High Court: Customary divorce a social evil, courts can’t allow it

Customary divorces can never be approved as they are undoubtedly a social evil, the Madras high court has said while declaring as null and void an order of the family court in Madurai in this regard.

The court lamented that even after the development of constitutional principles and many welfare legislations passed in favour of women, courts are recognizing such divorces.

Petitioner Banumathi’s counsel stated that her husband Packiaraj, who was working in New India Assurance Company Limited, had abandoned her after developing illegal intimacy with a married woman.

The counsel stated that later the petitioner came to know that the woman’s name was also entered as wife in Packiaraj’s service records. Since no actions were taken by the regional manager and branch manager of the company on the petitioner’s representations, she moved the HC Madurai bench in 2014.

Counsel for the company officials stated that they accepted the judgment of the family court in Madurai in 2005 and allowed Packiaraj to retire from service in 2015 and all his terminal and pensionary benefits were also settled.

Justice S M Subramaniam observed that this was a classic case where the employee who committed misconduct was allowed to escape from the clutches of law which resulted in denial of even livelihood of maintenance to the petitioner who is the legally wedded wife.

“The family court which passed a decree in 2005 had not considered the validity of customary divorce with reference to the provisions of the marriage laws. A person claiming any such customary divorce as a valid dissolution of marriage must establish that such a custom is in prevalence in the society or in the particular community. Thus, an undisputed proof is required for the purpose of establishing customary divorce and in all other circumstances, the dissolution of marriage granted by the competent court of law alone must be taken for the purpose of ascertaining the marriage status of the person,” the judge observed.

He said that in the present case, there is no such possibility of granting customary divorce specifically in Madurai city. The court said the petitioner is at liberty to approach the competent court of law for the purpose of claiming maintenance from Packiaraj by following the procedures contemplated under law.

The judge also directed the regional manager and branch manager to initiate suitable actions against the officials or employees, who are accountable for their negligence of duty and allowing Packiaraj to retire with all benefits. Circulars must be issued to initiate actions in all complaints regarding bigamous marriage and criminal case must be registered, the court added.

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