Section 29(2) Customary divorce - Sp Civil Application No. 1260 of 2005 : HIGH COURT , AHMEDABAD, Twinkle Rameshkumar Dhameliya

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Oct 4, 2005, 3:32:50 AM10/4/05
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Special Civil Application No. 1260 of 2005

Decided On: 23.02.2005

Appellants: Twinkle Rameshkumar Dhameliya
Vs.
Respondent: Superintendent

Hon'ble Judges:
Jayant Patel, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Purva R. Bhatt, Adv. for Petitioner
No. 1

For Respondents/Defendant: M.A. Shaikh, Adv.

Subject: Family

Catch Words:
Community, Custom, Dissolution of Marriage, Hindu, Marriage, Wife

Acts/Rules/Orders:
Hindu Marriage Act, 1955 - Section 29(2)

JUDGMENT

Jayant Patel, J.

1. Rule, Mr. M.A. Shaikh, Learned Additional Central Government
Standing Counsel waives service of rule on behalf of the respondent
authorities. With the consent of learned counsel for the parties matter
is taken up for final hearing today.

2. The short facts of the case are that on 17.4.2000 the petitioner
married to one Chandulal Kunvarjibhai Kanani and the said marriage
registration is registered with the Sub-Registrar, Rajkot. It appears
that the petitioner applied for passport on her name as married to
Chandulal Kanani. The respondent passport authorities on the basis of
said application has issued passport bearing No. B 3283015 on
10.1.2001. It is the case of the petitioner that thereafter there were
some disputes between the petitioner and her husband and as both belong
to Patel community in the presence of the relatives and leaders of the
Patel Community it was decided to put an end to the marriage and
therefore divorce deed has been executed on 28.1.2002 in the presence
of notary and the said divorce deed is also executed in the presence of
two relatives of the petitioner as well as two relatives of her
ex-husband Chandulal Kanani. It is also the case of the petitioner that
thereafter she has married with Rameshkumar Jadavbhai Dhameliya on
17.2.2002. The petitioner has also applied for registration of
marriage. However, the certificate from the Sub-Registrar of Marriages
is awaited. As the petitioner is desirous to have the new passport
showing her name as wife of Rameshkumar Jadavbhai Dhameliya the
petitioner has applied for such purpose to the passport authorities. It
appears that as per letter, dated 27.9.04 the petitioner is
communicated by the passport authority that divorce deed duly
registered by the Sub-Registrar is required to be produced. It is under
these circumstances the petitioner has approached this court by
preferring this petition.

3. I have heard Mr. Bhatt for the petitioner and Mr. Shaikh, Ld. Addl.
Central Govt. Standing Counsel for the respondent authorities. It
appears that on facts there is no dispute that the petitioner has made
the application. However, in the affidavit in reply filed on behalf of
the passport authority at para 4 it has been stated as under:

"I further say and submit that along with her application for
passport dated 17.9.04 the petitioner had submitted divorce deed from
her first husband duly notorised which is not acceptable for the issue
of passport. As per Passport Manual 2001, issued by the Govt. of India,
Ministry of External Affairs, CPV Divn, New Delhi, Chapter VIII Page
No.56 para No.C(i) Divorce duly authenticated by court is required for
reissue of passport in remarried name. Annexed hereto and annexed as
Annexure "A" is a xerox copy of the relevant portion."

The relevant extract from the passport manual upon which reliance is
placed on behalf of respondent authorities reads as under:

"C. Remarried applicants applying for change of name/change of
spouse's name should be asked to produce:

i) Divorce deed duly authenticated by court or Death
certificate as the case may be in respect of the first spouse; or

ii) Attested copy of the marriage certificate issued by the
Registrar of Marriages or an affidavit signed by both husband and wife
along with a joint photograph with the present spouse;

iii) Photocopy of the present spouse's passport, if any,"

4. Mr. Shaikh for respondent for passport authorities submitted that
the divorce deed duly authenticated by the court or the death
certificate, as the case may be, in respect of the first spouse can
only be said as sufficient and reliable proof for acceptance of the
passport authority. Therefore, it has been submitted that in the
absence of divorce deed duly authenticated by the court it can not be
said that there is a valid divorce of the petitioner with Shri
Chandulal Kanani and therefore the passport authority has called for
the said document.

5. It appears that the instructions issued in the passport manual as
such proceed on the basis that the divorce deed is required to be
authenticated by the court in all cases. Had it been the case of
seeking divorce or for a divorce through court, there may be the order
of the competent court. It is admitted position that the petitioner and
her first husband Chandulal Kanani both are Hindus and belonging to
Patel Community. Section 29(2) of the Hindu Marriage Act, 1955 provides
that "Nothing contained in the Hindu Marriage 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 Hindu Marriage Act."
Therefore, if the customary divorce is permissible for dissolution of
Hindu marriage the same as such is saved even as per the provisions of
Hindu Marriage Act. There is no challenge to the divorce! deed itself
on the ground that the customary divorce in Hindu Patel community is
not permissible. The only aspect objected is that such divorce deed
must be authenticated by the court. Therefore, even if the divorce deed
is entered into between the husband and the wife where customary
divorce is permissible, it can not be said that in all cases such
divorce deed can not be recognised as the proof divorce or dissolution
of Hindu Marriage between wife and the husband unless so authenticated
by the court. If the passport officer insists for authenticated divorce
deed through the court in all cases of divorce, then in that case, the
effect of section 29(2) of Hindu Marriage Act for saving the customary
divorce shall stand nullified. If any dispute is raised by any person
contending that such customary divorce is not permissible or
dissolution of Hindu Marriage as per customary divorce is not based on
any custom prevailing in the community it may stand on different
footing, but! in the absence of such dispute, it can not be said that
in al! l cases wherever there is s divorce or dissolution of marriage
such deed must be authenticated by the court and in the absence thereof
same can not be accepted by the passport authority. At the most, with a
view to ascertain the existence of any dispute or otherwise pertaining
to the dissolution of Hindu Marriage as per custom prevailing in the
community, the passport officer may insist for giving a public
advertisement in the newspaper inviting objections by any person before
accepting the dissolution of marriage as valid. He may also insist for
the affidavits of two elders of the community who have signed as
witnesses for such divorce deed. If any objection is raised by any
person to such dissolution of marriage, then possibly the passport
officer may be justified in insisting for authentication of divorce
deed by the court, but, if no objections are raised in response to the
public notice and if the affidavits of two elders of the community who
have signed the divorce deed as wit! nesses are produced, the same can
be said as sufficient proof for accepting the divorce deed for the
purpose of issuance of passport leaving aside the other aspects which
may arise between the parties to the divorce deed. Even otherwise also
the registration of such divorce deed before Sub Registrar is not
compulsory and therefore not to accept the divorce unless registered
before Sub Registrar can not be said as proper in view of the present
facts and circumstances and the observations made earlier.

6. In view of the aforesaid discussion, the stand taken by the passport
authority for insisting for divorce deed duly registered before Sub
Registrar or authenticated by the court, in the present case can not be
sustained since the customary divorce can be said as permissible unless
it is objected by either party to the divorce deed or any person who is
directly affected by the divorce deed.

7. Since it is also the case of the petitioner that after the customary
divorce, she has married with Rameshkumar Jadavbhai Dhameliya and the
affidavit is produced and the application for registration is pending
before issuance of passport to the petitioner on the name of Twinkle
Natvarlal Sabhaya as wife of Rameshkumar Jadavbhai Dhameliya, the
passport officer may insist for the production of registration
certificate of marriage of the petitioner.

8. In view of the above discussion, the communication of the respondent
passport authority insisting for production of divorce deed duly
registered by the Sub Registrar or authenticated by the court is
quashed and set aside with the direction to the passport authority to
consider the application of the petitioner in the light of the
observations made by this court hereinabove.

It is clarified that as observed earlier in this judgment, the passport
authority may insist for public notice in respect of divorce deed for
dissolution of marriage between the petitioner and Chandulal Kanani and
may also insist for the affidavits of two elders of the community who
are the signatories for the divorce deed and if no objection is filed
by any person in response to the public notice the passport officer
shall accept the divorce deed for dissolution of marriage between the
petitioner and Chandulal Kanani as legal and valid and thereafter if
the marriage registration certificate is produced by the petitioner for
her marriage with Rameshkumar Jadavbhai Dhameliya, the passport officer
shall issue passport to the petitioner after examining the other
aspects in accordance with law but as if she is the wife of Rameshkumar
Jadavbhai Dhameliya. The aforesaid exercise shall be completed as early
as possible preferably within a period of tw! o months from the receipt
of writ of this court.

It is made clear that in any case if any objections are filed in
response to public notice pertaining to divorce deed, it would be open
to the passport officer to insist for authenticated divorce deed from
the competent court before issuing the passport.

9. Petition is allowed to the aforesaid extent. Rule is partly made
absolute accordingly. Considering the facts and circumstances, there
shall be no order as to costs.

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