The Kolkata High Court, while hearing a writ petition, refused to recognize the validity of a customary divorce stating that the petitioner had not approached the civil court for valid divorce deed and further pointed out that the petitioner had also failed to prove existence of such custom having force of law to attract section 29(2) of Hindu Marriage Act, 1955.
Factual Background
The petitioner was the second wife of the deceased who was a freedom fighter. The deceased used to get pension from the central government under Swatantra Sainik Samman Pension Scheme, 1980 till his death. The petitioner claimed widow pension after the demise of the husband but the claim was rejected by the government authorities on the ground that the deceased’s divorce from the first wife was not valid under the Hindu Marriage Act, 1955 without any decree of divorce from any competent court. Thus the petitioner filed a writ in the high court.
Petitioner’s Contentions
The counsel for petitioner contented that the deceased was a jat sikh and such divorce was permitted as per their customs and same would attract Section 29(2) of the Hindu Marriage Act, 1955 as per which such customary divorces which were not given in the act were recognized. The petitioner further relied on multiple Supreme Court and other High Court cases where divorce decree was granted by the courts after recognizing customs and usage of different castes and argued that the government authorities have unlawfully denied the petitioner from the widow’s pension.
Respondent’s Submissions
The counsel appearing for the respondents submitted that the respondents were correct in rejecting the petitioner’s claim since the validity of divorce decree was not established by the petitioner. However, the counsel suggested that the pension can be divided equally between the two wives if the court directs.
The Court’s Decision
The single judge bench of Justice Sabyasachi Bhattacharyya observed that the onus of proving the existence of such customs which governs dissolution of marriage having force of law was on the petitioner. The court further pointed out and remarked “the petitioner did not approach the civil court for declaration regarding validity of the divorce deed. There was nothing to prevent the petitioner from approaching the competent civil court for such declaration.”
The court said that the deceased was a Sikh and the provisions of the Hindu Marriage acts would apply due to which the first marriage of the deceased could only be dissolved under section 13 of the Act and exception under section 29 would only be attracted if same was proved by evidence.
After going over the cases cited by the petitioner, the court remarked “in each of the judgments cited by the petitioner, a valid decree, sectioning the respective documents of divorce, had been passed by competent civil courts. In the present case, however, no such decree was obtained by the petitioner”. The court further stated that, “In the utter absence of any evidence, let alone conclusive, that the divorce decree executed purportedly between respondent no.11(the first wife) and her deceased husband was endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted”
The court considering the equal distribution of the pension said that it would be ‘lucrative’ however same was not good in law. The court empathized with the petitioner but remarked “this court does not have the power to enact law but is bound by the provisions of law as the Parliament, in its wisdom, chose to promulgate. Where a conflict arises between individual conscience of the concerned Judge and judicial conscience, supported by law of the land, the former has to give way to the latter.”
After finding no validity in the customary divorce and the petitioner’s contentions, the court dismissed the petition without any order as to costs.
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