The Calcutta High Court recently comprising of a Single Bench of Justice Sabyasachi Bhattacharyya has held that merely obtaining a customary divorce will not attract the exception envisaged under Section 29(2) of the Hindu Marriage Act.(Krishna Veni v. Union of India & Ors.)
The bench has made it clear that the validity of such a divorce has to be established by a deed of declaration.
The bench held, "For Section 29(2) of the 1955 Act to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom, to obtain the dissolution of a Hindu marriage".
Facts of the case
The writ petition was filed against an order of the Assistant Secretary to the Government of West Bengal, denying pension to the Petitioner under the Swatantra Sainik Samman Pension Scheme, 1980.
The present challenge has been preferred by Smt. Krishna Veni, the second wife of Sardar Natha Singh (since deceased), was a freedom fighter getting a pension from the Central Government under the Swatantra Sainik Samman Pension Scheme, 1980 till his demise on August 25, 1984.
The petitioner, relying on a deed of declaration of divorce, purportedly executed by respondent no.11, the first wife and Sardar Natha Singh, the husband of the petitioner, claimed widow pension under the said Scheme, which was refused by communication dated March 6, 2012 issued by the Assistant Secretary to the Government of West Bengal on the ground that such deed of divorce dated December 19, 1956, was not acceptable under the Hindu Marriage Act, 1955, in the absence of a decree for divorce obtained from a competent court of law.
Contention of the parties
Learned counsel submits that the petitioner and her deceased husband were governed by customs of Jat Sikhs, which permit such a divorce. As such, the petitioner claims that Section 29(2) of the Hindu Marriage Act, 1955 is attracted. Sub-section (2) of Section 29 of the Act provides that nothing contained in the Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of the Act.
Learned counsel appearing for respondent nos.1, 2 and 4 submits that the petitioner’s claim for widow pension was rightly rejected, since the validity of the divorce by the deed of declaration, produced by the petitioner, was not established by the petitioner. Learned counsel relies on Subramani and others vs. M. Chandralekha, reported at (2005) 9 SCC 407, for the proposition that a custom, to be upheld, is to be pleaded and proved by the party relying on the same
Court's Observation and judgment
The Single Bench agreeing with the contentions raised by the Respondent, observed,
"In the utter absence of any evidence, let alone conclusive, that the divorce decree executed purportedly between respondent no.11 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."
It added,
"There was nothing to prevent the petitioner from approaching the competent civil court for such declaration. The burden and initial onus lies on the petitioner to prove the existence of a custom having the force of law, to be proved by evidence - oral or documentary - in order to attract the benefit of Section 29(2) of the Hindu Marriage Act."
The Court further noted that 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.
In such a scenario, the Court held, the spouses will have to revert back to Section 13 of the Act, which sanctions dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law.
Before parting, the Bench expressed its inclination towards directing division of pension between the petitioner and the Respondent no.11 equally. However, it refrained from doing so in the absence of any law in that regard.
The Bench dismissing the petition remarked, "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."
Read Judgment @Latestlaws.com
Share this Document :Picture Source :
