Ahmedabad: The Gujarat high court has refused to declare the marriage of 24 years involving a couple from Bardoli valid because the husband took a customary divorce from his previous wife, which is not valid in their Leuva Patel community.
The couple wanted the court to validate their marriage as they were planning to immigrate to the US.
In a bid to go to the US, the man first married a woman belonging to his community and residing in the US in 1999. The woman went to the US with a promise to call him there. Instead, she prepared a deed of dissolution of marriage in California and sent it here for execution. The divorce deed was executed in March 2001. This was termed as ‘customary divorce’ by the man.
The man contracted a second marriage in Oct 2001 and got it registered with a marriage registrar in 2008. The couple has a 23-year-old son.
The second wife was also a divorcee. She first got married in 1996 and took a customary divorce from her husband before remarrying. Her first husband passed away in 2007. In the absence of a divorce decree, the question about the validity of her second marriage arose.
After his failure in shifting to the US through a matrimonial route, the man initiated the process for an F-3 category visa in 2008-09, but their respective customary divorces in the first marriages were a hurdle, and they were required to get divorce decrees from a court. The man got such a court decree showing his divorce from his first wife in 2023. However, the US consulate insisted on the proof of the validity of their present marriage, and the couple was required to get such a declaration from a court.
Accordingly, the couple applied to a family court in Bardoli under the provisions of the Hindu Marriage Act. On April 7, the family court turned down their application, compelling the couple to knock on HC’s doors.
After hearing their case, the bench of Justice Biren Vaishnav and Justice Hemant Prachchhak turned down their appeal on the ground that customary divorce is not valid among the Leuva Patel community. “In our view, the plaintiff has miserably failed to prove at the first instance that there was any such custom prevailing in the Leuva Patel community to obtain divorce by execution of a document in the presence of the Panchas and secondly, whether such alleged customary divorce was continuously and uniformly observed for a long time in the Leuva Patel community and was not opposed to public policy.”
Moreover, the court said, “Unless and until the marriage between the appellant — wife and her earlier husband was dissolved legally, the husband had no right to contract a second marriage and since the earlier divorce was not recognised by law, the parties continued to be under marital bond.”