Customary Divorce
Proof of—To prove custom, the parties are required to lead cogent evidence—It is not sufficient to prove custom of dissolution of marriage by examining few witnesses—It is expected from the parties to prove the prevalence of customary divorce in their area/community by producing judgments that recognize their custom and show past instances of customary divorce in the community.
[Para 16]
Customary divorce amongst Jat community—Proof—Apart from referring to other instances of grant of Panchayati Divorce to few person, the appellant has not produced any evidence, including text, to show that Panchayati Divorce was being granted in the community from a very long time—Appellant has also not produced any Panchayati decision in this regard—Evidence led by appellant to prove prevalence of custom of dissolving the marriage through Panchayat falls short of the legal requirements to prove the same.
[Paras 18 & 19]
Hindu Law
Custom—Burden of proof—One of the ways to prove custom is reference to any text or interpretation of Hindu law or usage for long period of time—Once the court is called upon to declare that there exists a custom which is contrary to the codified law, the burden of proof is heavy upon the party asserting custom—Custom cannot be extended by analogy and it cannot be established by a priori method.
[Para 17]
Hindu Marriage Act, 1955
Section 11 read with Sec. 5(1)—Order of Family Court declaring alleged marriage void as it was solemnized in contravention of Section 11 read with Section 5(1) of the Hindu Marriage Act—Appeal—Failure of appellant to prove that she was divorced from her previous husband as per custom—Hence, in view of Section 5(i) of the Act, the appellant could not solemnize the marriage with the first respondent—No reason found to interfere with impugned judgment passed by the Family Court—Appeal dismissed.
[Paras 23 & 24]