Signed a customary divorce deed. The Supreme Court says it's not enough.

One Customary Divorce Deed. Two Marriages. A Supreme Court Reset.

Sanjana Kumari and Vijay Kumar married in 2011. By 2018, she was before a magistrate in Kandaghat, Himachal Pradesh, seeking protection under the Domestic Violence Act. He had remarried. The hinge of the entire case was a single piece of paper: a "customary divorce deed" dated January 5, 2014, signed by family members and Gram Panchayat members. Vijay Kumar argued the deed ended the marriage. Sanjana Kumari said it was a sham. The stakes? Brutal. If the deed was valid, she was a stranger to the man she married — with no right to maintenance or protection. If it was not, she was a wife entitled to both.

The Judicial Magistrate First Class, Kandaghat, refused to dismiss her complaint and granted interim maintenance. The High Court of Himachal Pradesh at Shimla reversed that in August 2022, quashing the entire DV proceedings on the strength of that unproved deed. The Supreme Court of India, in Sanjana Kumari v. Vijay Kumar, has now reset the board. The message is sharp: a customary divorce deed is not a magic wand. You cannot wave it at the threshold and expect a criminal complaint to vanish.

The deed that did too much

The facts are simple. A marriage in 2011. A deed in 2014. A remarriage in 2018. A complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2005, in 2018. The husband moved an application before the JMFC to dismiss the complaint, relying on the customary divorce deed. The magistrate rejected it — and granted interim maintenance. The husband then approached the High Court under Section 482 CrPC, invoking its inherent powers to quash the proceedings.

The High Court accepted the deed as valid. It held that the marital relationship had ceased. It quashed the complaint entirely and set aside the interim maintenance. The wife appealed to the Supreme Court.

What the High Court missed

The Supreme Court, in a judgment authored by Justice Surya Kant with Justice Dipankar Datta concurring, did not mince words. The High Court had assumed the validity of the customary divorce deed without requiring the husband to prove the custom. That, the Bench held, was a fundamental error.

The Court turned to Section 29(2) of the Hindu Marriage Act, 1955. That provision saves any right recognised by custom to obtain the dissolution of a Hindu marriage. It is an exception to the general law of divorce under Sections 11 and 13 of the Act. But an exception must be pleaded and proved. The Court cited three precedents in a clean line: Yamanaji H. Jadhav v. Nirmala (2002) 2 SCC 637, Subramani v. M. Chandralekha (2005) 9 SCC 407, and Swapnanjali Sandeep Patil v. Sandeep Ananda Patil (2020) 17 SCC 510. Each case held the same thing: a customary divorce must be specifically pleaded and established by cogent evidence. A deed alone is not enough. Even if both counsel orally agree to its validity, the court cannot accept it without proof of the custom.

I have seen this mistake before. The Court observed that the prevalence of a customary divorce contrary to the general law of divorce must be specifically pleaded and established by the person propounding such custom. The husband had not done that. The High Court had not asked him to.

The presumption that matters

The Bench laid down the operative principle: unless the party relying on a customary divorce deed proves the prevalence of the custom in conformity with public policy — and the consequential enforceability of the deed — there is a statutory presumption of a subsisting marriage between the parties. A complaint under the D.V. Act cannot be quashed at the threshold on grounds of non-maintainability based on an unproved customary divorce deed.

This is the critical move. The Court did not say the deed was invalid. It said the High Court could not assume it was valid. The validity of a customary divorce is a question of fact. It must be adjudicated by a court of competent jurisdiction after proper pleading and evidence. It cannot be determined merely on an application for dismissal.

THE PLAY: If you are defending a DV complaint by relying on a customary divorce deed, you must specifically plead and prove the custom with evidence — the deed alone will not get the complaint quashed at the threshold.

What the Supreme Court actually ordered

The operative order is precise. The appeal was allowed in part. The High Court order dated August 31, 2022, was set aside. The case was remitted to the High Court to decide CRMMO No. 428 of 2019 afresh, without reliance on the customary divorce deed dated January 5, 2014. The validity of that deed was left to be determined by a court of competent jurisdiction. The interim maintenance 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.

Notice what the Court did not do. It did not declare the deed void. It did not hold that customary divorces are invalid. It simply said: you cannot short-circuit the process. A DV complaint cannot be killed by an unproved piece of paper.

The obiter that opens a door

The Court also made an interesting observation. In peculiar facts and circumstances, the validity of a customary divorce deed can be examined even by a court other than the Civil Court in some collateral proceedings. This opens the door for DV courts or criminal courts to adjudicate customary divorce validity in appropriate cases. But the Court explicitly declined to decide this question in the present proceedings. It remains a live issue for another day.

Why this matters in practice

For advocates, the takeaway is procedural. If you are defending a DV case and your client has a customary divorce deed, do not assume the court will accept it. You must lead evidence of the custom. You must plead it specifically. You must show that the custom is uniformly observed for a long time, is not unreasonable, and is not opposed to public policy. The deed is evidence, not proof.

For founders and CFOs, the lesson is about risk. Marital status affects succession, inheritance, tax filings, and employee benefits. A customary divorce deed that has not been tested in court is a liability. If you are advising a company where a key employee or founder relies on such a deed, flag the risk. It may not hold up.

For the wife in this case, the immediate relief is restored maintenance. But the larger battle — the validity of the deed itself — remains. The High Court will now decide CRMMO No. 428 of 2019 afresh, without relying on the deed. The husband will have to prove the custom. If he cannot, the DV proceedings will continue. If he can, the deed may yet stand. But the Supreme Court has made one thing clear: the presumption is of a subsisting marriage. The burden is on the person who says otherwise.

The bottom line

A customary divorce deed is not a get-out-of-DV-free card. You must plead the custom, prove the custom, and satisfy the court that the custom is valid. Until you do, the marriage is presumed to exist, and the protections of the Domestic Violence Act remain alive.