SUBRAMANI AND ORS. versus M. CHANDRALEKHA

Citation: [2004] SUPP. 6 S.C.R. 285 · Decided: 23-11-2004 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Dismissed

Judgment (excerpt)

SUBRAMANI AND ORS. 
v. 
M.CHANDRALEKHA 
NOVEMBER 23, 2004 
[ASHOK BHAN AND A.K. MATHUR, JJ.] 
Hindu Law: 
Hindu Marriage Act. 1955: 
Sections 11, 13 and 29(2)-Dissolution of Hindu marriage-Customary 
divorce-Hindu Vella/a Gounder Community-Dissolution of marriage by 
mutual consent-Plaintiff was married to one 'K' and they separated after 
two years of marriage-After the death of 'K' plaintiff filed a suit for 
partition and possession of the properties of her deceased father-in-law-
Plaintiff pleaded that she being the wife of his son, she was entitled to 
his share in the suit properties-Plaintiffs case was that under a registered 
maintenance release deed a recital was introduced that the marriage 
between the plaintiff and 'K' stood dissolved under the customary law 
prevalent in their community-Trial court and first appellate court dismissed 
the suit on the ground that the marriage stood dissolved under the custom 
prevalent in the community-But High Court decreed the suit-Correctness 
of-Held: A Hindu marriage can be dissolved only under the provisions 
of S.11 or S.13-Customary divorce must be specifically pleaded and 
established- Defendants failed to either plead the existence of a custom 
in their community to dissolve the marriage by mutual consent or to prove 
the same by leading cogent evidence-In the absence of such pleading, the 
marriage between the plaintiff and her husband cannot be dissolved by 
execution of a marriage dissolution deed-Customary divorce must be 
specifically pleaded and established. 
Words & Phrases: 
"Customary1 divorce "-Meaning of-In the context of Section 29(2) 
of the Hindu Marriage Act, 1955. 
A 
B 
c 
E 
F 
G 
The respondent-plaintiff was married to one 'K' and they separated H 
285 
286 
SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R. 
A after two years of marriage. After the death of 'K' the respondent filed 
a suit for partition and possession of the properties of her father-in-1 aw 
after he died. The respondent pleaded that she being the wife of 'K' was 
entitled to his share in the suit properties. The respondent's case was 
that she was driven out of the house and a registered maintenance 
B 
release dead was executed. However, the respondent came to know later 
that a recital had been introduced therein that the marriage between 
the respondent and 'K' stood dissolved under the customary law prevalent 
in their community viz., Hindu Vellala Gounder Community. 
c 
The trial court dismissed the suit on the ground that in the 
community to which the appellants and the respondent belonged the 
marriage could be dissolved by executing a marriage dissolution deed 
by mutual consent and, therefore, the marriage between the respondent 
and 'K' stood dissolved. The first appellate court concurred with the 
findings of the trial court. But the High Court set aside the judgments 
D and decree passed by the courts below and decreed the suit filed by the 
respondent-plaintiff. Hence the appeal. 
Dismissing the appeal, the Court 
E 
HELD : 1. As per Hindu Law divorce was not recognized as a 
F 
G 
means to put an end to a marriage, which was always considered to be 
a sacrament with only exception where it is recognized by custom. 
Hindus after the coming into force of the Hindu Marriage Act, J 955 can 
seek to put an end to their marriage by either obtaining a declaration 
that the marriage between them was a nullity on the grounds specified 
in Section 11 or to dissolve the marriage between them on any of the 
grounds mentioned in Section 13 of the Act, Section 29 of the Act saves 
the rights recognized by custom or conferred by special enactment to 
obtain the dissolution of marriage, whether solemnized before or after 
the commencement of the Act. (290-D-E-F] 
2. Prevalence of customary divorce in the community to which the 
parties belong, contrary to general law of divorce must be specifically 
pleaded and established by the person propounding such custom. The 
High Court came to the conclusion that the appellants failed to either 
H plead the existence of a custom in their community to dissolve the 
SUBRAMANI v. M. CHANDRALEKHA [BHAN, J.] 
287 
marriage by mutual consent or to prove the same by leading cogent A 
evidence. (290-G-H; 291-A) 
3. The respondent-plaintiff had admitted the execution of the 
maintenance release deed but had taken the stand thatthere was no custom 
prevalent in their community to dissolve the marriage by mutual consent. B 
But the appellants-defendant

Excerpt shown. Read the full judgment & AI analysis in Lexace.