Gujarat High Court
Manojkumar Ramanbhai Patel vs None on 15 April, 2025
Author: Biren Vaishnav
Bench: Biren Vaishnav
NEUTRAL CITATION
C/FA/1155/2025 JUDGMENT DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1155 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE BIREN
VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
Yes -
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MANOJKUMAR RAMANBHAI PATEL & ANR.
Versus
NONE
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Appearance:
MR HM PARIKH, SENIOR ADVOCATE with MR SAURABH J. MEHTA(2170)
with MR MJ MEHTA(5797) for the Appellant(s) No. 1,2
MR NANDISH H SHAH(11330) for the Appellant(s) No. 1,2
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CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE BIREN VAISHNAV
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 15/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK)
1. Present appeal is filed under Section 19 of the Family Courts Act, 1984 (hereinafter be referred to as "the Act") and under Sections 3 and 29 of the Hindu Marriage Act, 1955 (hereinafter be referred to as "the H.M. Act" challenging the impugned judgment and decree dated 07.04.2025 passed by the learned Principal Senior Civil Judge, Page 1 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined Family Court, Bardoli (hereinafter be referred to as "the Family Court") in Family Suit No. 17 of 2025 whereby the Family Court has dismissed the suit.
2. Brief facts of the present case, in nutshell, are as under:-
2.1 That the appellant No.1 and appellant No.2 are the husband and wife and they got married on 26.10.2001 as per all Hindu rites and rituals in presence of friends and family members and the said marriage came to be registered on 18.07.2008 before the Office of Registrar, Marriage Registration, Government of Gujarat.
2.2 A marriage between appellant No.1 and one Ms. Pushpaben Jagubhai Patel came to be solemnized on 28.01.1999 at Village:
(Ramji Mandir), Bardoli, Taluka: Bardoli, District: Surat following all rites and rituals of the Hindu religion as well as tradition and customs of Leuva Patel Samaj and the marriage came to be registered on 29.01.1999 in the office of the Marriage Registrar and since then appellant No. 1 and Ms. Pushpaben Jagubhai Patel resided together as husband and wife. It is the case of the appellants that since Ms. Pushpaben Patel arrived from United States of America for marriage purpose and after marriage, she returned back to United States and thereafter, appellant No. 1 and Ms. Pushpaben Patel were living separately.
2.3 That Ms. Pushpaben Patel promised appellant No.1 to call him abroad, but due to the reasons best known to her, she was not in a position to call appellant no. 1 and much time had flown but she neither returned to India nor tried to call appellant No. 1 to USA, so that they can lead happy married life. Despite several insistence, Ms. Page 2 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined Pushpaben Patel was not called appellant No. 1 to USA and appellant No.1 was not ready and willing to wait and therefore, disputes cropped-up between appellant No. 1 and Ms. Pushpaben Patel and despite several efforts made by the family members and relatives, the marriage was broken down and there was no possibility of reunion Ms. Pushpaben Patel executed a dissolution of marriage in California, United State of America on 04.08.2000 and sent it for execution to appellant No. 1.
2.4 The appellant No.2 was initially married to one Mr. Mukeshbhai Patel as per the rites and ritual prevalent in the Hindu community as well as the rites and rituals as prevalent in Leuva Patel Samaj on 11.07.1997 and out of the said wedlock one boy child namely Dhruvi, was born on 28.06.1999 and after passage of time, the dispute cropped-up between appellant No.2 and Mukeshbhai, due to which she and Mukeshbhai decided to dissolve and therefore, as per customs of community, appellant No. 2 and Mukeshbhai executed a Deed of Divorce on 13.01.2001. Thereafter, on 26.10.2001, the appellants got married and the said marriage were solemnized on 26.10.2001, the marriage was also registered, and a certificate of marriage is issued by Government of Gujarat. The appellants are staying together as husband and wife and is having a boy child born out of the said wedlock namely Shivam.
2.5 That somewhere in the year 2009, appellant No. 2 applied for immigration visa of United States of America, and as per F3 immigration category, only principal applicant has to apply for immigration visa and dependent applicants do not have to apply for immigration visa and therefore, appellant No. 1 did not apply for immigration visa at that point of time, however, since appellant No. 1 Page 3 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined did not take divorce by way of a divorce petition and availing divorce decree from the Court of law, the U.S. Consulate raised a query stating that the appellants were not free to marry, since appellant No. 2 was divorced only by way of divorce deed dated 13.01.2001 and under Indian law, legal divorce required a divorce issued by an Indian Court. The United State Consulate also stated that the divorce of appellant No. 1 came to be finalized vide divorce decree dated 15.04.2023.
2.6 That since Ms.Pushpaben did not come back to India after the year 1999, appellant No. 1 was constrained to execute a dissolution of marriage agreement sent by Ms. Pushpaben from California, United States to end their marriage, so that appellant No.1 can remarry and settle in life. The customary divorce is prevailing in the community since ages and since the appellants also belong to same community, customary divorce is permitted.
2.7 The husband of appellant No. 2 has passed away in the year 2008, and the wife of appellant No. 1 never came back to India from United States of America and considering the fact that community permits customary divorce by way of divorce deed, the Agreement/Deed executed by both the appellants for taking customary divorce are valid in law.
2.8 That since the U.S. Consulate raised a query, the appellants were constrained to approach the Court of learned Principal Senior Civil Judge at Bardoli, Surat by filing a Family Suit seeking declaration of their marital status as provided under Section 7(A) and Section 7(B) of the Family Courts Act, 1984 read with Section 3 and 29 of the Hindu Marriage Act, 1955.Page 4 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025
NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined 2.9 After hearing the parties and considering the averments, the Family Court has framed the following issues.
(1) Whether the plaintiffs prove that the marriage between them is legal and valid since 26.10.2001?
(2) Whether the plaintiffs prove that marriage between them and their respective spouses terminated as per the customs prevailing in the community to which they belong? (3) Whether the plaintiffs are entitled to the relief of declaration as prayed for?
(4) What order and decree?
2.10 The Family Court, after considering the evidence available on record and the submissions made by the parties, dismissed the suit vide judgment and decree dated 07.04.2025.
3. Being aggrieved by and dissatisfied by the impugned judgment and decree, the appellants have preferred the present appeal.
4. Heard Mr.H. M. Parikh, learned senior counsel with Mr.Saurabh Mehta, learned counsel with Mr.M. J. Mehta, learned counsel appearing for the appellants at length.
5. Mr.Parikh, learned senior counsel has submitted the same facts which are narrated in the memo of appeal and has also submitted that appellants - original plaintiffs filed the suit for declaration under Section 7(a) and 7(b) of the Act r/w. Sections 3 and 29 of the H.M. Act.
He has submitted that appellant No.1 originally married with one Pushpaben as per the Hindu rites and rituals prevailing in their community on 28.01.1999 and the marriage was registered on 29.01.1999 and due to some reason, their marriage life was not going smoothly and there is no possibility of reunion as the first wife Page 5 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined Pushpaben went to USA and not returned back to India nor the husband was called by the wife - Pushpaben. He has submitted that Pushpaben has filed petition before the Competent Court at Califonia, USA for dissolution of her marriage and the same was dissolved by the Competent Court in the year 2000. He has submitted that in 2001, appellant No.1 got married with another lady i.e. appellant No.2 herein and earlier appellant No.2 got married with one Mukeshbhai on 11.07.1997, which came to be dissolved as per the Hindu customary prevailing in the Patel community by executing deed of dissolution of marriage on 13.01.2001 and thereafter appellant No.2 got married with appellant No.1 on 26.10.2001. He has submitted that out of the said wedlock, appellant No.2 delivered a boy child namely Shivam on 19.09.2002 and now at present he is aged about 23 years of age and since the Consulate General of USA wanted marriage certificate, therefore, both the appellants have jointly filed the suit for declaration that no one has objection and, therefore the Family Court has completely misread the pleadings of the plaint and the relevant provisions of law, while dismissing the suit.
5.1 Mr.Parikh, learned senior counsel has also submitted that mutual agreement the appellant No.1 and first wife got dissolution as per the customary prevailing in the community by executing deed of dissolution in 1991 and, thereafter, after following due procedure, appellant No.1 got married with appellant No.2 in 2001 and since then they are residing as husband and wife. He has submitted that the marriage between appellant Nos.1 and 2 is known to concerns and no one has objected the same and, therefore, the reliefs as sought for in the suit deserve to be granted in favour of the appellants. Mr.Parikh, learned senior counsel has referred to Section 7(a) and 7(b) of the Act Page 6 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined and Sections 3 and 29 of the H. M. Act and has submitted that the marriage is known to all concerns and no one has objected the same and, no reason recorded to that effect by the Family Court. He has submitted that the Family Court has not properly appreciated the facts and evidence and not applied the mind while passing the impugned judgment and decree. He has submitted that the Family Court has referred and relied upon the orders passed by this Court and other Courts which are placed on record and pressed into service. He has submitted that the present appeal deserves to be allowed and the impugned judgment and decree deserves to be quashed and set aside.
5.2 In support of his submissions, Mr.Parikh, learned senior counsel has relied upon the following decisions.
(1) Poorna D/o. Yashvantrai Harilal Patel Vs. Mehulkumar Ishwarbhai Vitnani, First Appeal No. 925 of 2017 dated 15.03.2017;
(2) Dipika Amrutbhai Patel Vs. Vishwam Parmanand Patel, 2011 (1) GLH 457;
(3) Anandkumr Jashbhai Patel Vs. Nitalben D/o. Vinubhai Chhotabhai Patel, First Appeal No. 42 of 2015 dated 24.03.2015;
(4) Sonalben Keyurbhai Patel D/o. Rameshbhai Naranbhai Patel Vs. Superintendent Regional Passport Office, 2010 AIR (Guj) 136;
(5) Twinkle Rameshkumar Dhameliya Vs. Superintendent, 2006 (4) GLR 3443;
(6) Arjun S/o. Ranappa Hatgundi Vs. Sushilabai @ Sugalabai D/o.
Gurupadappa Yankanchi, Misc. First Appeal No. 202179 of 2023;
(7) S.P.S. Balasubramanyam Vs. Suruttayam @ Andali Padayachi, 1994 (1) SCC 460;
(8) Andrahennedige Dinohamy Vs. Wijetunge Liyanapatabendige Balahamy, 1927 AIR (PC) 185;
(9) Sanjana Kumari Vs. Vijay Kumar, Criminal Appeal No. 2905 of 2023 dated 18.09.2023;
Page 7 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined (10) S. S. Munnalal and others Vs. S. S. Rajkumar and others, AIR 1962 SC 1493;
(11) Smt. Ass Kaur (deceased) by L.Rs. Vs. Kartar Singh (Dead) by L.Rs. And others, AIR 2007 SC 2369;
(12) Dipeekaben D/o. Hasmukhbhai Nanjibhai Shrimali Vs. Vishvjeetsinh Ashoksinh Gohil, Second Appeal No. 91 of 2022 dated 02.01.2024;
6. We have considered the submissions made on behalf of the appellants and gone through the material available on record and the impugned judgment and decree passed by the Family Court. It appears from the record that the Family Court has, while dismissing the suit, not considered the prayers made by the appellants jointly to declare their marriage as legal and valid from 26.10.2001, which is absolutely illegal as first marriage of appellant No.1 was in existence till decree was passed by the Competent Court only on 15.04.2023; unless and until the marriage was dissolved by the Competent Court, the marriage cannot be declared as legal and valid when the first marriage was in subsistence. It is also relevant to note herein that appellant No.2 got married with one Mukeshbhai in 1997, which is not dissolved by any legal decree till date and, therefore, in the eyes of law, the marriage is in subsistence. The husband of appellant No.2 died in 2008 and during such period, appellant No.2 had not approached the Competent Court for getting decree of divorce though she got the divorce as per their customary rituals prevailing in their community in 2001. Though all the aforesaid facts are aware to appellants from 2001 to 2025, they have not made any efforts to get declaration at the earliest and after 24 years of their marriage, the appellants filed litigation only in 2025 seeking declaration that their marriage is legal and valid, however, the suit itself is time barred. Though no one is objecting their relationship, it does not mean that in Page 8 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined the eyes of law, the appellants can be legally wedded husband and wife since the relationship between the deceased Mukeshbhai and appellant No.2 is continued till date and she becomes widow of Mukeshbhai and during the life time of Mukeshbhai, appellant No.2 has not approached the Competent Court by filing appropriate proceedings under Section 13(1) seeking consent divorce decree. Therefore, unless and until, legal and valid decree is passed in favour of appellant No.2, she cannot be seek declaration of her marriage with appellant No.1 as legal and valid.
7. In support of the case, the appellants have produced certain affidavits before this Court by way of additional documents along with the papers book, which are not produced before the Family Court and no any witness has been examined to verify the fact which is agitated before this Court. It is also further to be noted that the appellants have prayed in the suit that the marriage with appellant No.2 be declared as legal and valid either from the deed of dissolution of marriage with earlier husband - Mukeshbhai in 2001 or from the date when her husband died in 2008 or alternatively from the date of dissolution between appellant No.1 with first wife Pushpaben i.e. from the date of decree passed by the Family Court, as appellant No.1 wanted to get Visa in 2008, has filed an application, which came to be rejected by the concerned authority on the ground that there was no legal divorce document produced between appellant No.2 with her earlier husband and, therefore on that count, the application was rejected and that was the cause for filing the suit. Considering the fact that appellant No.2 has not filed any proceedings for getting decree of divorce with her earlier husband - Mukeshbhai till the date of his death and without getting dissolution of marriage, in legal terms Page 9 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined indirectly they wanted to get the said reliefs by way of filing the present appeal which is not permissible in the eyes of law.
8. At this juncture, it would be appropriate to refer to Section 7(a) and 7(b) of the Family Court's Act, which reads as under:-
"7. Jurisdiction.--(1) Subject to the other provisions of this Act, a Family Court shall--
(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation;
and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends."
9. It would also be appropriate to refer to Section and 29 of the Hindu Marriage Act, which reads as under:-
"29. Savings.-(1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religion, castes or sub-divisions of the same caste.
(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.
(3) Nothing contained in this Act shall affect any proceeding under any law for the time being in force for declaring any marriage to be null and void or for annulling or dissolving any marriage or for judicial, separation pending at the commencement of this Act, and any such Page 10 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined proceeding may be continued and determined as if this Act had not been passed.
(4) Nothing contained in this Act shall be deemed to effect the provisions contained in the Special Marriage Act, 1954 (43 of 1954), with respect to marriages between Hindus solemnized under that Act, whether before or after the commencement of this Act."
10. The provisions mentioned in the suit itself is completely misconceived and unless and until the decree of dissolution of marriage obtained by the concerned parties, they cannot enter into the second marriage unless the Competent Court passes the decree in their favour, meaning thereby that the marriage between the parties was considered in subsistence till the date of declaration of the marriage. Accordingly, the deed of dissolution of marriage executed between the parties as per their customary prevailing in their community, which cannot be recognized unless it is examined by the Competent Court. It is specific case of appellant No.1 that he got divorce from the first wife in 2001 by virtue of decree of dissolution passed by the Foreign Court, however, he has not got any valid recognizance from the Competent Court of India and when the objection raised by the office of the Consulate General, USA, appellant No.2 got a decree of dissolution of marriage in 2023 only. Therefore, the prayers as sought for by the appellants to declare their marriage from 2002 as legal and valid, cannot be passed by the Competent Court and the Competent Court cannot be made part of fraudulent transaction. In the case of appellant No.2, though she got divorce from Mukeshbhai in 2001, till the death of her husband in 2008, she has not got legal and valid decree for divorce from the Competent Court though they were residing as husband and wife and during the wedlock, appellant No.2 delivered a boy child, who is now at present Page 11 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined 23 years of age and, therefore, the Court cannot pass any decree. Therefore, the Family Court dismissed the suit filed by the appellant for declaration of the marriage as legal and valid solemnized between appellant No.1 and 2 on 26.10.2001. As per the law prevailing, the marriage of appellant No.1 was in subsistence with the first wife Pushpaben till 2023 and, therefore, only after 2023, the person can be able to marry with someone after getting the decree of divorce and such decree was passed only on 15.04.2023 and, thereafter, appellant No.1 can re-marry. However, in this case, though the first marriage of appellant No.1 is in subsistence he married with appellant No.2, therefore, the marital relation cannot be recognized in the eyes of law.
11. The contention raised by Mr.Parikh, learned senior counsel with regard to declaration sought for declaring the marriage solemnized between appellants No.1 and 2 is legal and valid on the basis of the deed of divorce executed between the parties as customary. For the said contention, it is worthwhile to refer to Section 5 of the H.M. Act, which reads as under:-
"5. Conditions for a Hindu marriage. - "A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the marriage;
[(ii) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity;] Page 12 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined
(iii) the bridegroom has completed the age of [twenty- one years] and the bride, the age of [eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two."
12. On perusal of Section 5 of the H. M. Act, now let Section 11 of the H. M. Act be referred which reads as under:-
"11. Void marriages. - Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [agains the other party], be so declared by a decree of nullity if it contravens any one of the conditions specified in clauses (I), (iv) and (v) of section 5."
13. Looking to the close scrutiny of the decision of the Hon'ble Supreme Court in the case of Sanjana Kumari (supra) more particularly para - 7 onward, it appears that this decision goes against the present appellants. In the case of Sanjana Kumari (supra), the Hon'ble Supreme Court has held and observed in para - 12 as under:-
12. It is apparent in the instant case that the proceedings under the D.V. Act are still pending final adjudication. Even if assuming that the learned Judicial Magistrate is vested with jurisdictional competence to determine the validity of a customary divorce deed, yet no such determination could take place merely on an application moved by the respondent-husband. The respondent is obliged to lay proper foundation in pleadings, impeccable evidence to prove long time custom and then establish that their marriage was validly dissolved by resorting to customary rights. Unless the respondent proves prevalence of the Page 13 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined custom in conformity with public policy and consequential enforceability of the divorce deed dated 05.01.2014, there is a statutory presumption of subsisting marriage between the parties. In that case, the complaint under the D.V. Act cannot be quashed at the threshold, on the ground of its non-maintainability. The High Court thus legally erred in assuming the validity of customary divorce deed 05.01.2014 and then in proceeding to quash the proceedings under the D.V. Act on the premise that the parties are no longer legally wedded husband and wife.
Such an inference can be drawn only after the respondent successfully proves the validity and enforceability of customary divorce deed dated 05.01.2014. We reiterate that the onus to prove the customary divorce deed lies on the respondent who is relying upon the same, and on the appellant to prove to the contrary."
14. For the purpose of deciding the present appeal, as noted hereinabove by us, the issues emerge from the facts before this Court are as under:-
(1) Whether the relief which is sought for by the appellants can be granted or not?
(2) Whether the Court may pass the order of declaration for marital status of the parties based upon divorce deed executed by and between the parties as per the custom of their community / society?
(3) Whether the appellants have proved the deed of divorce executed between the parties before the Family Court by leading cogent material evidence?
15. In this regard, considering the fact that the first deed of divorce executed between appellant No.1 and Pushpaben and on the basis of same, the divorce decree issued by the Competent Court at Califonia, meaning thereby that the said dissolution was ordered by the Competent Court of USA but foreign decree is required to be recognized and get certified. The second deed of divorce is concerned, the same was executed by and between appellant No.2 Page 14 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined and Mukeshbhai which was valid or not. For that, they have to prove the deed of divorce before the Competent Court that the divorce took place between appellant No.2 and Mukeshbhai was legal and valid unless it is proved it cannot be said that it is legal and valid evidence. Now, the question as to whether the Court is competent to issue declaration as prayed for by the appellants? First and foremost condition laid down in Section 5 which requires to be satisfied by the parties. In the present case, during the lifetime of Mukeshbhai, accused No.2 remarried with appellant No.1 without there being any legal and valid evidence and unless and until, the marriage declares as dissolution by the Competent Court on the basis of the deed of customary divorce executed by and between the parties, for which the parties have to produce the same before the Competent Court or registration authority to register the marriage. The marriage with appellant No.1 cannot be recognized in the eyes of law as legal and valid because it is in contravention of ingredients of Section 5. The relevant aspect is required to be kept in mind that whether by way of customary divorce the parties' marital status can be declared as they prayed for on the basis of divorce. The Division Bench of this Court has considered the aspect of customary divorce in the case of Bhartiben W/o. Amitbhai Vitthalbhai and D/o. Ravjibhai Kavani Vs. Amitbhai Vitthalbhai Sojitra reported in 2021 LawSuit (Guj) 3138. In the said decision, the Division Bench of this Court has made relevant observation in paras - 7, 7.1, 7.2 and 7.3.
16. We shall first address ourselves on the issue whether there was a recognized custom in the Leuva Patel Community to dissolve a marriage by way giving divorce to each other, privately before the panchas and if so, whether the appellants could be said to have led Page 15 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined appropriate evidence in that regard. Unless and until, the marriage between the appellant - wife and her earlier husband was dissolved legally, the husband had no right to contract a second marriage and since the earlier divorce was not recognized by law, the parties continued to be under marital bone.
17. It is well settled principles of law as laid down by the Supreme Court that prevalence of customary divorce in the community to which the parties belong, contrary to general law of divorce must be specifically pleaded and established by person propounding such custom. In our view, in the absence of any proper pleadings on behalf of the plaintiff in the plaint about the then alleged existing custom and customary divorce in the Leuva Patel Community, the plaintiff could not have led any oral evidence on the said issue.
18. Section 13 of the Hindu Marriage Act, 1955 provides for dissolution of marriage by a decree of divorce on various grounds set out therein. Section 4 of the Hindu Marriage Act, 1955 provides that save as otherwise expressly provided in the Hindu Marriage Act, 1955, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Hindu Marriage Act, 1955 shall cease to have effect with respect to any matter for which provision is made in the said Act. Section 29 (2) of the Hindu Marriage Act, 1955 provides that nothing contained in the said Hindu Marriage 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 the said Act. Section 3(a) of the Hindu Marriage Act, 1955 defines the expressions 'custom' and 'usage.' It is provided that unless the context otherwise requires, the custom and Page 16 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined usage signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family. It is provided that the rule is certain and not unreasonable or opposed to public policy and further provided that in the case of a rule applicable only to a family, it has not been discontinued by the family.
19. The conjoint reading of Section 3(a), 4(a) and 29 (2) respectively of the Hindu Marriage Act, 1955 indicates that though Section 29(2) of the said Act saves the customary rights, a person who relies upon such custom has to prove that such custom and usage had been continuously and uniformly observed for a long time and had obtained the force of law amongst the Hindus in their local area, tribe, community, group or family and such custom was not unreasonable or opposed to public policy. In our view, the plaintiff has miserably failed to prove at the first instance that there was any such custom prevailing in the Leuva Patel Community to obtain divorce by execution of a document in presence of the Panchas and secondly, whether such alleged customary divorce was continuously and uniformly observed for a long time in the Leuva Patel Community and was not opposed to public policy.
20. Thus, the custom must be ancient and there must be proof of customary divorce prior to passing of the Act. All the documents filed are after the Act and that will not prove custom. The evidence of the plaintiff is that in the presence of Panchayatdars, divorce had taken place. It is not the custom and it does not prove that customary divorce was prevailing in their community and it was ancient and prior to passing of the Act. To prove customary divorce, the plaintiff must establish the proof of custom. As regards the nature and quantum of Page 17 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined proof of custom, the following propositions are enunciated by the Madras High Court in Gopalayyan v. Ragupatiayyan, 7 MHCR 250 :
"(i) The evidence should be such as to prove the uniformity and continuity of the usage and the conviction of those following it that they were acting in accordance with the law and this conviction must be inferred from the evidence.
(ii) Evidence of the acts of the kind, acquiescence in those acts, decisions of Courts, or even of Panchayats, upholding such acts; statements of experienced and competent persons of their belief that such acts were legal and valid, will all be admissible; but it is obvious that although admissible evidence of this latter kind will be of little weight if unsupported by actual examples of the usage asserted."
21. Even after the development of the constitutional principles and in the presence of ever so many welfare legislations in favour of women, the Courts are recognizing the customary divorces, which can never be accepted nor be approved. Customary divorce undoubtedly is a social evil. Customary divorces undoubtedly are happening on account of the attitude of ill-minded male chauvinists. Customary divorces are decided by few persons, who may not have much idea about the social developments and the constitutional perspective. Be that it be, the only concern of this Court is that such customary divorces are approved by the Civil Courts even without ascertaining the basic factors regarding the customs prevailing as well as practice. Customary divorce can never be approved nor recognized by the law. The Hindu Marriage Act, which was enacted in the year 1955, recognized such customary divorce and now, after a lapse of 64 years, the practice of granting customary divorce can never be adopted nor be followed and the Courts should not approve any such customary divorce granted by few men from the community or the Page 18 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025 NEUTRAL CITATION C/FA/1155/2025 JUDGMENT DATED: 15/04/2025 undefined relatives of the husband or wife. In the event of approving such customary divorces, then the implications would be large and we will be marching towards backward and that can never be accepted. Such customary divorces are affecting personal liberty and fundamental rights of the women to adjudicate their issues before the competent forum.
22. In view of the aforesaid observation and discussion, we do not see any reason to interfere with the impugned judgment and decree passed by the Family Court and the appeal being meritless deserves to be dismissed. Accordingly, the appeal fails and it is dismissed. There shall be no order as to cost.
(BIREN VAISHNAV,ACJ) (HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 19 of 19 Uploaded by V.R. PANCHAL(HC00171) on Mon Apr 21 2025 Downloaded on : Mon Apr 21 21:19:55 IST 2025