Customary Divorce : Legitimacy and Consequences
Kerala High Court Voids Marriage Over Unproven Customary Divorce, Upholds Child's Legitimacy Court rules in favor of appellant, emphasizing the need for clear evidence to validate customary divorces under Hindu Marriage Act.
The Kerala High Court has set aside the marriage validity between Kizhakkayi Dasan and Kuniyil Cheerootty, emphasizing the necessity of stringent proof for customary divorces under the Hindu Marriage Act, 1955. The court, comprising Justices Sathish Ninan and P. Krishna Kumar, delivered this landmark judgment on September 29, 2025, in Mat. Appeal No. 630 of 2018 and RPFC No. 126 of 2020.
The case revolved around the legitimacy of a customary divorce claimed by Cheerootty, who asserted that her previous marriage to one Balan was dissolved through community customs. The respondents sought judicial recognition of Cheerootty as Dasan's wife and her daughter as his legitimate child. However, Dasan contested the claims, denying any marriage with Cheerootty and alleging the absence of a legal dissolution of her prior marriage.
The court scrutinized the evidence, which included testimonies from multiple witnesses and documentary evidence, to establish the existence of a customary divorce practice within the Hindu Thiyya community. Despite the respondents' claims, the court found the evidence insufficient to prove the existence of such a custom, as neither antiquity nor continuity was demonstrated.
Highlighting statutory provisions under the Hindu Marriage Act, the court noted that while Section 29(2) preserves customary divorces, these must be proven with clear, consistent, and historical evidence. The judgment cited precedents, including Bhimashya v. Janabi and Gokal Chand v. Parvin Kumari, underscoring the need for customs to have the force of law through long-standing practice.
In its decision, the court upheld the legitimacy of the child born from the questioned union, in accordance with Section 16 of the Hindu Marriage Act, which ensures legitimacy irrespective of the void status of the marriage. This aspect of the judgment remains unchallenged.
Furthermore, the court annulled the maintenance order granted under Section 125 of the Code of Criminal Procedure, which was based on the presumption of a valid marriage. Citing decisions from the Supreme Court, it reiterated that a woman in a void marriage cannot be considered a 'wife' for maintenance purposes under this section.
However, the court left room for permanent alimony under Section 25 of the Hindu Marriage Act, indicating that Cheerootty could apply for it, subject to judicial discretion and the specific circumstances of the case. The court also directed that any maintenance payments already made be treated as interim maintenance.
This judgment serves as a significant precedent for future cases involving claims of customary divorce, reinforcing the importance of meticulous proof and adherence to legal standards.
Statutory provision(s): Hindu Marriage Act, 1955 Sections 4, 11, 16, 24, 25, 29(2); Indian Evidence Act, 1872 Sections 13, 32(4), 48; Code of Criminal Procedure, 1973 Section 125
Kizhakkayi Dasan v. Kuniyil Cheerootty, (Kerala)(DB) : Law Finder Doc Id # 2790196
