P&H HC | “Panchayati divorce has no recognition in law”; HC grants protection to the couple in spite of holding their marriage illegal

Punjab and Haryana High Court

Punjab and Haryana High Court: Alka Sarin, J., heard the instant filed by a couple seeking police help to restrain the respondents from interfering with the life and liberty of the petitioners. The Bench said,

Panchayati divorce has no recognition in the eyes of law as by the virtue of Section 4 of the Hindu Marriage Act, 1955 all customs and usages had ceased to have effect. 

The facts of the case were that the petitioners were both major. It was alleged that the relatives of petitioner 2 were against relationship of the petitioners. However, the petitioners had got married on 21-01-2021 at Gurudwara as per Sikh rites and ceremonies. Petitioner 1 was earlier married to one Mandeep Kaur and had taken a Panchayati Divorce on 19-06-2017, whereas, petitioner 2 was earlier married to one Harjinder Singh and had got a divorce under Section 13-B of the Hindu Marriage Act, 1955 vide judgment and decree dated 14-07-2000. The petitioners were apprehending danger to their life and liberty.

Petitioner 1, had alleged to have obtained a Panchayati divorce from his first wife. There was no decree of dissolution of marriage of petitioner 1 by a Court of competent jurisdiction and his first marriage remained subsisting in the eyes of law. Hence, the petitioners were alleged to have got married without petitioner 1 obtaining a legally valid divorce from his first wife.

The Bench observed that after enactment of the Hindu Marriage Act, 1955, marriages and divorce qua Hindus was governed by the procedure as set out in the Hindu Marriage Act, 1955. Section 4 of the said Act read as under :

“4. Overriding effect of Act – Save as otherwise expressly provided in this Act,(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;” 

Therefore, in the view of Section 4 of the Hindu Marriage Act,1955 all customs and usages ceased to have effect. Thus, the contention of the petitioners that petitioner 1 had sought and got a Panchayati divorce could not be accepted. The Bench stated,

“The alleged marriage itself between petitioner 1 and petitioner 2 would be illegal and against the provisions of the Hindu Marriage Act, 1955 inasmuch as this marriage had been contracted without the petitioner 1 being legally divorced.” 

However, in the light of Article 21 of the Constitution which provide that no person should be deprived of his life and liberty except in accordance with law and that the petitioners had approached this Court for protection of their life and liberty to live as a couple which could not be considered in the facts and circumstances of the present case, the Bench had granted them protection as individuals. Further, the petition was dismissed with the direction to the petitioners that if they apprehend any threat to their life or liberty, they would be entitled to approach the Police for redressal of their apprehensions regarding the same.[Nishan Singh v. State of Punjab,  2021 SCC OnLine P&H 523, decided on 27-01-2021]


Kamini Sharma, Editorial Assistant has put this story together.

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