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Marriage under Hindu law not a contract to be undone by a deed, says Bombay High Court

Marriage under the Hindu law is not a contract that can be annulled by the signing of a deed of divorce by the couple themselves, the Bombay High Court has said, in a case that it termed as "very peculiar and most unusual."

The court was hearing an appeal against a family court order by a city couple who, unaware of the legal provisions for divorce, had dissolved their marriage by simply signing a deed between themselves. They did not approach a family court for a decree of divorce. Later, discovering the inadequacy of their deed, they petitioned the family court for "divorce by mutual consent", but the court refused to hear their plea on the grounds that they had already got divorced by signing the deed.

The HC division bench of Justice VK Tahilramani and Justice V L Achliya, earlier this week, directed the Bandra family court to dispose of the couple's plea as expeditiously as possible, even waiving the mandatory waiting period of six months for seeking divorce by mutual consent.

While passing the order, the HC observed that marriage under the Hindu law can never be treated as a "contract simplicitor" between two individuals. The bench observed: "Under the Hindu law, it is treated as a sacrosanct relation between two human beings placing certain obligations and duties against each other. So also the divorce in Hindu Marriage was a concept difficult of attainment and governed by stringent laws."

The couple were married in 2007, but differences arose between them just a year later. After all efforts to save the relationship failed, they chose to separate in June 2011 - but only through a "Deed of Divorce" which they got notarised. Both soon remarried.

That this deed did not legally annul the marriage only came to light when the wife -- now married to an American citizen of Indian origin --applied for a visa to the US Consulate. Her US-based husband had found her a job and wanted her to shift to that country.

The Consulate authorities brought it to her notice that her first marriage still subsisted. A few days after the personal interview at the Consulate, the authorities wrote her a letter in September this year, informing her that they were unable to issue her a visa as she had not produced a decree of divorce from an Indian court.

She immediately got in touch with her former husband, who agreed to file a petition seeking divorce by mutual consent. The family court, however, rejected the petition, observing that they had already got divorced through the deed of divorce "as per the custom and usages prevailing in their caste and community."

The wife's advocate, R M Upadhyay, argued before the HC that to accept divorce by "customs prevailing in the caste and community," there has to be a proven track record of such a custom. Moreover, the couple were both Hindus, and the Hindu Marriage Act contained no provision for getting divorced in that manner.

The HC accepted the argument and restored the petition seeking divorce by mutual consent.

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