A husband said a 'customary divorce deed' ended his marriage. The Supreme Court wasn't convinced.

A husband handed his wife a piece of paper and said, 'Our marriage is over.' The High Court agreed. The Supreme Court just said: prove it.

The paper was a customary divorce deed, signed by family members and the local Gram Panchayat. No court. No hearing. No evidence that the custom even existed. The Himachal Pradesh High Court accepted it at face value and killed the wife's domestic violence case. The Supreme Court restored it in September 2023, and in doing so, it told every High Court in the country: you cannot assume a custom exists just because someone hands you a deed.

The judgment in Sanjana Kumari v. Vijay Kumar is a sharp reminder that a customary divorce is not a shortcut. Under Section 29(2) of the Hindu Marriage Act, 1955 — a provision that preserves the right to dissolve a marriage according to any valid custom or usage under Hindu law — a party must specifically plead and prove the custom through cogent evidence. Until that proof is adduced, the law presumes the marriage is still subsisting.

The 2011 wedding, the 2014 deed

A couple married under Hindu rites in 2011. By 2014, the marriage had soured. On January 5, 2014, the husband claimed, they executed a customary divorce deed. Signatures from both families. Signatures from the Gram Panchayat. No divorce petition. No court. Just a deed — a piece of paper that the husband would later hold up as proof that the marriage had ended.

Four years later, in 2018, the husband remarried. That same year, the wife filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005 — the provision that lets a woman approach a magistrate for protection orders and maintenance when she faces domestic violence. The complaint landed before the Judicial Magistrate First Class at Kandaghat, in Himachal Pradesh's Solan district.

The husband walked into the magistrate's courtroom and said the complaint was dead. The marriage, he argued, had already been dissolved by the 2014 deed. The magistrate disagreed. He rejected the husband's application and granted the wife interim maintenance of Rs. 3,000 per month. The courtroom, one imagines, had the quiet hum of a working court — files stacked, the magistrate's gaze steady as he read the deed and found it insufficient.

When the High Court said 'case closed'

The husband escalated. He filed a petition under Section 482 of the Code of Criminal Procedure, 1973 — the High Court's inherent power to quash proceedings that abuse the court's process — before the Himachal Pradesh High Court at Shimla. His argument was simple: the deed was valid. The marriage was over. The domestic violence complaint had no legal basis.

The High Court agreed. On August 31, 2022, it accepted the customary divorce deed at face value. It quashed the entire domestic violence proceedings. It set aside the interim maintenance order. The wife was left with nothing — no case, no maintenance, and a marriage that the High Court had declared ended eight years earlier. The courtroom in Shimla, one can picture, had the weight of finality — a judge's signature on an order that closed the door on a woman's claim.

But the High Court had made a critical error. It had assumed the deed was valid without requiring the husband to prove that the custom actually existed. The deed itself — a document that might have been a single sheet of paper, signed in ink by family elders and panchayat members — was treated as conclusive proof of a custom that had never been pleaded, let alone proved.

Section 29(2) is not a free pass

The wife appealed to the Supreme Court. The husband's case rested on Section 29(2) of the Hindu Marriage Act, 1955 — a provision that preserves the right to dissolve a marriage according to any custom or usage that is valid under Hindu law. The 2014 deed, he argued, was exactly that: a customary divorce recognised by the community.

The Supreme Court was not impressed. A bench of Justice Surya Kant and Justice Dipankar Datta noted that Section 29(2) does not give anyone a free pass. The court held that a party relying on a customary divorce must specifically plead and prove that the custom exists — that it has been uniformly observed for a long time, that it is not unreasonable, and that it is not opposed to public policy. Until that proof is adduced, the law presumes the marriage is still subsisting.

The court cited three precedents: Yamanaji H. Jadhav v. Nirmala (2002), Subramani v. M. Chandralekha (2005), and Swapnanjali Sandeep Patil v. Sandeep Ananda Patil (2020). All three stood for the same principle: a customary divorce is not a magic trick. You cannot wave a deed and expect a court to accept it without evidence.

The Supreme Court's reasoning was sharp. The court noted that the High Court had used its power under Section 482 CrPC to short-circuit the entire process. That power, the bench reminded, is meant to prevent abuse of the court's process — not to decide disputed questions of fact on the basis of a single document. The High Court, the bench held, had no business assuming the deed was valid. It should have required the husband to prove the custom through proper pleadings and evidence.

What the court actually said

The Supreme Court's judgment is notable for its clarity on the burden of proof. The court held that a complaint under Section 12 of the Domestic Violence Act cannot be quashed at the threshold — at the very beginning, before any evidence is heard — on the ground that it is not maintainable because of a customary divorce deed whose validity has not been established. The court stated that until such proof is adduced, there is a statutory presumption of subsisting marriage.

The court also noted that the High Court had erred in assuming the validity of the customary divorce deed and quashing the DV Act proceedings at the threshold. The matter was remanded to the High Court to decide the Section 482 petition afresh without relying on the customary divorce deed dated January 5, 2014. The question of whether the deed was valid was left to be determined by a court of competent jurisdiction, after proper evidence.

The Supreme Court set aside the High Court's order and restored the domestic violence proceedings. The interim maintenance of Rs. 3,000 per month was also restored, with arrears to be paid within one month. The parties were directed to appear before the High Court on October 30, 2023.

Why this matters for every family law practitioner

The judgment is a reminder that customary divorce is not a shortcut. Under Section 29(2) of the Hindu Marriage Act, a custom can dissolve a marriage — but only if the person claiming the custom proves it exists. That means leading evidence: showing that the custom has been followed consistently, that it is not a one-off invention, and that it is not against public policy.

For lawyers advising clients who claim a customary divorce, the message is clear: don't assume the deed will hold. Prepare to prove the custom. File an affidavit detailing the custom's origin, duration, and consistency — and be ready to lead oral and documentary evidence at trial. For lawyers on the other side, the judgment is a powerful tool: if the other party cannot prove the custom, the marriage is presumed to continue, and the Domestic Violence Act applies.

The judgment also has implications for how High Courts exercise their power under Section 482 CrPC. The Supreme Court's reminder that this power is meant to prevent abuse of process — not to decide disputed questions of fact — is a significant check on the tendency of High Courts to shut down proceedings at the threshold on the basis of a single document.

THE PLAY: If your client relies on a customary divorce deed, file an affidavit detailing the custom's origin, duration, and consistency — and be ready to lead oral and documentary evidence at trial. If you represent the party challenging the deed, demand proof of the custom at the earliest stage and argue that the statutory presumption of a subsisting marriage applies until that proof is adduced.

The Supreme Court ended where it began: with a piece of paper and a question that remains unanswered. The deed sits in a file somewhere, its ink faded, its signatures still legible. But until the husband proves that the custom it represents is real — that it has been followed by the community for generations, that it is not unreasonable, that it is not opposed to public policy — the law presumes the marriage continues. And the wife's complaint under the Domestic Violence Act will be heard on its merits.