Dismissed

Nihar Dilipbhai Patel v. Jalpaben D/O Prafulbhai Somabhai Patel

Gujarat HC2 Jul 2018FA/1349/2018

Case brief

AI extract

What is this about?

Appellant challenged Family Court dismissal of his mutual consent divorce suit. Court rejected appeal, holding customary divorce cannot be presumed by party declaration absent evidence of community custom or statutory compliance under Hindu Marriage Act.

What did the court decide?

Appeal and Civil Application dismissed; parties advised to seek dissolution via mutual consent under HMA.

Nihar Dilipbhai Patel Vs Jalpaben D/O Prafulbhai… — Matrimonial and Divorce | Gujarat HC (2018)

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C/FA/1349/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 1349 of 2018 With CIVIL APPLICATION NO. 1 of 2018

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================================================================ NIHAR DILIPBHAI PATEL

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Versus

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JALPABEN D/O PRAFULBHAI SOMABHAI PATEL

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================================================================

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Appearance:

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MR BAIJU JOSHI(1207) for the PETITIONER(s) No. 1 for the RESPONDENT(s) No. 1

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MR ARPIT A KAPADIA(3974) for the RESPONDENT(s) No. 1

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================================================================

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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE B.N. KARIA Date : 02/07/2018 ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

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Appellant has challenged the judgment and decree of Family Court dated 7.12.2017 dismissing the suit of the appellant. The appeal is supported by the respondent. Facts on record would suggest that marriage between the appellant and the respondent took place on 25.7.2011 according to Hindu rites. Out of such wedlock son-Dhyan was born on 3.7.2012. Appellant-husband and respondent-wife had matrimonial disputes leading to accusation of harassment and cruelty by the wife. Both the sides thought that it is not possible to continue the marriage. According to them, customary divorce took place on 21.9.2016, which was reduced in writing and also registered before the Registrar's office.

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Both the parties are residing in USA. The US authorities did not accept the validity of customary divorce, instead insisted on a Court decree. Thereupon the husband filed Family

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Page 1 of 3

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C/FA/1349/2018 ORDER

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Suit No.188 of 2016 praying for a declaration that his marriage with the respondent-wife stood dissolved by virtue of Divorce Deed dated 21.9.2016. The wife, of course, supported the husband. The husband gave his deposition before the Court on affidavit.

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The Family Court by the impugned judgment dismissed the suit, inter alia, on the ground that there were some discrepancies with respect to actual date of separation in the Divorce Deed and the deposition of the husband and further that nobody from the office of the Registrar was examined. 4. Having heard learned counsel for the parties and having perused documents on record, we are in agreement with the view of the trial Court that the suit was liable to be dismissed, however, on the grounds somewhat different from those recorded by the Court below. The Hindu Marriage Act, 1955 codified the law of marriage and divorce amongst the Hindus. The said Act makes detailed provisions regarding validity of a marriage, the grounds on which marriage would be void or voidable and also for dissolution of marriage. A valid marriage can be dissolved on the grounds stated in the said Act, upon Court being satisfied that such grounds exist. Customary divorce on the other hand would stand outside of these provisions. Before customary divorce can be accepted, there has to be existence of such a custom in the community to which the parties to the marriage belong. By mere declaration, a statement on oath or a passing reference by the parties, such custom would neither get established nor can be presumed. In a case like one on hand, where both sides are interested in putting a legal seal on dissolution of marriage, understandably there would be no resistance from the opponent to the declaration prayed by the plaintiff. This does

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Page 2 of 3

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C/FA/1349/2018 ORDER

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not mean that the Court should accept such a declaration for the mere asking. Existence of a custom has to be pleaded and proved through reliable evidence. Any other view would be detrimental to the very institution of the marriage which the society and law believe should be as far as possible protected and preserved.

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In the present case, there is not an iota of evidence of existence of custom in the community permitting dissolution of marriage through intervention of the elders and other members of the community without obtaining decree of the Court. In his deposition, the husband merely made declaration to this effect. The advocate of the wife in the crossexamination led the husband to reiterate such a statement. Such a declaration, even if unopposed, cannot take shape of proof of such a custom. Under the circumstances, we have no hesitation in dismissing this appeal.

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Learned advocates for the parties, however, submitted that the husband and the wife are residing separately since more than two years now, they are settled in their own lives and would like to put an end to the marriage legally. Nothing stated in this judgment would prevent them from applying before the competent Court for dissolution of marriage on mutual consent. The concerned Court would examine such a petition, if so filed, in accordance with law. Appeal is dismissed along with Civil Application.

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(AKIL KURESHI, J)

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(B.N. KARIA, J)

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R.S. MALEK

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Page 3 of 3

Nihar Dilipbhai Patel v. Jalpaben D/O Prafulbhai Somabhai Patel

Case brief

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Nihar Dilipbhai Patel v. Jalpaben D/O Prafulbhai Somabhai Patel

Case brief

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