Court’s Decision
The Kerala High Court, comprising Justice Sathish Ninan and Justice P. Krishna Kumar, delivered a landmark ruling clarifying that customary divorce cannot be accepted without clear, cogent, and historically supported proof of its existence in a community. The Court set aside the Family Court’s declaration that recognized a woman as the legally wedded wife of the appellant, finding that her alleged previous marriage was not validly dissolved under any proven custom.
The Bench, however, upheld the legitimacy of the child under Section 16 of the Hindu Marriage Act, 1955, and quashed the Family Court’s order granting maintenance under Section 125 of the CrPC, since the marriage was void in law. Nevertheless, the Court permitted the woman to apply for permanent alimony under Section 25 or maintenance pendente lite under Section 24 of the Act, in line with the Supreme Court’s decision in Sukhdev Singh v. Sukhbir Kaur (2025 SCC OnLine SC 299).
Facts
The case revolved around a claim by a woman and her daughter seeking a declaration that they were respectively the legally wedded wife and daughter of the appellant. They contended that a customary marriage had been solemnised between them as per Thiyya community rituals on 23 October 1988, and that the daughter was born from the said union on 30 November 1989.
The woman further claimed that she was previously married at the age of 12 to one Balan, but that marriage was dissolved through a customary divorce, following the rituals prevalent among Thiyyas of North Malabar. Based on these assertions, she sought a declaration confirming her marital status and her daughter’s legitimacy.
The appellant, on the other hand, denied any marriage with the woman, disputed the existence of the alleged custom, and asserted that since her earlier marriage was never lawfully dissolved, any subsequent relationship could not amount to a valid marriage under the Hindu Marriage Act.
Issues
- Whether the alleged customary divorce among Thiyyas of North Malabar was legally recognized and established by evidence.
- Whether the alleged marriage between the woman and the appellant was valid and lawful.
- Whether the woman could claim maintenance as a “wife” under Section 125 of the CrPC despite the invalidity of marriage.
- Whether the child born out of such a relationship could be declared legitimate.
Petitioner’s Arguments
The appellant’s counsel contended that the Family Court had erred in accepting an unproven custom. It was argued that under Sections 4 and 29(2) of the Hindu Marriage Act, a customary divorce can exist only if it is ancient, certain, reasonable, and not opposed to public policy.
The appellant pointed out that neither the woman nor her witnesses provided any evidence of similar instances of customary divorce in their community. They merely described rituals but failed to show that such a practice had been uniformly and continuously followed for a long time.
Relying on the Supreme Court decisions in Bhimashya v. Janabi [(2006) 13 SCC 627] and Pushpavathi Vijayaram v. P. Visweswar [AIR 1964 SC 118], the appellant argued that a custom must be proved through clear and unambiguous evidence establishing antiquity and continuity, not by conjecture. Therefore, the claimed divorce lacked legal sanctity, rendering the alleged marriage void under Section 11 r/w Section 5(i) of the Act.
Respondent’s Arguments
The respondent (woman) reiterated that her first marriage had been customarily dissolved in accordance with rituals and traditions observed among Thiyyas. She described the ceremony in detail — both spouses would sit before a Nilavilakku (holy lamp), extinguish its flames by pulling out cotton wicks in opposite directions, symbolizing the end of marital ties.
She claimed that such customary divorces were socially accepted and prevalent in their community and that her subsequent marriage to the appellant was valid under those customs. She relied upon the Kerala High Court decision in Achu v. Chandkurhan (1958 KLT 916), where the existence of similar customs among Thiyyas was recognized.
However, she could not produce any witness or documentary proof of other similar cases or corroborating evidence from community elders.
Analysis of the Law
The Court undertook a meticulous analysis of Sections 4, 29(2), and 3(a) of the Hindu Marriage Act, 1955, emphasizing that the law overrides all customs except those explicitly recognized as valid. A valid custom must be ancient, certain, uniform, reasonable, and continuous.
It relied on the following precedents:
- Bhimashya v. Janabi — Custom must have four essential attributes: immemorial origin, reasonableness, continuity, and certainty.
- Gokal Chand v. Parvin Kumari [AIR 1952 SC 231] — Indian courts need not apply the English “time immemorial” standard, but long and uniform usage must be proved.
- Pushpavathi Vijayaram v. Visweswar — Proof of custom requires clear, unambiguous, and reliable evidence.
- Salekh Chand v. Satya Gupta [(2008) 13 SCC 119] — A custom repeatedly recognized by courts may be judicially noticed; otherwise, specific proof is required.
- Kandathy v. Kuttymammi [1970 KLT 799] — Antiquity and continuity are essential; mere sporadic practices do not constitute custom.
The Bench stressed that customary divorces are exceptions to the general law and therefore must be proven with “rational and solid evidence,” not vague recollections or singular examples.
Precedent Analysis
The Court discussed several landmark rulings that guided its decision:
- Yamanaji H. Jadhav v. Nirmala [(2002) 2 SCC 637] — Divorce by custom is an exception to Hindu law; it must be specially pleaded and strictly proven.
- Saraswathi Ammal v. Jagadambal [(1953) 1 SCC 362] — A custom valid in one region cannot automatically be presumed valid in another.
- Achu v. Chandkurhan (1958 KLT 916) — Cited but distinguished; that case concerned Thiyyas from Ernad (now Malappuram district), whereas the present case involved Thiyyas from Kannur. Therefore, the earlier finding was not automatically applicable.
- Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav [(1988) 1 SCC 530] — A woman married to a man already having a living spouse cannot claim maintenance as a “wife.”
- Sukhdev Singh v. Sukhbir Kaur (2025 SCC OnLine SC 299) — Even when a marriage is void, the woman can seek alimony under Section 25 or maintenance pendente lite under Section 24 of the Hindu Marriage Act.
Court’s Reasoning
The Court found that the respondent’s claim of customary divorce was wholly unsubstantiated. Her testimony and that of her lone witness, PW9, failed to establish antiquity, continuity, or certainty of the alleged custom. Neither produced any instance of others having undergone a similar practice.
The Court observed:
“A solitary instance of an alleged divorce cannot mature into a custom. Antiquity and uniform observance are the lifeblood of custom; conjecture is not proof.”
The Bench emphasized that while Achu v. Chandkurhan had acknowledged a custom among Thiyyas in Malappuram, such regional variation cannot be automatically extended to Thiyyas in Kannur.
Thus, the Court held that the marriage between the respondent and the appellant was void, as the earlier marriage with Balan subsisted. However, invoking Section 16 of the Act, it clarified that the child remains legitimate notwithstanding the nullity of the marriage.
Regarding maintenance, the Court cited Yamunabai Anantrao Adhav and Savitaben Somabhai Bhatiya, reiterating that a woman in a void marriage is not a “wife” under Section 125 of the CrPC and hence cannot claim maintenance.
Nonetheless, in deference to humanitarian considerations and the evolving jurisprudence under Sukhdev Singh v. Sukhbir Kaur, the Court directed that any maintenance already paid under the impugned order be treated as maintenance pendente lite under Section 24 of the Hindu Marriage Act, allowing her to seek permanent alimony if so desired.
Conclusion
The Kerala High Court allowed the appeal in part, setting aside the Family Court’s declaration of marriage validity, but upheld the child’s legitimacy. The revision petition against the maintenance order was allowed, quashing the Family Court’s award under Section 125 CrPC.
However, the Bench explicitly preserved the woman’s right to apply for maintenance under Sections 24 and 25 of the Hindu Marriage Act, aligning the ruling with the Supreme Court’s compassionate interpretation in Sukhdev Singh.
The judgment underscores the principle that:
“Customary divorce is an exception to the law, and exceptions cannot rest on speculation or convenience; they must rest on ancient, continuous, and certain practice.”
Implications
This ruling reaffirms that customary practices cannot override statutory law without stringent proof. It safeguards the sanctity of marriage under the Hindu Marriage Act while simultaneously protecting children born from such unions.
Further, it harmonizes traditional customs with modern legal safeguards, recognizing that while an unproven marriage cannot confer spousal rights, equity demands financial protection under Sections 24 and 25.
The decision also reinforces that a local practice in one region cannot automatically extend to another, ensuring regional specificity in the recognition of customs.
FAQs
1. Can a woman claim maintenance under Section 125 CrPC if her marriage is void?
No. The Court clarified that a woman whose marriage is void due to an existing spouse cannot claim maintenance as a “wife” under Section 125 CrPC.
2. What proof is required for establishing a customary divorce?
A custom must be proven as ancient, continuous, certain, and reasonable — with examples, community recognition, and corroborative testimony from persons likely to know of its existence.
3. Can a child from a void marriage be declared legitimate?
Yes. Under Section 16 of the Hindu Marriage Act, children from void or voidable marriages are legitimate for all purposes except inheritance from parents beyond their property.
