogent evidence. Mere assertion is insufficient. The party claiming customary divorce bears the burden (Subramani v. Chandralekha (2004) SC).
Continuous and Uniform: The custom must have been continuously and uniformly observed for a long time, obtaining the force of law within the community (S.3(a) HMA).
Certain and Not Unreasonable: The custom must be certain (not vague) and not unreasonable or opposed to public policy.
Not Opposed to Morality: Courts will reject customs that are discriminatory, patriarchal in an oppressive manner, or violative of fundamental rights.
Evidence Required: Testimony of community elders, documentation of historical practice, records of panchayat proceedings, and other cogent evidence.

4. Key Case Law

Subramani v. M. Chandralekha

(2004) SC

Ratio: The existence of a custom of divorce must be specifically pleaded and proved by cogent evidence. The court cannot presume a customary practice without evidence.

Sanjana Kumari v. Vijay Kumar

2024 SC (Justices Surya Kant & Dipankar Datta)

Ratio: Customary divorce through a ‘Customary Divorce Deed’ can be granted under S.29(2) HMA but the validity of the deed must be investigated by a competent civil court. The custom must be uniformly observed, not unreasonable, and not opposed to public policy.

Yamanaji v. Durgubai

AIR 1970 Bom 302

Ratio: Among certain communities in Maharashtra, customary divorce (known as ‘chhor-chitthi’ or ‘sod-patra’) was recognized where the husband gives a written document of divorce to the wife.

5. Communities Where Customary Divorce is Recognized

Scheduled Tribes — various tribal communities across India have customary divorce practices
Sudras and lower-caste communities in many regions
Certain communities in Punjab, Haryana, Rajasthan (where ‘chaddar dalna’ or ‘karewa’ customs exist)
Jat community, Ahir community, and similar agricultural communities
Kerala — ‘mura chikkan’ custom among certain groups
Northeast India — various Naga, Mizo, and Khasi customs

6. Exam Tips

EXAM TIP: Know: (1) S.29(2) HMA saves customary divorce; (2) custom must be specifically pleaded and proved; (3) must be continuous, certain, and not unreasonable; (4) tribal communities are the primary users of this provision. For MCQs, Sanjana Kumari (2024) is the latest SC ruling.

— End of Topic 85 —

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