A signed divorce deed. No proof of custom. The Supreme Court says it's invalid.

One Deed, Two Marriages, and a Question the High Court Never Asked

Sanjana Kumari married Vijay Kumar in 2011. By 2018, she was in a courtroom in Kandaghat, Himachal Pradesh, asking for protection and maintenance under the Domestic Violence Act. Vijay Kumar had an answer: a piece of paper dated January 5, 2014, that he called a customary divorce deed. He said the marriage was over. He had remarried in 2018. He wanted the complaint thrown out.

The Judicial Magistrate First Class, Kandaghat, District Solan, refused to play along. The Magistrate rejected Vijay Kumar's application to dismiss the complaint and granted Sanjana Kumari interim maintenance of Rs. 3,000 per month. That should have been the start of a trial on facts. Instead, it became a two-year detour through the High Court of Himachal Pradesh at Shimla, which took the customary divorce deed at face value, quashed the entire DV Act proceeding, and set aside the maintenance order.

The Supreme Court of India, in Sanjana Kumari v. Vijay Kumar, has now reversed that. The question it asked was simple: can a court quash a domestic violence complaint based on a customary divorce deed that nobody has ever proved is valid?

The answer, delivered by a Bench of Justice Surya Kant and Justice Dipankar Datta on September 18, 2023, is a firm no. And in answering it, the Court laid down a rule that every advocate handling matrimonial disputes needs to know.

The marriage, the deed, and the complaint

Sanjana Kumari and Vijay Kumar were married under Hindu law in 2011. By 2014, according to Vijay Kumar, the marriage had been dissolved by a customary divorce deed executed before family members and Gram Panchayat members. He did not file for divorce under Section 13 of the Hindu Marriage Act, 1955. He did not seek a decree of nullity under Section 11. He relied on a deed.

In 2018, Vijay Kumar remarried. That same year, Sanjana Kumari filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005, before the Judicial Magistrate First Class, Kandaghat. Vijay Kumar moved an application to dismiss the complaint, arguing that the customary divorce deed meant the marriage no longer existed, and therefore the DV Act could not apply.

The JMFC rejected that application. The Magistrate also granted Sanjana Kumari interim maintenance of Rs. 3,000 per month. That order was passed on June 18, 2018.

What the High Court did — and why it was wrong

Vijay Kumar then moved the High Court of Himachal Pradesh at Shimla under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash the DV Act proceedings. The High Court, by order dated August 31, 2022, accepted the customary divorce deed as valid, quashed the complaint, and set aside the interim maintenance order.

The High Court's reasoning appears to have been straightforward: the deed existed, it was signed, and therefore the marriage was dissolved. The Court did not ask for proof of the custom. It did not require Vijay Kumar to plead or establish that his community recognised customary divorce. It simply assumed the deed was good.

That assumption, the Supreme Court held, was fatal.

The rule from three precedents

The Supreme Court did not write on a clean slate. It had three precedents lined up, each saying the same thing.

In Yamanaji H. Jadhav v. Nirmala, (2002) 2 SCC 637, the Court held that a customary divorce deed must be specially pleaded and established by the party propounding such custom. Courts cannot accept customary divorce without proper proof, even if both parties' counsel agree on its validity. The custom must be proved because it is contrary to general Hindu law, which treats marriage as a sacrament.

In Subramani v. M. Chandralekha, (2005) 9 SCC 407, the Court reinforced the point: the prevalence of customary divorce contrary to general law must be specifically pleaded and established by the person propounding such custom. The party must plead the existence of a custom in their community to dissolve marriage by mutual consent and prove it by leading cogent evidence.

In Swapnanjali Sandeep Patil v. Sandeep Ananda Patil, (2020) 17 SCC 510, the Court took the same view.

Three cases. One consistent rule: customary divorce cannot be presumed. It must be proved.

Section 29(2) — the savings provision that is not a free pass

The provision that preserves customary divorce is Section 29(2) of the Hindu Marriage Act, 1955. It reads: "Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act."

This is a savings clause. It does not create a right. It preserves existing customary rights. But the party relying on it must show that the custom exists, that it has been uniformly observed for a long time, and that it is not unreasonable or opposed to public policy.

The Supreme Court, in Sanjana Kumari, held that until such proof is adduced, there is a statutory presumption of subsisting marriage. The High Court, by assuming the validity of the customary divorce deed without any evidence, had effectively reversed that presumption.

The doctrine the Court applied

The ratio decidendi of this judgment is straightforward, and it is worth stating clearly:

First: A party relying on a customary divorce deed under Section 29(2) of the Hindu Marriage Act, 1955, is obligated to establish that such custom has been uniformly observed for a long time, is not unreasonable or opposed to public policy, and must specifically plead and prove the same through cogent evidence. Until such proof is adduced, the marriage is presumed to subsist.

Second: A complaint under Section 12 of the DV Act cannot be quashed at the threshold on the ground of non-maintainability based on a customary divorce deed whose validity has not been established through proper pleadings and evidence. The High Court under Section 482 CrPC cannot assume the validity of a customary divorce deed and quash DV proceedings on that basis.

THE PLAY: If you are defending a DV Act complaint by relying on a customary divorce deed, you must plead the custom specifically and lead evidence to prove it. A deed alone is not enough. If you are prosecuting, object at the threshold if the other side produces a customary divorce deed without any supporting evidence of the custom.

What the Supreme Court ordered

The Supreme Court allowed the appeal in part. It set aside the High Court's order dated August 31, 2022. It remitted the matter to the High Court to decide CRMMO No. 428 of 2019 afresh, with a specific direction: the High Court must not place any reliance on the customary divorce deed dated January 5, 2014.

The question of the validity of the customary divorce deed was left to be determined by a court of competent jurisdiction — which could be a civil court, or, as the Court observed in obiter, possibly another court in collateral proceedings depending on the facts.

The interim maintenance of Rs. 3,000 per month granted by the JMFC was restored. Arrears were to be paid within one month. The parties were directed to appear before the High Court on October 30, 2023.

Why this matters in practice

For advocates handling matrimonial disputes, this judgment is a procedural shield. The instinct of many litigants — and some courts — is to treat a customary divorce deed as a magic document that ends the marriage instantly. This judgment says: no. A deed is just a piece of paper until the custom behind it is proved.

For CFOs and founders, the lesson is different but equally important. If you are involved in a family dispute — whether as a party or as a stakeholder in a family-run business — do not assume that a customary divorce deed signed by family members and panchayat members is legally effective. It may be challenged, and if it is, you will need evidence of the custom, not just the deed.

The Supreme Court also left open an interesting question: can a court other than a civil court adjudicate the validity of a customary divorce deed in collateral proceedings? The Court said that ordinarily it is a question of fact for a civil court, but in peculiar facts and circumstances, it may be examined by another court. That is a door left ajar, and it may be pushed open in future cases.

The bottom line

If you are relying on a customary divorce deed, you must plead the custom and prove it with evidence. If you are opposing one, demand that proof at the earliest stage. A deed alone is not a divorce.