September 23, 2021 11:55:32 pm
The Gujarat High Court said that divorce is a “social evil” as far as Indian society is concerned and the “concept of family is to be protected for the development of our nation.”
The court’s observation came in an order, dated September 6 and pronounced by a division bench of Justice JB Pardiwala and VD Nanavati, while refusing to grant a declaration of dissolution of marriage on the basis of a customary divorce of a couple.
The couple had solemnised their marriage in 2010 and subsequently owing to marital disputes, separated. Hailing from the Leuva Patel community, the respective family members of the couple decided to dissolve the marriage by way of a customary deed of divorce, which the couple amicably relegated themselves to.
The woman approached the family court in Ahmedabad in 2018 as was planning to get remarried and settle abroad, and visa and immigration formalities require a valid decree of divorce drawn by the competent court.
However, the family court refused to issue any such declaration, primarily on the ground that the woman plaintiff’s suit “failed to prove any practice of customary divorce being prevalent in the Leuva Patel Community.”
The woman had then approached the Gujarat HC in 2020. Her former husband refused to be present before the family court or the Gujarat HC.
Citing earlier Supreme Court judgments, the high court bench highlighted that it is a well-settled principle of law that prevalence of customary divorce in the community to which the parties belong, must be specifically pleaded and established by the person propounding such custom, which the plaintiff woman failed to do.
The bench noted, “Customary divorce undoubtedly is a social evil. Customary divorces undoubtedly are happening on account of the attitude of ill-minded male chauvinists. Customary divorces are decided by few persons, who may not have much idea about the social developments and the constitutional perspective…Customary divorce can never be approved nor recognized by the law… Such customary divorces are affecting personal liberty and fundamental rights of the women to adjudicate their issues before the competent forum.”
Refusing to interfere with the family court’s decision and dismissing the woman’s appeal, the bench however clarified that the parties can file an appropriate application under the relevant provision of the Hindu Marriage Act and pray for a decree of divorce with consent.
If such an application is filed, the Gujarat HC added, the court concerned “shall take it up for hearing at the earliest, waive the mandatory period as prescribed under the provisions and proceed to pass a decree of divorce with mutual consent.”
Commenting on family structure and nationalism, the order notes, “As far as our Indian society is concerned, divorce is a social evil. The concept of family is to be protected for the development of our nation. Characteristically moulded individuals alone can constitute a good family. A good family constitutes good nation. A good nation alone can prosper in developmental activities.”
“Under these circumstances, on the one hand we are talking about women empowerment, opportunity for women in all fields and at all levels, however, we are neglecting certain other factors, like, grant of divorce, non-maintenance etc.” the order reads.
On a concluding note, quoting philosopher Bertrand Russell, the bench observed in its order that “nationalism is the
best policy” and “regionalism is a bad policy” and thus “injecting nationalism in the minds of the people for development of our great nation is of paramount importance,” which the courts and statesmen must promote.
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