Kerala High Court
Kizhakkayi Dasan vs Kuniyil Cheerootty on 29 September, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
Mat.Appeal No.630/2018 & R.P.(FC)No.126/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 29TH DAY OF SEPTEMBER 2025 / 7TH ASWINA, 1947
MAT.APPEAL NO. 630 OF 2018
AGAINST THE JUDGMENT DATED 30.04.2018 IN OP NO.743 OF 2015
OF FAMILY COURT, THALASSERY
APPELLANT/RESPONDENT:
KIZHAKKAYI DASAN
AGED 61 YEARS
S/O.LATE KRISHNAN,
CLOTH MERCHANT, RESIDING AT
KIZHAKKAYIL HOUSE, KOLAVALLOOR AMSOM,
KANNANKODE DESOM, KUNNOTHUPARAMBA
PANCHAYATH, P O THOOVAKKUNNU,
THALASSERY TALUK, KANNUR DISTRICT.
BY ADVS.
SHRI.K.P.HAREENDRAN
SRI.PRAJIT RATNAKARAN
RESPONDENTS/PETITIONERS:
1 KUNIYIL CHEEROOTTY
D/O.KORUMBAN, AGED 55 YEARS,
NO OCCUPATION, RESIDING AT KUNIYIL HOUSE,
KOLAVALLOOR AMSOM, KANANKODE DESOM,
KUNNOTHUPARAMBA PANCHAYATH,
P.O.THOOVAKKUNNU, THALASSERY TALUK,
Mat.Appeal No.630/2018 & R.P.(FC)No.126/2020
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KANNUR DISTRICT -670 101.
2 SABINA
D/O.CHEEROOTTY, AGED 28 YEARS,
NO OCCUPATION,RESIDING AT KUNIYIL HOUSE,
KOLAVALLOOR AMSOM,KANANKODE DESOM,
KUNNOTHUPARAMBA PANCHAYATH,
P.O.THOOVAKKUNNU, THALASSERY TALUK,
KANNUR DISTRICT -670 101.
THIS MATRIMONIAL APPEAL HAVING COME UP FOR HEARING ON
17.09.2025, ALONG WITH RPFC.126/2020, THE COURT ON 29.09.2025
DELIVERED THE FOLLOWING:
Mat.Appeal No.630/2018 & R.P.(FC)No.126/2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 29TH DAY OF SEPTEMBER 2025 / 7TH ASWINA, 1947
RPFC NO. 126 OF 2020
AGAINST THE ORDER DATED 11.02.2020 IN MC NO.349 OF 2018 OF
FAMILY COURT, THALASSERY
REVISION PETITIONER/RESPONDENT:
KIZHAKKAYIL DASAN
AGED 60 YEARS
S/O.LATE KRISHNAN,
RESIDING AT KIZHAKKAYIL HOUSE,
KOLAVALLUR AMSOM, KANNANKOD DESOM,
KUNNOTHPARAMBA, P.O.THUVAKKUNNU,
THALASSERY TALUK, KANNUR DISTRICT-670693.
(KOLAVALLUR POLICE STATION)
BY ADVS.
SHRI.K.P.HAREENDRAN
SMT.N.SHAMNA
RESPONDENT/PETITIONER:
KUNIYIL CHEEROOTTY
D/O.KORUMBAN, AGED 54 YEARS
(W/O.KIZHAKKAYIL DASAN, AGED 52 YEARS
SHOWN IN THE ORDER)
RESIDING AT KUNIYIL HOUSE,
Mat.Appeal No.630/2018 & R.P.(FC)No.126/2020
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KOLAVALLUR AMSOM, KANNANKOD DESOM,
KUNNOTHPARAMBA, P.O. THOOVAKKUNNU,
THALASSERY TALUK,
KANNUR DISTRICT-670693.
(WITHIN THE LIMIT OF KOLAVALLUR POLICE STATION)
THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR HEARING
ON 17.09.2025, ALONG WITH MAT.APPEAL.NO.630/2018, THE COURT ON
29.09.2025 DELIVERED THE FOLLOWING:
Mat.Appeal No.630/2018 & R.P.(FC)No.126/2020
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CR
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
= = = = = = = = = = = = = = = = = =
Mat.Appeal No.630 OF 2018 &
R.P.(FC)No.126 OF 2020
= = = = = = = = = = = = = = = = = =
Dated this the 29th day of September, 2025
JUDGMENT
P.Krishna Kumar, J.
The decree declaring the respondents herein as the
wife and daughter of the appellant, is under challenge in
this appeal.
2. The respondents filed a suit against the appellant
seeking a declaration that they are his wife and daughter.
The suit was initially decreed in favour of the respondents,
but was reversed in appeal. When the matter was taken up in
second appeal, this Court set aside the judgments and, after
framing additional issues, remanded the case for disposal
based on findings on those additional issues. The parties
were also permitted to amend their pleadings and adduce
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further evidence. Meanwhile, with the establishment of the
Family Court, Thalassery, the case was transferred to that
court. By the judgment now under challenge, the Family Court
allowed the claim of the respondents.
3. The brief facts necessary for the disposal of this
case are as follows: The parties belong to the Hindu Thiyya
community. The respondents contended that the first among
them, Cheerootty, married the appellant, Dasan, on
23.10.1988, in accordance with the religious customs
prevailing in their community, and that the second respondent
was born in the wedlock on 30.11.1989. They alleged that
Cheerootty and her daughter were later driven out of the
matrimonial home by the appellant and his family members, and
that he failed to maintain them. It was further stated that
Cheerootty was married to one Balan when she was about 12
years old, and that the marriage was dissolved about six
months later by a customary divorce, on observing the then
prevalent formalities and rituals. A declaration was sought
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that the first respondent is the legally wedded wife of Dasan
and that the second respondent is their daughter.
4. The appellant denied the above averments in his
pleadings. He contended that there was no marriage between
him and Cheerootty, that they had never lived together, and
that the second respondent was not his child. He further
argued that, since the marriage between Cheerootty and Balan
was not dissolved in accordance with law, she could not claim
to be his legally wedded wife. It was also pleaded that no
such customary dissolution of marriage, as pleaded, existed
in their community.
5. The evidence in this case consists of the oral
testimony of PW1 to PW9, DW1 to DW6, RW7 and RW8, and Exts.
A1 to A6, B1 to B18, and X1 and X2 series. After the remand,
apart from recalling PW1, PW9 was examined. Ext.X6 was marked
in evidence on the side of the first respondent. On the side
of the appellant, RW7 and RW8, who are his present wife and
child, were examined.
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6. We have heard the learned counsel for the appellant.
In spite of service of notice on the respondents, they
remained absent.
7. In the earlier round of litigation, the trial court's
finding that the first respondent had married the appellant
in accordance with their custom was upheld by the first
appellate court. So also, it was held that the second
respondent was born to the appellant in the first respondent.
This court in the second appeal, while setting aside the
judgment, did not interfere with the said findings, but
remanded the case for adjudication on certain limited issues.
The issues which were directed to be tried are:
(i) Whether a customary divorce as alleged was
prevalent in the community to which the parties belong?
(ii) Whether the marriage between the first respondent
and Balan was dissolved by such customary divorce?
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The remand order permitted the trial court to frame
additional issues if necessary, based on the amended
pleadings. However, apart from the above issues, the trial
court framed an additional issue, namely, whether the
marriage between the first respondent and the appellant was
solemnised in accordance with the custom prevailing in the
community and found it in favour of the 1st respondent. Since
the evidence regarding the marriage between the 1st
respondent and the appellant is overwhelming, no attempt is
made before this court to challenge the correctness of the
finding.
8. When there is a statute in place providing for
marriage, divorce, the grounds of divorce and the forum,
could there be a customary divorce? If at all there is such a
custom, does the law recognise such a customary divorce? The
answer lies in Sections 4 and 29(2) of the Hindu Marriage Act
('the Act', for short). The Sections read thus:
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"Section 4. "Overriding effect of Act: - Save as
otherwise expressly provided in this Act-
(a) any test, rule or interpretation of Hindu law
or any custom or usage as part of that law in force
immediately before the commencement of this Act
shall cease to have effect with respect to any
matter for which provision is made in this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to have effect
in so far as it is inconsistent with any of the
provisions contained in this Act."
Section 29(2) : "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
solemnized before or after the commencement of this
Act."
When the above provisions are read together, it becomes
evident that a customary divorce is saved and the provisions
in the Act will not affect that right.
9. The term 'custom' is defined in Section 3(a) of
the Act as follows:
"Section 3(a): the expressions "custom" and "usage"
signify any rule which, having been continuously and
uniformly observed for a long time, has obtained the
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force of law among Hindus in any local area, tribe,
community, group or family:
Provided that the rule is certain and not
unreasonable or opposed to public policy;
Provided further that in the case of a rule
applicable only to a family it has not been
discontinued by the family;"
In short, the term custom under the Act signifies a rule or
practice,
(a) which has been observed continuously and uniformly,
(b) observed for a long period,
(c) thus, has obtained the force of law among a group of
Hindus, and
(d) must be certain, reasonable and not opposed to
public policy.
Thus, the statute itself makes it clear that a practice
becomes a custom only when, by common adoption and long,
unvarying habit, it has come to have the force of law.
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10. The authoritative precedents on the subject have to
be examined for a proper understanding of the above
principle. It is well settled that the right to obtain
dissolution of a Hindu marriage on the basis of such custom
can be accepted by the Court only if the party asserting it
succeeds in proving that the custom has prevailed in the
community with the essential attributes of antiquity,
continuity, and reasonable certainty. Antiquity and
continuity are indispensable features of a practice for it to
mature into a legally acceptable custom. The burden of proof
in this regard lies entirely upon the person who relies upon
the existence of such a custom.
11. In Bhimashya and Others v. Janabi (Smt) Alias
Janawwa [(2006) 13 SCC 627], the Apex Court held:
"A custom is a particular rule which has existed
either actually or presumptively from time
immemorial, and has obtained the force of law in a
particular locality, although contrary to or not
consistent with the general common law of the
realm. A custom to be valid must have four
essential attributes. First, it must be
immemorial ; secondly, it must be reasonable ;
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thirdly, it must have continued without
interruption since its immemorial origin, and;
fourthly, it must be certain in respect of its
nature generally as well as in respect of the
locality where it is alleged to obtain and the
persons whom it is alleged to affect.
th
(See Halsbury, 4 Edn., Vol. 12, para 401, p.2 &
para 406,p.5.)"
(Emphasis added)
12. In Gokal Chand v. Parvin Kumari [AIR 1952 SC
231], the Supreme Court declared that:
"A custom, in order to be binding, must derive its force
from the fact that by long usage it has obtained the
force of law, but the English rule that 'a custom, in
order that it may be legal and binding, must have been
used so long that the memory of man runneth not to the
contrary' should not be strictly applied to Indian
conditions."
13. In Pushpavathi Vijayaram v. P. Visweswar [AIR
1964 SC 118], the Apex Court stated that the existence of a
custom must be demonstrated through clear and unambiguous
evidence so that the Court may be assured not only of its
actual existence but also that it possesses the necessary
conditions of antiquity and certainty. It was held that:
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"The law in regard to the proof of customs is not in
doubt. As observed by the Privy Council in the case of
Ramalakshmi Ammal v. Sivanatha Perumal Sethurayar (14
Moo IA 585.), "it is of the essence of special usages
modifying the ordinary law of succession that they
should be ancient and invariable; and it is further
essential that they should be established to be so by
clear and unambiguous evidence. It is only by means of
such evidence that the Courts can be assured of their
existence, and that they possess the conditions of
antiquity and certainty on which alone their legal
title to recognition depends.""
14. The Supreme Court in Salekh Chand v. Satya Gupta
[(2008) 13 SCC 119], while dealing with the claim of adoption
under the Hindu Adoptions and Maintenance Act, 1956, held as
under: (SCC pp. 130-31, paras 21-24):
"Where the proof of a custom rests upon a limited
number of instances of a comparatively recent date,
the court may hold the custom proved so as to bind the
parties to the suit and those claiming through and
under them; but the decision would not in that case be
a satisfactory precedent if in any future suit between
other parties fuller evidence with regard to the
alleged custom should be forthcoming. A judgment
relating to the existence of a custom is admissible to
corroborate the evidence adduced to prove such custom
in another case. Where, however a custom is repeatedly
brought to the notice of the courts, the courts, may
hold that the custom was introduced into law without
the necessity of proof in each individual case."
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15. This court in Kandathy and Ors. v. Kuttymammi
[1970 KLT 799] held that:
"7. All systems of law, the Hindu law and English
Common law included recognise the binding force of
customary law. But what are the attributes of a
custom before it can be exalted into a rule of law?
Antiquity is essential for a custom to be
obligatory. "But antiquity", as Allen, in an
illuminating passage, observes, "is a relative
term, and if it were applied as a test without
qualification, every custom would necessitate
indefinite archaeological research." The arbitrary
rule about the age of a custom having to be
immemorial, "time whereof the memory of man runneth
not to the contrary" does not apply to India. The
custom to be valid must be uniform and continuous,
so that the conviction of the members of the
community that they are acting in accordance with
law, when they obey the custom, should be clearly
shown. No hard and fast rule as to the period
during which the custom has prevailed can be
insisted upon. If it has existed for a long time
long enough in the circumstances of the case there
is a presumption of antiquity. Although the onus of
proof of antiquity is upon the person who sets up
the custom, the degree of proof depends on many
factors. Take this case as an illustration.
Evidence of acts proving the custom, decisions of
Panchayats and of Courts, upholding such acts,
statements of competent persons of their belief
that such acts are legal and valid are the usual
materials on which a Court acts, but if we are
dealing with a rule of custom, relating to
inheritance and succession to members of a
community who, until recently, did not have
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properties to inherit or to succeed to, proof of
custom may be hard to compile. In those cases "The
rules of evidence are liberal in matters of such
antiquity, but they remain rules of evidence and,
with every willingness to admit all such inferences
as can properly be drawn, we must distinguish
clearly between reasonable inference and plausible
conjecture. The party setting up the custom must
have the benefit of all legal presumptions, but he
can take nothing by any resort to mere surmise,
however ingenious, and his proof, though scanty,
must still be 'rational and solid'. Again, when the
existence of a custom for some years has been
proved by direst evidence, it can be shown to be
immemorial by hearsay evidence and such evidence is
allowable as an exception to the general rule (See
AIR. 1925 P.C. 213). "
16. Section 13 of the Evidence Act delineates inter
alia the factors relevant to establish the existence of a
custom. It provides that, facts relevant for proving a right
or custom are: (a) transactions by which the right or custom
was created, claimed, modified, recognized or asserted; and
(b) instances in which such right or custom was claimed,
recognized or exercised. Thus, where a party relies on a
customary right, evidence may be given of past transactions
or instances showing that such a custom has been continuously
and uniformly asserted or recognized in their community for a
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considerable period. A judgment relating to the existence of
a custom is admissible to corroborate the evidence adduced to
prove such custom in another case. [See Salekh Chand v.
Satya Gupta (supra)]
17. The existence of a custom can also be proved in the
manner provided in Section 48 of the Indian Evidence Act,
which reads as follows:
"48. Opinion as to existence of right or custom,
when relevant - When the Court has to form an
opinion as to the existence of any general custom
or right, the opinions, as to the existence of such
custom or right, of persons who would be likely to
know of its existence if it existed, are relevant.
Explanation. - The expression 'general custom or
right' includes customs or rights common to any
considerable class of persons."
Thus, the person through whom the existence of a custom is to
be proved should be one who would be likely to know of its
existence, if it existed.
18. In the above context. Section 32 of the Indian
Evidence Act is also of significance. Section 32(4) permits
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even written or verbal statements or opinions of a deceased
person to be relevant when they relate to the existence of a
custom, if made before the controversy arose and by a person
who would naturally have been aware of such matters. It
reads:
"32. Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is
relevant - Statements, written or verbal, of relevant
facts made by a person who is dead, or who cannot be
found, or who has become incapable of giving evidence,
or whose attendance cannot be procured without an
amount of delay or expense which under the
circumstances of the case, appears to the
Court unreasonable, are themselves relevant facts in
the following cases:
xx xx xx
(4) or gives opinion as to public right or custom, or
matters of general interest. - When the statement
gives the opinion of any such person, as to the
existence of any public right or custom or matter of
public or general interest, of the existence of which,
if it existed, he would have been likely to be aware,
and when such statement was made before any
controversy as to such right, custom or matter had
arisen."
To prove a custom it is not necessary that a person should
have personally witnessed instances establishing the custom,
since even hearsay evidence is admissible regarding the
statement or opinion of a person about the existence of a
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custom, provided, the conditions of Section 32 of the
Evidence Act are satisfied. [See also Kandathy and Ors. v.
Kuttymammi (supra)]. Therefore, broadly stated, the evidence
adduced to prove the existence of a custom should be in the
nature referred to above.
19. In Saraswathi Ammal v. Jagadambal and Another
[(1953) 1 SCC 362], the Supreme Court held that:
"A community living in one particular district may
have evolved a particular custom but from that it
does not follow that the community living in
another district is necessarily following the same
custom."
The above view fortifies the necessity of rational and solid
proof of the existence of a particular custom in the
community and locality of the party claiming the existence of
the custom.
20. It is also well settled that, if a right is claimed
based on a custom, it must be pleaded and proved with
meticulous details. In Kochan Kani Kunjuraman Kani v.
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Mathevan Kani Sankaran Kani [MANU/SC/0477/1971:AIR 1971 SC
1398], the Apex Court declared that:
"It is well established that in the matter of custom a
party has to plead in specific terms as to what is the
custom that he is relying on and he must prove the
custom pleaded by him. He cannot be permitted to prove a
custom not pleaded by him. In Abdul Hussain Khan v. Bibi
Sona Dero45, I.A. 10., the Judicial Committee observed
"It is therefore Incumbent upon the plaintiff to allege
and prove the custom on which he relies." That was also
the view taken by this Court in Thakur Gokalchand v.
Parvin Kumari MANU/SC/0077/1952: [1952]1SCR825 The
reason for this rule is obvious. Anybody who puts
forward a custom must prove by satisfactory evidence the
existence of the custom pleaded, its continuity and the
consistency with which it was observed. A party against
whom a custom is pleaded must have notice as to what
case he has to meet. The opposite party apart from
rebutting the evidence adduced by the plaintiff may be
able to prove that the custom in question was not
invariably followed."
(Emphasis added)
21. Let us now consider the pleadings and evidence in
the present case. In the plaint, the first respondent had
originally stated in paragraph 7 that, "the first marriage
of the first plaintiff with the above Balan was dissolved by
customary form of divorce by observing all the formalities
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of custom and rituals prevailed at that time and now, among
the Thiyyas of North Malabar." By amending the plaint after
the remand, the first respondent further pleaded in detail
the rituals which were required to be performed for the
customary marriage as well as customary divorce. It reads as
follows:
"Since thiyyas of north Malabar following
marumakkathayam law of inheritance customary
marriage with cousin was allowed as per custom. The
custom followed at that time was that in the
presence of holy lamb (Nilavilakku) which represent
holy fire both the bride and bride groom is required
to be sit down facing east direction in the presence
of close relatives, then perform the ritual of
'ayana' the prenuptial blessings by all the
relatives of both the parties older in age of both
the parties to the marriage by putting rice in the
head and shoulders of the bride and bridegroom, then
performance of 'vivaham' the wedding ceremony in
which both the parties to the marriage are required
to stand up in face-to-face posture in the east-west
direction, then exchange garlands each other, then
bride-groom present 'pudava' (sari) to the bride,
then ritual of 'sapthapati' by taking rotations
seven in number, by bride groom accompanied by
bride, by catching the hand of the bride by
bridegroom, in seven times around the holy lamb,
then post marriage blessings by relatives. The
marriage was dissolved by performing special
ceremonies. In the custom of divorce both the
husband and wife are required to sit before the holy
lamb (Nilavilakku) in the presence of close
relatives of both sides, then both husband and wife
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required to take each cotton cord of lightened
"Nilavilakku" in the opposite direction to their own
side and put it off."
The appellant filed an additional written statement denying
all the above contentions. According to him there was no such
custom.
22. After the remand, PW1 was recalled and examined to
prove the above. In her additional affidavit, in tune with
her pleadings, she described the rituals and ceremonies
performed during the customary divorce. However, there was
only a vague statement regarding the existence of such a
customary divorce in her community. She stated as follows:
"യഥഥാർത്ഥതത്തിൽ ഞഥാനനും എനന്റെ അമഥാവനന്റെ മകനഥായ ബഥാലനമഥായുള
വത്തിവഥാഹനും വടകക്കേ മലബഥാറത്തിനല നത്തിലവത്തിലുള തത്തിയ്യ സമുദഥായ പഥാരമ്പരര
വത്തിവഥാഹബനനും കവർനപ്പെടുതൽ ആചഥാരപ്രകഥാരനും (തത്തിയ്യ Customary Divorce)
കവർനപ്പെടുതത്തിയത്തിട്ടുളതഥാണണ. . . . Customary Divorce എനന്റെ സമുദഥായതത്തിൽ
സർവ സഥാധഥാരണമഥാണണ."
In cross-examination, the appellant specifically denied the
above statement, contending that there was no such custom or
usage at any point of time and that divorce among members of
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the Hindu Thiyya community could only be obtained through
court. It was further suggested to the first respondent in
cross-examination that no one in their community had
dissolved a marriage according to the custom set up. During
cross examination, the first respondent was unable to mention
the name or address of any person who had got their marriage
dissolved by following the alleged custom. She conceded that
she could not examine anyone who had obtained such a
customary divorce, before the court.
23. Despite the denial by the appellant of the existence
of any custom, after remand, to prove the issues additionally
framed, apart from re-examining herself, the only further
witness examined by the first respondent was PW9, a merchant
in Mysore who had worked together with Balan and who claimed
to have participated in the ceremony of the customary
dissolution. In tune with the version of PW1, he also
described the details of the ceremony observed by the first
respondent and Balan. What he stated about the existence of
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such a custom in their community at the relevant time, was
only as follows:
"ഇങ്ങനന വത്തിവഥാഹനും നടതഥാറുണണ, ബനനും കവർനപടുതഥാറുമുണണ. അങ്ങനന ബനനും
കവർനപ്പെടുതത്തിയവരുനട കപരുകൾ ഓർമയത്തില."
In cross-examination he conceded that he had not witnessed
any such ceremonies other than the one in respect of Balan
and the 1st respondent.
24. As noted earlier, the respondent failed to produce
evidence of even a single instance of divorce in her
community following the alleged custom. PW1 was only 12 years
old at the time of the alleged practice. PW9 has no claim
that he is a community leader. Neither of them could cite any
instance of customary divorce other than the one in question.
Their testimony falls short of the requirements of Sections
32(4) and 48 of the Evidence Act, since they cannot be said
to be persons likely to know of the existence of such a
custom, nor did they state anything reflecting the opinions
or statements of persons falling within the scope of Section
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32(4). In the absence of clear and reliable proof regarding
antiquity, continuity, and reasonable certainty of the custom
claimed, the alleged ceremony, if at all held, cannot be
accepted as sufficient proof of custom within the meaning of
Section 29(2) of the Act.
25. In fact, even before the remand and retrial, the
respondents had adduced evidence suggesting that, in their
community, a marriage could be dissolved by a customary
practice. PW5 had deposed that such a practice existed in the
Thiyya community. PW6, Balan, to whom the first respondent
was married, deposed that their marriage was dissolved
through such a tradition. PW8 stated that he was a community
leader and had participated both in the marriage of the first
respondent with Balan and in the customary dissolution of
their marriage. According to him, such a convention was
prevalent in their community. Despite these statements, none
of the witnesses was able to cite even a single instance,
apart from that of the first respondent and Balan, where a
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marriage had been dissolved through such a procedure.
Therefore, even if their statements are accepted at face
value, they are not sufficient to establish the existence of
a custom. One or two instances of such practice, or the
occasional adoption of a local practice by certain community
members, will not qualify it as a custom having the force of
law. A Division Bench of the Calcutta High Court in
Biswanath Agarwalla v. Dhapu Debi Jajodi and Ors. [AIR 1966
Cal 13] held that a custom cannot be established by a few
instances of recent origin. The Court relied on the decisions
in K. Abbayya v. Venkata Papayya, ILR 29 Mad 24, and Hashim
Ali v. Abdul Rahman, ILR 28 All 698. In Yamanaji H. Jadhav
v. Nirmala [(2002) 2 SCC 637], the Apex Court reiterated this
principle in the context of the Act, holding as follows:
"As per the Hindu Law administered by courts in India,
divorce was not recognised as a means to put an end to
marriage, which was always considered to be a
sacrament, with only exception where it is recognised
by custom. Public policy, good morals and the
interests of society were considered to require and
ensure that if at all, severance should be allowed
only in the manner and for the reason or cause
specified in law. Thus such a custom being an
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exception to the general law of divorce ought to have
been specially pleaded and established by the party
propounding such custom since said custom of divorce
is contrary to the law of the land and which if not
proved will be a practice opposed to public policy. ....
It is true in the courts below that the parties did
not specifically join issue in regard to this question
and the lawyers appearing for the parties did orally
agree that the document in question was in fact in
accordance with the customary divorce prevailing in
the community to which the parties belonged but this
consensus on the part of the counsel or lack of
sufficient pleading in the plaint or in the written
statement would not, in our opinion, permit the court
to countenance the plea of customary divorce unless
and until such customary divorce is properly
established in a court of law. In our opinion, even
though the plaintiff might not have questioned the
validity of the customary divorce, the court ought to
have appreciated the consequence of their not being a
customary divorce based on which the document of
divorce has come into existence bearing in mind that a
divorce by consent is also not recognisable by a court
unless specifically permitted by law."
As observed above, a customary divorce is an exception
to the general law and can be accepted only with utmost care,
caution, and reliable evidence. These aspects were overlooked
by the Family Court. The sufficiency of the evidence on the
first issue framed at the time of remand, already noted
earlier, has not been considered. It is relevant to note that
the respondents had earlier raised a contention that in Achu
v. Chandkurhan (1958 KLT 916) this Court had found that
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customary marriage was prevalent among Thiyyas of North
Malabar. However, relying on the observation of the Supreme
Court in Saraswathi Ammal v. Jagadambal (supra) that "a
community living in one particular district may have evolved
a particular custom, but from that it does not follow that
the community living in another district is necessarily
following the same custom", this Court remanded the case to
the trial court after framing the aforesaid issues.
Significantly, in Achu v. Chandkurhan (supra), the parties
were Thiyyas hailing from Ernad Taluk in Malabar (presently
Malappuram District). The first respondent belongs to
Thalassery Taluk of Kannur District. Thus, she was not only
bound to plead but also to prove the existence of a customary
divorce among Thiyyas of her locality. As noted earlier, the
additional evidence adduced after the remand is wholly
insufficient to establish that such a custom existed in her
community in that locality. When the first respondent failed
to prove the factum of the customary divorce pleaded, the
marriage with the appellant could only be treated as void, in
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view of Section 11 r/w Section 5(i) of the Act.
26. Hence, the judgment insofar as it upheld the
validity of marriage between the 1st respondent and the
appellant is liable to be set aside. However, in view of
Section 16 of the Act, the legitimacy of the child will not
be affected even if the marriage is void or voidable. Section
16 provides that notwithstanding the nullity of a marriage
under Section 11, any child of such marriage shall be
legitimate. Therefore, the declaration granted with regard to
the second respondent warrants no interference.
27. Along with the above appeal, Dasan filed a revision
petition challenging the order passed by the Family Court in
a proceeding initiated by the respondent - Cheerootty under
Section 125 of the Code of Criminal Procedure ('the Code',
for short). As per the said order, the Family Court ordered
monthly maintenance of Rs.5,000/-. It was allowed on the
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basis of the findings in the judgment impugned in the above
appeal that the first respondent is the wife of Dasan.
28. An order for maintenance under Section 125 of the
Code can be issued in favour of a "wife" who is unable to
maintain herself when the "husband" having sufficient means
neglects or refuses to maintain her. A woman who contracts a
marriage with a man during the subsistence of her earlier
marriage cannot be regarded as a 'wife' within the meaning of
Section 125 of the Code of Criminal Procedure.
29. In Yamunabai Anantrao Adhav v. Anantrao Shivram
Adhav [(1988) 1 SCC 530], the Apex Court held that the
marriage of a woman in accordance with the Hindu rites with a
man having a living spouse is a complete nullity in the eye
of law and she is not entitled to the benefit of Section 125
of the Code. This view was reaffirmed by the Apex Court in
Savitaben Somabhai Bhatiya v. State of Gujarat [(2005) 3 SCC
636]. Therein it was held that, however desirable it may be
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to take note of the plight of an unfortunate woman who
unwittingly enters into wedlock with a married man, there is
no scope to bring within the expression 'wife' a woman who is
not lawfully married. Therefore, when it is found that the
marriage between Dasan and Cheerootty is void, the order
impugned in the revision petition for maintenance is also
liable to be set aside.
30. Nevertheless, in Sukhdev Singh v. Sukhbir Kaur
(2025 SCC OnLine SC 299), the Apex Court declared as follows:
"28. Accordingly, we answer the questions as
follows:
(a) A spouse whose marriage has been declared
void under Section 11 of the 1955 Act is entitled to
seek permanent alimony or maintenance from the other
spouse by invoking Section 25 of the 1955 Act. Whether
such a relief of permanent alimony can be granted or
not always depends on the facts of each case and the
conduct of the parties. The grant of relief under
Section 25 is always discretionary; and
(b) Even if a court comes to a prima facie
conclusion that the marriage between the parties is
void or voidable, pending the final disposal of the
proceeding under the 1955 Act, the court is not
precluded from granting maintenance pendente lite
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provided the conditions mentioned in Section 24 are
satisfied. While deciding the prayer for interim
relief under Section 24, the Court will always take
into consideration the conduct of the party seeking
the relief, as the grant of relief under Section 24 is
always discretionary."
In view of the law laid down by the Apex Court as
above, it is open to the first respondent to make an
application before the Family Court for permanent alimony,
irrespective of the fact that her marriage is void.
Similarly, as the Apex Court has held that the courts are not
precluded from granting maintenance pendente lite in such
cases on satisfaction of the conditions mentioned in Section
24 of the Act. Taking cue from the same, we direct that the
amount, if any, paid by the appellant pursuant to the said
maintenance order shall be treated as maintenance pendente
lite, as we find that the conditions mentioned in Section 24
are satisfied in the present case.
31. In the result, the appeal is allowed in part and
the impugned judgment is set aside so far as it relates to
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the declaration that the marriage of the first respondent
with the appellant is valid. The original petition will stand
dismissed to the said extent.
R.P.(FC) No.126/2020 is also allowed. The order in
M.C.No.349/2018 of the Family Court, Thalassery is set aside,
subject to the above observations.
No order as to costs.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
sv JUDGE
