Customary Divorce

Dungaji had three wives: Kaveribai, Kashibai and Nanibai. Dungaji had declared that his marriage with Kaveribai had been dissolved by way of customary divorce.

It was submitted, Dungaji failed to prove and establish the factum of customary divorce; if a customary divorce practice is claimed in a community, same needs to be clearly established.

In the circumstances and on appreciation of evidence on record, Trial Court rightly held Dungaji failed to prove the divorce as per the custom.”

Hon’ble Justice M.R. Shah, State of M.P. v. Dungaji, [Civil Appeal No. 11326 of 2011].

Customary divorce may be legal or illegal [M. Saravana Porselvi, (2008) 11 SCC 520]. It is well established by a long chain of authorities, prevalence of customary divorce in the community to which parties belong, contrary to general law of divorce, must be specifically pleaded and established by the person propounding such custom [Yamanaji H. Jadhav, (2002 ) 2 SCC 637].

There must be a specific issue framed by Court on the aforesaid and the same is required to be established and proved by leading evidence. In the absence of any such issue or any evidence, Courts below were not justified in observing that there was a customary divorce.”

Hon’ble Justice M.R. Shah, Swapnanjali Sandeep Patil, 2019 (4) SCALE 173.