Strict Proof of Customary (Panchayati) Divorce under Section 29(2) Hindu Marriage Act: Commentary on Smt. Sushma v. Rattan Deep & Anr., 2025 DHC 10580-DB

I. Introduction

The Delhi High Court’s decision in Smt. Sushma v. Sh. Rattan Deep & Anr. (MAT.APP.(F.C.) 281/2024, decided on 28.11.2025) is an important addition to the line of authorities dealing with:

the relationship between codified Hindu marriage law and customary practices, particularly in rural and caste-based settings, and
the standard of proof required to establish a custom of “panchayati” divorce that can dissolve a Hindu marriage outside the court system.

The case arose from a challenge by the wife–appellant, Smt. Sushma, to a Family Court decree that:

declared her marriage with respondent no. 1, Sh. Rattan Deep, to be void under Section 11 read with Section 5(i) of the Hindu Marriage Act, 1955 (HMA), and
held that she had not validly divorced her previous husband by way of a claimed customary (panchayati) divorce within the Jat community.

The judgment directly engages with:

Section 4 (overriding effect of the HMA),
Section 5(i) (no living spouse at the time of marriage),
Section 11 (void marriages), and
Section 29(2) (saving of customary rights to obtain dissolution).

It also contains a clear discussion of the law of custom in Hindu law and the evidentiary burden on a party asserting the existence of a custom of divorce, drawing extensively from Supreme Court and High Court precedents.

A. Parties and background

Appellant: Smt. Sushma (wife in the impugned marriage).
Respondent no. 1: Sh. Rattan Deep (husband in the impugned marriage).
Respondent no. 2: Another party – from the context likely related to the proceedings but not central to the High Court’s reasoning.

Both the appellant and respondent no. 1 had been previously married:

The appellant claimed to have divorced her first husband, Sanjay, on 23.05.2009 through a customary “Panchayati” divorce prevalent in their Jat community.
The respondent no. 1 had obtained a decree of divorce from a competent court on 25.05.2009 from his earlier wife, with whom he had a daughter.

They subsequently married each other on 16.05.2010. From this marriage, a son, Daksh, was born on 15.03.2011.

B. Procedural history and core dispute

Respondent no. 1 initially filed a petition for divorce under Section 13(1)(ia) HMA (cruelty) but later withdrew it after settlement and resumption of cohabitation. The relationship again broke down, and the appellant left the matrimonial home on 12.10.2012.

Subsequently, respondent no. 1 claimed to have discovered on 25.09.2013 that the appellant had never been validly divorced from her first husband. He then filed a petition on 10.10.2013, seeking a declaration that his marriage with the appellant was null and void under Section 11 HMA due to contravention of Section 5(i) – i.e., that the appellant had a spouse living at the time of their marriage.

The appellant defended by asserting:

that she had in fact obtained a valid customary (panchayati) divorce from her first husband on 23.05.2009, and
that this fact was disclosed to and accepted by respondent no. 1 and his family before the marriage.

She also alleged cruelty and dowry demands, but the High Court’s judgment focuses on the status of her first marriage and the validity of the alleged customary divorce.

C. Issues framed

The Family Court framed two central issues, which were adopted and examined in the appeal:

Existence of custom: Whether a customary divorce is permissible in the caste/community of the parties (i.e., Jat community)?
Application of custom: If so, whether the appellant had in fact obtained a customary divorce from her first husband on 23.05.2009?

The outcome of these issues directly determined whether the second marriage violated Section 5(i) HMA and was therefore void under Section 11.

II. Summary of the Judgment

A. Family Court’s decision

The Family Court:

Held, on Issue 1, that the existence of a custom of “Panchayati” divorce in the community had been proved.
Held, on Issue 2, that the appellant had not proved that she had actually obtained such a customary divorce from her first husband because:
- No valid panchayatnama (recorded decision of the Panchayat) was produced; and
- The documentary and oral evidence was inadequate.
Concluded that the appellant had a living spouse at the time of the 2010 marriage, thereby contravening Section 5(i) HMA.
Declared the marriage between the appellant and respondent no. 1 to be null and void under Section 11 HMA.

B. High Court’s holdings

On appeal, the Division Bench (Justice Anil Kshetrapal and Justice Harish Vaidyanathan Shankar) dismissed the appeal and:

Set aside the Family Court’s finding on Issue 1 – holding that the custom itself was not proved, even though no cross-appeal or cross-objections had been filed by respondent no. 1 on this issue.
Affirmed the Family Court’s finding on Issue 2 – that the alleged customary divorce on 23.05.2009 (and the so-called divorce deed dated 25.09.2013) was not proved as a valid customary (panchayati) divorce.
Confirmed that:
- A Hindu marriage is void under Section 11 if either spouse had a living spouse at the time of the marriage (Section 5(i)).
- The appellant’s failure to prove a valid dissolution of her first marriage meant that the second marriage with respondent no. 1 was void ab initio.
Rejected the argument that the birth of a child and long cohabitation could “cure” or prevent the annulment of a void marriage.
Clarified that the petition for nullity had been filed within the prescribed period of limitation from the date of respondent no. 1’s knowledge of the subsistence of the earlier marriage.

Accordingly, the High Court dismissed the appeal and upheld the decree of nullity.

C. Core legal principle emerging

The decision underscores and sharpens the principle that:

Any claim that a Hindu marriage has been dissolved by “customary” or “Panchayati” divorce must be proved with strict, cogent, and preferably documentary and judicially recognised evidence; mere agreements between parties or unsupported oral testimonies—especially of interested witnesses—are insufficient to displace the statutory regime of the Hindu Marriage Act.

III. Statutory Framework and the Court’s Approach

A. Section 4 HMA – Overriding effect and displacement of custom

Section 4 HMA states that from the commencement of the Act:

Any text, rule, interpretation of Hindu law, or any custom or usage in force immediately before commencement ceases to have effect with respect to matters for which the Act has provided; and
Any other law in force immediately before commencement is similarly inoperative to the extent of inconsistency with the Act.

The Court emphasises that codified law ordinarily overrides custom. The only space left for custom is where the Act itself expressly saves

B. Section 29(2) HMA – Limited saving of customary divorce

Section 29(2) provides:

“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.”

The Court interprets this as follows:

HMA does not extinguish a pre-existing, legally recognised custom that allows dissolution of a Hindu marriage by custom.
However, for Section 29(2) to apply, such a custom must be:
- Validly proved as a legal custom; and
- Shown to be applicable to the parties and community in question.

Thus, customary divorce survives only in a narrow, carefully proved form. The burden lies squarely on the party asserting such custom.

C. Section 5(i) and Section 11 HMA – Void marriages

Section 5 lays down conditions for a valid Hindu marriage. Section 5(i) requires that:

“neither party has a spouse living at the time of the marriage.”

Section 11 declares that:

“Any marriage solemnised after the commencement of this Act shall be null and void … if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.”

The Court stresses:

A marriage in contravention of Section 5(i) is void, not merely voidable.
The decree of nullity under Section 11 is essentially declaratory – it recognises the void status; it does not “make” the marriage void.
Therefore, if the appellant was not validly divorced from her first husband when she married respondent no. 1, the second marriage was non-existent in the eyes of law from inception.

D. Order XLI Rule 22 & Order XLI Rule 3 CPC – Appellate review of findings

The Court invokes Order XLI Rule 22 read with Rule 3 CPC to justify interfering with the Family Court’s finding on Issue 1 (existence of custom), even in the absence of a cross-appeal or cross-objections from respondent no. 1. It holds:

A party cannot appeal only against an adverse finding on an issue when the ultimate decree is in its favour.
However, the appellate court has the power to:
- Examine the entire case, and
- Correct erroneous findings that are contrary to law, even if the party benefiting from the decree has not formally challenged those findings.

Thus, the High Court:

Corrected the Family Court’s legal error in recognising the existence of a custom of panchayati divorce among Jats, and
Did so to prevent that erroneous finding from becoming a precedent or being misused in future litigation.

IV. Precedents on Custom and Customary Divorce

The Court’s reasoning is anchored in a line of Supreme Court and High Court precedents that set stringent conditions for recognition of custom, particularly where the claimed custom contradicts codified personal law.

A. Bhimashya & Ors. v. Janabi (Smt) alias Janawwa (2006) 13 SCC 627

The Court quotes Bhimashya for the classic definition and attributes of custom:

A custom is a particular rule that has:
- existed from time immemorial (actually or presumptively);
- obtained the force of law in a particular locality; and
- may be contrary to general law.
For validity, custom must have four attributes:
1. Immemorial origin – it must be ancient;
2. Reasonableness – not arbitrary or oppressive;
3. Continuity – it must have continued without interruption; and
4. Certainty – clear in nature, locality, and persons affected.

In this case, the High Court uses Bhimashya to underline that a claimed custom of divorce:

cannot be a recent or sporadic practice adopted for convenience in a few cases; and
must be shown to operate as law within the community or locality over a long period, with certainty as to its procedure (such as Panchayat involvement, recorded decisions, etc.).

B. Gokal Chand v. Parvin Kumari, AIR 1952 SC 231

Gokal Chand clarifies that:

Custom derives its force from long usage acquiring the force of law.
The strict English rule that a custom must be so ancient that “the memory of man runneth not to the contrary” is not rigidly applied in India, but
The principle remains that long and consistent usage must be convincingly shown.

The High Court relies on this to emphasise that:

Few isolated instances of panchayati divorces within living memory, proved only through oral testimony, do not satisfy the requirement of long usage with the force of law.

C. Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041 (referred to as Uzagar Singh)

This decision (referred to by the High Court as Uzagar Singh) establishes:

The ordinary rule is that custom has to be proved as a fact.
Courts do not automatically take judicial notice of local or community-specific customs.
Section 57 of the Evidence Act is relevant – only certain kinds of “laws” or generally known customs might be judicially noticed, while specific community customs require proof.

The High Court applies this to insist that:

The Jat community’s alleged custom of panchayati divorce must be strictly proved through evidence, not assumed, and
Cannot be recognised based on sparse or self-serving testimony.

D. Saraswathi Ammal v. Jagadambal (1953 SCR 939) and the Privy Council line

Saraswathi Ammal reiterates the Privy Council’s view in Abdul Hussein Khan v. Bibi Sona Dero that:

The party setting up a custom must specifically allege and prove it.
Courts cannot act on:
- any theoretical notion of custom, or
- deductions from other customs.
Custom:
- Cannot be extended by analogy (a custom in one region or group does not automatically apply to another);
- Must be established inductively (from facts and instances), not deductively or by a priori reasoning;
- Is a matter of fact, not theory.

The High Court cites this to emphasise that:

Even if some Jat sub-groups in some districts have been found to follow a particular custom, it does not follow that all Jats in Delhi or elsewhere follow the same;
The appellant had to prove the specific, localized custom applicable to her community and village, which she failed to do.

E. Salekh Chand (Dead) By Lrs v. Satya Gupta & Ors. (2008) 13 SCC 119

While the judgment only briefly refers to Salekh Chand, that case too reiterates that:

Custom must be specifically pleaded and proved;
Courts cannot assume or infer customs in derogation of general law without solid evidence.

Its mention reinforces the continuum of strict scrutiny for claims based on custom.

F. Yamanaji H. Jadhav v. Nirmala (2002) 2 SCC 637

This is the key Supreme Court authority on customary divorce, explicitly applied by the High Court. Yamanaji holds:

Traditional Hindu law did not recognise divorce, marriage being a sacrament, except where recognised by custom.
Therefore, a custom permitting divorce is an exception to general Hindu law and:
- must be specifically pleaded, and
- must be strictly proved.
A mere agreement between spouses, or reliance on “consent divorce”, is not recognised unless:
- permitted by a statutory provision (e.g., Section 13B mutual consent divorce), or
- sanctioned by a duly proved custom.
Even if both parties or their counsel accept the existence of such a custom, the court cannot dispense with proof of the custom because:
- divorce is a matter of public policy, good morals and social interest;
- a divorce that is not in accordance with law is a practice opposed to public policy.

The High Court applies these principles directly:

Even if both spouses and community members accept they have “taken a Panchayati divorce”, the court cannot act on it unless the underlying custom is proved in law.
The document styled as a “Deed of Divorce” was in substance a mutual settlement agreement, not a product of a recognised customary procedure proven in Court – therefore it lacks legal force to dissolve the marriage.

G. Bhartiben w/o Amitbhai Vitthalbhai (Gujarat High Court)

The Gujarat High Court decision in Bhartiben is cited for the following propositions:

Where a party relies on a custom contrary to the general law of divorce, that custom:
- must be properly and specifically pleaded in the plaint or written statement;
- cannot be proved by oral evidence alone if no such pleading exists.

The Delhi High Court invokes this to emphasise:

The importance of precise pleadings describing:
- the nature of the alleged custom,
- its geographical and community scope,
- its procedural steps (especially for divorce), and
- its long-standing recognition.
The inadequacy of loosely stated or generalized claims of “Panchayati divorce” in the absence of detailed pleadings and supporting material.

V. The High Court’s Legal Reasoning

A. The burden and standard of proof for custom

Drawing from the above precedents, the Court reiterates the governing principles:

The party asserting a custom bears a heavy burden, especially where:
- the custom conflicts with codified law (such as HMA), or
- concerns dissolution of marriage, which has serious social policy implications.
It is not enough to produce:
- a couple of witness statements, or
- a private document styled as a “divorce deed”.
The Court “expects” the parties to produce, among other things:
- Judicial decisions that have recognised the claimed custom in that community or locality, and
- Evidence of past instances of customary divorce in the same community, demonstrating continuity and certainty.

This is a particularly significant articulation: the Court is effectively elevating the evidentiary threshold by signalling that documented and judicially recognised proof of custom is preferred, not merely oral assertions.

B. Evaluation of evidence led by the appellant

The appellant examined five witnesses:

RW-1 – herself;
RW-2 – her father (Ranbir Singh);
RW-3 – her maternal uncle (Balwan Singh);
RW-4 – Om Prakash, an 80-year-old former Deputy Sarpanch; and
RW-5 – Rajbir.

The Court’s assessment:

Interested witnesses (RW-2 and RW-3):
- Both are close relatives of the appellant.
- While their testimony is not automatically discarded, the Court considers them interested witnesses whose statements must be scrutinised with caution and corroboration.
RW-4 and RW-5 – absence from the alleged Panchayat:
- RW-4 (Deputy Sarpanch) did not attend the alleged Panchayat meeting that supposedly granted divorce to the appellant from her first husband.
- RW-5 similarly admitted that he never attended the alleged Panchayat.
- Thus, neither could give direct evidence of the specific alleged panchayati divorce.
General references to other Panchayati divorces:
- Witnesses mentioned some other instances of Panchayati divorce in the village.
- However, the Court held that such scattered references:
  - do not demonstrate long, continuous, and certain usage having the force of law, and
  - are insufficient without supporting documentary or judicial evidence.

Importantly, the appellant did not produce:

any text, community code, or authoritative writing on Jat custom permitting Panchayati divorce;
any Panchayat resolution or “panchayatnama” documenting decisions in specific customary divorce cases;
any prior judicial decision recognising Jat Panchayati divorce in the relevant locality.

On this basis, the Court found that the evidence fell well short of the strict requirements to establish a valid, binding custom under Indian law.

C. The so-called “Deed of Divorce” – mere agreement, not customary divorce

The appellant relied on a photocopy of a document marked “X”, referred to as a “Deed of Divorce” dated 25.09.2013 (though her claim of divorce was of 23.05.2009, indicating some inconsistency in dates).

The Court’s key findings on this document:

The document was never formally exhibited in evidence – only marked as “X”.
The original document was not produced.
It was scribed by one Ramchandar Dahiya and signed by three witnesses (Hawa Singh, Mahender Singh, and Rajpal), but:
- neither the scribe nor any of the three witnesses were examined in court.
On careful reading, the Court found it to be only a mutual agreement/settlement between the appellant and her first husband, recording that they had decided to “dissolve” their marriage by agreement.
Critically, there was:
- no reference to any Panchayat,
- no mention of any meeting of respectables or elders, and
- no suggestion that the document embodied a Panchayat’s decision.

Hence, the Court held:

“Such agreement does not fulfil the requirement of the customary divorce as alleged.”

In line with Yamanaji, a private agreement cannot serve as a divorce in Hindu law:

unless it is a mutual consent divorce under Section 13B HMA granted by a court; or
unless it is the outcome of a validly proved customary procedure (such as a recognised, documented Panchayat adjudication under a legally recognised custom).

D. Setting aside the Family Court’s finding on existence of custom

Though the Family Court had held that customary divorce is permissible in the caste/community of the parties (Issue 1), the High Court held this finding to be:

erroneous in law, and
liable to be set aside, despite there being no cross-appeal or cross-objections by the respondent.

It reasoned that:

The evidence did not meet the requirements laid down in the binding precedents for proving custom.
Allowing an unsubstantiated finding on such an important and potentially far-reaching matter (existence of a community-wide custom of Panchayati divorce) to stand on record would be contrary to law and could mislead future courts and litigants.

This underscores the Court’s proactive role in policing legal findings on custom, given their systemic impact beyond the immediate parties.

E. Affirming the finding that no customary divorce occurred

Even assuming, arguendo, that a custom of Panchayati divorce existed (which the Court ultimately rejected), the appellant still failed to prove that:

any actual Panchayat meeting was held to dissolve her first marriage; or
any recognised procedural form of customary divorce was followed.

The absence of:

a validly proved Panchayat resolution;
witnesses who actually attended the alleged Panchayat; and
credible documentary corroboration

meant that the specific customary divorce allegedly obtained on 23.05.2009 was not proved at all.

F. Consequence: the second marriage is void under Section 11 HMA

Given the failure to prove dissolution of the first marriage:

The appellant continued to have a living spouse (her first husband) on 16.05.2010; hence
The second marriage with respondent no. 1 was in contravention of Section 5(i).

Under Section 11, this contravention renders the marriage:

Null and void, not merely defective.
In law, the marriage is treated as non-existent from its inception.

The Court specifically rejects the appellant’s argument that:

the fact that the parties married in 2010 and had a child in 2011 should prevent the court from annulling the marriage.

It holds that:

Section 11 does not confer any discretion on the court where Section 5(i) is violated;
a void marriage cannot be validated by subsequent conduct or passage of time.

G. Limitation and timing of the husband’s petition

The Court notes that:

Respondent no. 1 came to know of the appellant not having obtained a divorce on 25.09.2013 (this date coincides with the date of the “divorce deed”).
He filed his petition under Section 11 HMA in October 2013.
This was within the “prescribed period of limitation”.

Although Section 11 itself does not specify a limitation period, the Court’s observation indicates:

It considered the petition to be filed within the relevant limitation framework (likely by reference to the Limitation Act’s provisions on declaratory relief and the date when the right to sue accrues – here, the date of knowledge).

In any event, limitation was clearly not a bar on the facts of this case.

VI. Simplifying Key Legal Concepts

A. What is “custom” in law?

In simple terms:

A custom is a long-standing practice followed by a community or group which:
- has been followed for so long and so consistently,
- that people in that community accept it as binding law.

For a court to treat something as a legal custom, it must be shown that:

It is old – not a recent innovation;
It is reasonable – not arbitrary, oppressive or immoral;
It has been followed continuously without interruption;
It is certain – people know exactly what it requires and to whom it applies.

Custom is not based on theory or speculation; it must be proved with facts and examples.

B. Customary divorce

Traditional Hindu law treated marriage as a permanent sacrament and largely did not allow divorce. Over time:

Certain communities developed local customs allowing marriages to be dissolved, including through:
- community councils (Panchayats),
- rituals, or
- oral “forms” of divorce.

After the Hindu Marriage Act came into force:

Divorce is generally possible only through court, on statutory grounds, following statutory procedures.
Section 29(2) keeps alive only those pre-existing customary rights of divorce that:
- can be properly proved as valid customs in law.

Therefore, if a couple claims they have divorced by “custom” or “Panchayat”, the court will insist that:

The custom itself is proved; and
The particular divorce was carried out in accordance with that custom (e.g., by a real Panchayat following recognised procedures, duly recorded).

C. Panchayati divorce

A “Panchayati divorce” refers to:

a divorce allegedly granted by a village or community council (Panchayat),
often outside the formal court system.

In law, such a divorce is valid only if:

The community has a legally recognised custom allowing the Panchayat to dissolve marriages; and
The divorce actually followed the established and proved Panchayat procedure.

A simple privately signed document is not a Panchayati divorce, even if it is called “Panchayati Talak” or “Divorce Deed”, unless it reflects a genuine and lawfully recognised Panchayat decision under a valid custom.

D. Void vs. voidable marriages

Void marriage (Section 11 HMA):
- Legally treated as if it never existed.
- Examples include:
  - bigamous marriage (spouse already married and living),
  - marriage within prohibited degrees of relationship (unless a valid custom permits it),
  - marriage between sapindas (again, unless saved by custom).
- The court can declare it void by a decree of nullity.
Voidable marriage (Section 12 HMA):
- Valid until annulled by a court; becomes void only when so decreed.
- Examples include marriages with fraud, coercion, or certain kinds of mental disorder.
- There are stricter limitation periods and procedural requirements.

In this case, the marriage was void because of contravention of Section 5(i) – the appellant already had a living spouse.

E. Decree of nullity under Section 11

A decree of nullity:

does not create the void status; it recognises it;
provides legal clarity and a formal judicial record that the marriage never existed in the eyes of law.

This distinction explains why subsequent cohabitation or children cannot make a void marriage valid.

F. Appellate power to correct findings without cross-appeal

Under Order XLI Rule 22 CPC:

A respondent who has not appealed can still:
- support the decree in his favour on any ground decided against him.
The appellate court, while deciding the appeal, can:
- examine all issues necessary for a just decision;
- modify or reverse findings even if no separate appeal has been filed against those findings.

Thus, even though respondent no. 1 did not cross-appeal against the Family Court’s recognition of a custom, the High Court was entitled to set aside that finding while affirming the decree of nullity.

VII. Impact and Broader Significance

A. Heightened evidentiary standard for customary divorce claims

The most significant contribution of this judgment is its emphatic insistence on strict proof for claims of customary divorce, especially:

Expectation that litigants will bring:
- judicial precedents recognising the relevant custom;
- documentary trails (panchayatnamas, resolutions, records of past instances); and
- clear, corroborated oral evidence, preferably from disinterested and knowledgeable community members.
Clear rejection of:
- mere private “divorce deeds” or agreements,
- generalised oral claims of “Panchayati divorces” without particulars, and
- unsupported assertions by interested relatives.

In practical terms, this judgment will:

Make it significantly harder for parties to rely on informal or undocumented customary divorces to validate subsequent marriages.
Push communities and individuals towards seeking formal judicial divorces under the HMA rather than relying on Panchayat-based divorces.

B. Clarifying the limited space for custom under the HMA

By reading Sections 4 and 29(2) together, the Court reinforces that:

The HMA is the primary source of law on Hindu marriage and divorce.
Customary rights to dissolve marriage are a narrow exception, strictly confined to:
- pre-existing customs,
- duly proved to exist and to apply to the parties.

This judgment therefore pushes the legal system unequivocally in favour of:

formal, codified, and court-based mechanisms for dissolving marriage; and
against unverified, community-based, or purely private arrangements purporting to end marriages.

C. Protection against misuse of “custom” to bypass statutory safeguards

Customary divorces, if allowed on weak evidence, could be misused to:

discard matrimonial obligations without judicial scrutiny;
bypass statutory protections for women and children relating to:
- maintenance,
- stridhan,
- residence,
- custody and welfare of children.

By raising the evidentiary bar and refusing to recognise a loosely asserted Panchayati divorce, the Delhi High Court:

prevents a backdoor erosion of the HMA’s standards; and
reinforces that the dissolution of marriage is a matter of public law and social policy, not mere private convenience or informal community arrangements.

D. Consequences for second marriages based on alleged customary divorces

The decision has a strong cautionary message:

Individuals who remarry on the basis of an alleged “Panchayati” or customary divorce should be aware that:
- courts may later treat their second marriage as void if the custom is not strictly proved; and
- merely having a divorce document signed by community members is not enough, unless the underlying custom and procedure meet the legal test.

Therefore, legal practitioners should:

advise clients to obtain formal decrees of divorce from competent courts; and
avoid relying solely on Panchayati divorces, particularly where property, legitimacy, and rights of children may later depend on the validity of the marriage.

E. Clarifying that children’s existence does not validate a void marriage

Although the judgment focuses on the status of the marriage and does not discuss in detail the status of the child, its reasoning makes clear that:

The birth of a child from the union does not convert a void marriage into a valid one.
The court’s duty is to apply Section 11 strictly if Section 5(i) is contravened.

In the broader statutory framework of the HMA (not elaborated in the judgment but relevant in practice), Section 16 protects the rights of children of void and voidable marriages. However, that is a separate statutory protection for children and does not affect the void status of the marriage itself.

F. Appellate courts’ responsibility to correct erroneous findings on custom

By setting aside the Family Court’s finding on Issue 1 despite the absence of a cross-appeal, the High Court signals that:

Erroneous recognition of custom is not a matter that can be lightly left uncorrected.
Such findings have a systemic ripple effect and may be cited to support later claims.
Appellate courts have a responsibility to ensure the integrity and coherence of the legal framework on custom, particularly where important policy areas like marriage and divorce are involved.

VIII. Conclusion

The Delhi High Court’s decision in Smt. Sushma v. Rattan Deep & Anr. is a robust reaffirmation—and sharpening—of long-standing principles governing custom and divorce under Hindu law:

It reiterates that the Hindu Marriage Act is the primary source of law on marriage and divorce among Hindus, and that prior customs are largely overridden, except where narrowly saved by Section 29(2).
It underscores that any claimed custom permitting dissolution of marriage must be:
- specifically pleaded,
- strictly proved, and
- supported by cogent, preferably documentary and judicially recognised evidence.
It treats “Panchayati divorces” with appropriate scepticism unless:
- the underlying custom is clearly established, and
- the actual divorce follows that custom in a documented and verifiable way.
It firmly applies Section 11 HMA, holding that a marriage in violation of Section 5(i) is void ab initio, unaffected by considerations of cohabitation or the birth of children.
It clarifies the appellate court’s power and duty to correct erroneous findings on custom even in the absence of cross-appeals, preserving doctrinal clarity for future cases.

In sum, the judgment sends a clear signal: informal, community-based or agreement-based divorces cannot be allowed to undermine the statutory scheme of the Hindu Marriage Act. Those who seek to rely on a custom of divorce must be prepared to meet a demanding evidentiary standard. For litigants, lawyers, and community leaders alike, the case highlights the importance of formal judicial dissolution of marriage and the limited, carefully policed space that remains for customary divorces in contemporary Hindu family law.