Customory divorce
Arvind Singh Chauhan
(Querist) 20 April 2012
This query is : Resolved
Sir,
One of my client belongs to Schedule tribes. He and his wife requires divorce and one time settlement. This time wife and minor child is getting Rs 2000/- pm as maintenance under 125 Cr.P.C. Now wife is agreed to receive Rs 5 lac as full and final settlement.
Now both wants divorce.
My problem is -
1. whether I must file petition under Hindu Marriage Act on ground of mutual consent ? another thing is that under Sec 2 Of HM Act tribes are excluded from HM Act.?
2. Or I must file a civil declaratory suit for annulment of marriage under CPC.
3. Or They should follow their custom. In their custom, before the Panchayat, after some religious activities one green thread is broken for divorce. It is well known fact that customs prevails over law. But I want to safeguard my client from every angle as he has to pay huge amount ?.
3. In future can wife claim maintenance for child if she receives life time maintenance for her child also ?
4. Even after divorce, Order of 125 stands at the same footing, as wife is entitled even after divorce or till remarriage. Whether this order can be cancelled or altered under 127 Cr.P.C. after full and final payment ?
Please Sir, keeping in mind the precedents if any, suggest the safe and proper way for husband.
ajay sethi
(Expert) 20 April 2012
2. Application of Act.-
2) Notwithstanding any thing contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
most of scheduled tribes are governed by customs .divorce has to be by customary laws
Devajyoti Barman
(Expert) 20 April 2012
The cusotmary divorce is only an option typically allowed to the Tribal people in India.
That however by no stretch of imagination exclude the effect of HMA upon them.
In other words you can very well file case for mutual divorce u/s 13B of HMA.
Else you can make that happen through customary rituals.
The legal right can not be waived , Hence the wife can very much claim maintenance both for herself and the child in future unless she gets remarried.
ajay sethi
(Expert) 20 April 2012
an application can be filed under section 127 of the CrPC to modify or cancel the order of maintenance, if changed circumstances are pointed out
Adv.R.P.Chugh
(Expert) 20 April 2012
Dear Colleague,
First of all custom as you rightly said is recognised as regards divorce - as per S.29(2) of the Hindu Marriage Act, however that in itself won't do, even after customary divorce - a declaratory suit has to be filed, wherein the court on being satisfied as to the applicability of custom would give it's stamp of approval.
Secondly : No amount of settlement can oust her right to maintenance, SC subscribes by what Lord Atkin once said : that we cannot allow a woman to barter her right to maintenance, any agreement to the contrary is considered against public policy and hence void.
Though if she does decide to sue, if the quantum of money she has got is not illusory, would bring down the amount that she gets.
Thirdly : Her claim u/s 125 can be negatives as you said by resort to 127, however that would by no means negative S.25 Hindu Marriage Act, which allows court to give maintenance before or after the decree.
Nadeem Qureshi
(Expert) 20 April 2012
Dear Arvind
as per section 2 (2) of Hindu Marriage actand Dr. Surrajmani Stellee Kujur v. Durga Charan Hansdah, AIR 2001 SC 938
The Marriage between the members of Scheduled Tribes is not governed by the Hindu Marriage Act in the light of section 2(2). Rather their marriage would be governed only by their Customs and usage.
second thing is mutual consent, in which she can not claim maintenance from her husband according to section 125 Cr.PC.
as per my opinion fulfill all formalities of divorce traditionally and prepared a mutual agreement of divorce in the light of customs and usage, in which you can mention all the terms and condition.
after this agreement of mutual divorce she can not claim any maintenance from him
feel free to call
Arvind Singh Chauhan
(Querist) 20 April 2012
Thanks a lot members for helping. Nadeem Sir thanks for the judgment. Sir After fulfilling formality of traditional divorce, I should file application under Sec 127. Am I right ?
Shonee Kapoor
(Expert) 22 April 2012
Yes Arvind,
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 22 April 2012
Prepare the documents of divorce as per custom where under alimony is agreed to be paid in proceedings to be initiated under section 127 for cancellation of order of maintenance passed under section 125 of Cr.P.C.As every thing would be done before court,no problem is expected to arise in future.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 April 2012
Mr Chugh has put the things in proper perspective.
You just can not say this or that is custom and is applicable to us.
So a declaratory suit has to be filed and court after full trial will decide the matter.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 22 April 2012
The citation quoted by Ld Mr Nadeem has following procedure to plead and claim custom.=
9. The expression “custom and usage” has been defined under Section 3(a) of the Act as:
3. (a) the expression ‘custom’ and ‘usage’ signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been
discontinued by the family;
10. For custom to have the colour of a rule or law, it is necessary for the party claiming it,
to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence
Arvind Singh Chauhan
(Querist) 22 April 2012
Thanks members I am preparing document including customary divorce and alimony, together with I am filing application under 127 and filing suit under Sec 9 CPC for declaration.
Thanks a lot for contributing.
