Gayatri vs Sripal Singh

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 16.03.2026
Pronounced on: 29 .05 .2026

+ MAT.APP. (F.C.) 236/2019, CM APPL.8446/2020, CM
APPL.29030/2025, CM APPL.40643/2019

GAYATRI .....Appellant
Through: Ms. Meera Kaura Patel
(DHCLSC) with Ms.
Ritika Saini, Ms. Monika
Chaudhary & Mr. Prince
Goyal, Advs. along with
Appellant in person.
versus

SRIPAL SINGH .....Respondent
Through: Mr. Jaskaran Singh, Adv

( through VC )
CORAM:
HON'BLE MR. JUSTICE VIVEK CHAUDHARY
HON'BLE MS. JUSTICE RENU BHATNAGAR

J U D G M E N T


CM.APPL 40643/2019 (delay)

1. The present application has been filed by the appellant under
Section 5 of the Limitation Act, 1963 read with section 151 of the
Code of Civil Procedure, 1908, seeking condonation of delay of 337
days in filing the accompanying appeal.
2. Having considered the averments made in the application and
noting that no objection is raised by the learned counsel appearing for
the respondent during the course of hearing, this Court is satisfied that
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sufficient cause has been shown for condonation of delay.
Accordingly, the delay of 337 days in filing the present appeal is
condoned.
3. The present application stands disposed of.
MAT.APP. (F.C.) 236/2019, CM APPL. 40642/2019 (Interim relief)
& CM APPL. 18837/2023 (U/s 25 HMA)

4. The present appeal assails the Judgment dated 23.07.2018
(“impugned judgment”) passed by the learned Principal Judge, Family
Courts, West District, Tis Hazari Courts, Delhi (“Family Court”) in
HMA No. 1709/2018, whereby the marriage between the
appellant/wife and respondent/husband was declared null and void ab
initio under Section 11 of the Hindu Marriage Act, 1955 (“HMA”), on
the ground that it contravened Section 5 (i) thereof.
5. The facts necessary for the adjudication of the present appeal
are that the marriage between the parties was solemnized on
21.06.2013, in accordance with Hindu rites and customs. At the time
of marriage, respondent-husband was a widower with three children
from his previous marriage. The appellant had also been previously
married. Her case is that her previous marriage stood dissolved
through a customary divorce before a Panchayat, and that she had not
been in contact with her former husband for over 25 years. It is also an
admitted position, even before the Family Court, that she had not
taken divorce from her previous husband from any competent court.
6. The respondent-husband filed a petition under Section 11 of the
HMA seeking a declaration that the marriage was void on account of
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the subsistence of the appellant’s earlier marriage. The Family Court
allowed the petition and declared the marriage between the parties
herein as null and void on the ground that the appellant-wife had failed
to prove that she was legally divorced from her former husband at the
time of marriage with the respondent. Aggrieved thereby, the present
appeal is filed.
7. Learned counsel for the appellant has questioned the correctness
of the view as expressed in the impugned judgment, asserting that the
Family Court gravely erred in declaring the marriage null and void by
ignoring material evidence on record, particularly the testimony of
RW-2 (Padma), which establishes that the respondent-husband was
fully aware of the appellant’s prior marriage and customary divorce.
Additionally, she places reliance on Section 23(1)(a) of the HMA to
contend that a party cannot be permitted to take advantage of his own
wrong. It is submitted that the respondent, having entered into the
marriage with full knowledge of the appellant’s prior marriage and
alleged customary divorce, is precluded from seeking a declaration of
nullity on that very ground. Secondly, it is submitted that the Family
Court failed to appreciate that customary divorces, especially those
effected through Panchayat in accordance with community practices,
do not mandatorily require formal documentation, and the appellant’s
status as a divorcee stood duly disclosed and accepted at the time of
marriage between the parties.
8. It is further submitted that the appellant, an illiterate and
economically dependent woman, is misled and prejudiced by the
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respondent’s conduct and the impugned judgment, which not only
overlooks the subsisting marital relationship and cohabitation between
the parties but also disregards her entitlement to maintenance under
settled principles of law. Lastly, it is submitted that even if the
marriage is held to be void , the appellant remains entitled to
maintenance pendente lite under Section 24 of the HMA or in the
alternative, to permanent alimony under Section 25 of the HMA,
having regard to the facts and circumstances of the case. Reliance is
placed upon Sukhdev Singh v. Sukhbir Kaur , 2025 INSC 197 ,
wherein the Supreme Court held that a spouse in a void marriage may
seek maintenance pendente lite or permanent alimony under Section
24 or 25 of the HMA, depending upon the facts and circumstances of
the case. However, grant of such relief is always discretionary.
9. On the other hand, learned counsel for the respondent submits
that the appellant has utterly failed to discharge the burden of proving
dissolution of her prior marriage, as no cogent or admissible evidence
of any customary divorce was produced before the Family Court, and
the sole testimony of RW-2 is insufficient to establish such a plea.
Secondly, it is urged that unless a valid customary divorce is proved,
the earlier marriage, can only be dissolved in accordance with
statutory provisions, otherwise subsequent marriage would be
rendered void ab initio due to subsistence of the earlier marriage.
Lastly, it is submitted that the appellant, whose former husband is
admittedly alive and with whom no legally recognized divorce has
taken place, cannot claim any legal rights against the respondent,
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including maintenance.
10. Before proceeding further, it is appropriate to take note of
statutory provisions of the HMA:
“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;
(b) any other law in force immediately before the
commencement of this Act shall cease to have
effect in so far as it is inconsistent with any of the
provisions contained in this Act.
HINDU MARRIAGES
5. Conditions for a Hindu marriage .— A
marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled,
namely:—
(i) neither party has a spouse living at the time of
the marriage; …….
xxxxxx
11. Void marriages.— Any marriage solemnised
after the commencement of this Act shall be null
and void and may, on a petition presented by either
party thereto [against the other party], be so
declared by a decree of nullity if it contravenes any
one of the conditions specified in clauses (i), (iv)
and (v) of section 5.
xxxxxx
29. Savings.—( 1) A marriage solemnized between
Hindus before the commencement of this Act,
which is otherwise valid, shall not be deemed to be
invalid or ever to have been invalid by reason only
of the fact that the parties thereto belonged to the
same gotra or pravara or belonged to different
religions, castes or sub-divisions of the same caste.
(2) Nothing contained in this Act shall be deemed
to affect any right recognised by custom or
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conferred by any special enactment to obtain the
dissolution of a Hindu marriage, whether
solemnized before or after the commencement of
this Act.
(3) Nothing contained in this Act shall affect any
proceeding under any law for the time being in
force for declaring any marriage to be null and
void or for annulling or dissolving any marriage or
for judicial separation pending at the
commencement of this Act, and any such
proceeding may be continued and determined as if
this Act had not been passed.
(4) Nothing contained in this Act shall be deemed
to affect the provisions contained in the Special
Marriage Act, 1954, (43 of 1954) with respect to
marriages between Hindus solemnized under that
Act, whether before or after the commencement of
this Act.”

11. Section 5 (i) of the HMA mandates that neither party should
have a spouse living at the time of marriage. A contravention thereof
renders the marriage void under Section 11 thereof.
12. While Section 4 of the HMA gives overriding effect to the Act
over prior customs, Section 29(2) saves the right to obtain dissolution
of marriage through custom. However, it must be a valid custom and
also strictly proved.
13. In Bhimashya v. Janabi, (2013) 13 SCC 627 , the Supreme
Court held that a valid custom must be ancient, certain, reasonable,
and continuously observed. The relevant portion is reproduced herein
below-
“25. A custom is a particular rule which has
existed either actually or presumptively from time
immemorial and has obtained the force of law in a
particular locality, although contrary to or not
consistent with the general common law of the
realm. A custom to be valid must have four
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essential attributes. First, it must be immemorial;
secondly, it must be reasonable; thirdly, it must
have continued without interruption since its
immemorial origin, and fourthly, it must be certain
in respect of its nature generally as well as in
respect of the locality where it is alleged to obtain
and the persons whom it is alleged to affect.”

14. In Saraswathi Ammal v. Jagadambal, (1953) 1 SCC 362 , the
Supreme Court held that a custom may be proved through
authoritative texts, judicial recognition, or long and continuous usage.
The burden to establish a valid custom contrary to codified law lies
heavily on the party asserting it, and such custom cannot be presumed,
extended by analogy, or established on mere assumptions. The
relevant portion is reproduced herein below-
“28. The correct approach to a case where a party
seeks to prove custom is the one pointed out by
their lordships of the Privy Council in Abdul
Hussein Khan v. Soma Dero. It was there said that
it is incumbent on a party setting up a custom to
allege and prove the custom on which he relies and
it is not any theory of custom or deductions from
other customs which can be made a rule of
decision but only any custom applicable to the
parties concerned that can be the rule of decision
in a particular case. It is well settled that custom
cannot be extended by analogy. It must be
estabished inductively, not deductively and it
cannot be established by a priori methods. Theory
and custom are antitheses, custom cannot be a
matter of mere theory but must always be a matter
of fact and one custom cannot be deduced from
another. A community living in one particular
district may have evolved a particular custom but
from that it does not follow that the community
living in another district is necessarily following
the same-custom.”

15. Similarly, in Yamanaji H. Jadhav v. Nirmala, (2002) 2 SCC
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637 , it was held that customary divorce, being an exception to general
law, must be specifically pleaded and strictly established holding as
follows-
“7. In the view that we are inclined to take in this
appeal, we do not think it is necessary for us to go
into the contentions advanced by the learned
counsel for the parties in this case, because we find
that the courts below have erroneously proceeded
on the basis that the divorce deed relied upon by
the parties in question was a document which is
acceptable in law. It is to be noted that the deed in
question is purported to be a document which is
claimed to be in conformity with the customs
applicable for divorce in the community to which
the parties to this litigation belong to. As per the
Hindu law administered by courts in India divorce
was not recognised as a means to put an end to
marriage, which was always considered to be a
sacrament, with only exception where it is
recognised by custom. Public policy, good morals
and the interests of society were considered to
require and ensure that, if at all, severance should
be allowed only in the manner and for the reason
or cause specified in law. Thus such a custom
being an exception to the general law of divorce
ought to have been specially pleaded and
established by the party propounding such
custom since the said custom of divorce is
contrary to the law of the land and which, if not
proved, will be a practice opposed to public policy .
Therefore, there was an obligation on the trial
court to have framed an issue whether there was
proper pleadings by the party contending the
existence of a customary divorce in the community
to which the parties belonged and whether such
customary divorce and compliance with the
manner or formalities attendant thereto was in fact
established in the case on hand to the satisfaction
of the court. In the instant case, we have perused
the pleadings of the parties before the trial court
and we do not find any material to show that
prevalence of any such customary divorce in the
community, based on which the document of
divorce was brought into existence was ever
pleaded by the defendant as required by law or any
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evidence was led in this case to substantiate the
same. It is true that in the courts below the parties
did not specifically join issue in regard to this
question and the lawyers appearing for the parties
did orally agree that the document in question was
in fact in accordance with the customary divorce
prevailing in the community to which the parties
belonged but this consensus on the part of the
counsel or lack of sufficient pleading in the plaint
or in the written statement would not, in our
opinion, permit the court to countenance the plea
of customary divorce unless and until such
customary divorce is properly established in a
court of law . In our opinion, even though the
plaintiff might not have questioned the validity of
the customary divorce, the court ought to have
appreciated the consequences of there not being a
customary divorce based on which the document of
divorce has come into existence bearing in mind
that a divorce by consent is also not recognisable
by a court unless specifically permitted by law.
Therefore, we are of the opinion to do complete
justice in this case it is necessary that the trial
court be directed to frame a specific issue in
regard to customary divorce based on which the
divorce deed dated 26-6-1982 has come into
existence and which is the subject-matter of the
suit in question. In this regard, we permit the
parties to amend the pleadings, if they so desire
and also to lead evidence to the limited extent of
proving the existence of a provision for customary
divorce (otherwise through the process of or
outside court) in their community and then test the
validity of the divorce deed dated 26-6-1982 based
on the finding arrived at in deciding the new
issue.”
(emphasis supplied)

16. In the present case, the appellant has failed to establish the
existence or prevalence of a customary practice of divorce within her
community. No cogent oral or documentary evidence is led to
demonstrate either that such a valid custom exists and is continuously
followed, or that the appellant’s earlier marriage was dissolved in
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accordance with such a custom.
17. The principal ground raised by the appellant is that the marriage
between the parties was arranged through one lady Padma, and that
the respondent was fully aware of her prior marriage and the alleged
customary divorce. Padma was examined as RW-2 before the Family
Court. She stated that she knew both parties and that the respondent
had been informed about the appellant’s earlier marriage and its
purported dissolution. In any event, her testimony, even if accepted in
its entirety, does not establish the existence of a legally recognized
custom of divorce, nor does it prove that the appellant’s earlier
marriage stood validly dissolved in accordance with such a custom.
18. The Family Court has, in our view, correctly held that such
evidence falls short of the strict standard required to prove a valid
custom, which must be ancient, certain, reasonable, and continuously
observed. The appellant has not produced any material, whether in the
nature of prior instances, judicial recognition, or authoritative texts to
substantiate the existence of a customary practice of dissolution of
marriage before Panchayat in her community.
19. In these circumstances, the reliance placed by the appellant on
the testimony of RW-2 may, at best, indicate that the respondent was
aware of her prior marriage. However, such knowledge cannot cure
the legal defect arising from the subsistence of the earlier marriage,
nor can it be construed as proof of a valid dissolution thereof.
20. The reliance placed by learned counsel for the appellant on
Section 23(1)(a) of the HMA is also misplaced and does not advance
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her case. The said provision, which embodies the principle that a party
cannot take advantage of his or her own wrong, has no application to
marriages which are void ab initio . A void marriage is non est in the
eyes of law and is treated as having never come into existence from its
inception. The present case is not one of a voidable marriage, where
considerations under Section 23(1)(a) may arise, but of a marriage
which is void under Section 11 for contravention of Section 5 (i) of
the HMA, an altogether distinct legal consequence. The appellant
cannot circumvent the statutory mandate by invoking equitable
considerations under Section 23(1)(a). A plain reading makes it clear
that the said provision does not apply to marriages solemnized in
contravention of Section 5(i) but applies to marriages falling within
Section 5(ii)(a), (b) and (c) thereof. Hence, Section 23(1)(a) has no

application to void marriages solemnized in violation of Section 5(i).
21. Hence, the provision makes the legislative intent abundantly
clear that the principle of a party not being permitted to take
advantage of his or her own wrong cannot be invoked in cases of
marriages which are void ab initio . Mere knowledge on the part of the
respondent regarding the appellant’s previous marriage or alleged
customary divorce cannot validate a marriage which is void ab initio
in the eyes of law.
22. Therefore, in the absence of any legally admissible evidence
establishing the dissolution of the appellant’s earlier marriage, it must
be held that the said marriage was subsisting at the time of her
marriage with the respondent. The subsequent marriage is, therefore,
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in clear contravention of Section 5(i) of the HMA and is void under
Section 11 thereof.
23. Turning to the issue of interim maintenance pendente lite and
permanent alimony/maintenance, it is well settled that the grant of
maintenance pendente lite or permanent alimony under Section 24 &
25 of the HMA respectively, is not precluded merely because the
marriage has been declared void under Section 11 of HMA. The
entitlement must be determined on the facts and circumstances of each
case and grant of such relief is always discretionary. The relevant
portion of Sukhdev Singh (supra) is reproduced herein below -
“28. Accordingly, we answer the questions as
follows:
a. A spouse whose marriage has been declared
void under Section 11 of the 1955 Act is entitled to
seek permanent alimony or maintenance from the
other spouse by invoking Section 25 of the 1955
Act. Whether such a relief of permanent alimony
can be granted or not always depends on the facts
of each case and the conduct of the parties. The
grant of relief under Section 25 is always
discretionary; and
b . Even if a court comes to a prima facie
conclusion that the marriage between the parties is
void or voidable, pending the final disposal of the
proceeding under the 1955 Act, the court is not
precluded from granting maintenance pendente lite
provided the conditions mentioned in Section 24
are satisfied. While deciding the prayer for interim
relief under Section 24, the Court will always take
into consideration the conduct of the party seeking
the relief, as the grant of relief under Section 24 is
always discretionary.”

24. In the present case, the appellant is an indigent and destitute
woman residing in an old age home, with no independent source of
income, property, or familial support. The parties had admittedly
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cohabited as husband and wife after the marriage, giving rise to a
relationship akin to marriage and a legitimate expectation of financial
support. The respondent is a retired government employee receiving a
regular pension with no substantial liabilities, as per the affidavit filed
by him dated 29.05.2023. He is, therefore, in a comparatively better
financial position to provide support. In these circumstances, denial of
maintenance would result in grave hardship and injustice to the
appellant. This Court is of the considered view that this is a fit case for
grant of reasonable maintenance to secure her sustenance and dignity.
25. Accordingly, having regard to the fact that the Family Court
had earlier granted interim maintenance to the tune of Rs. 5,000/- per
month to the appellant vide order dated 23.10.2015, at a time when the
respondent was still in service, till disposal of the original petition.
Considering that an appeal is a continuation of the original
proceedings, as well as keeping in view the financial condition of the
appellant and the means of the respondent, this Court deems it
appropriate to direct the respondent to pay a sum of Rs. 9,000/- per
month to the appellant towards maintenance from the date of filing of
the present appeal till the date of this judgment. The arrears shall be
cleared within a period of six months from today. It is further clarified
that any amount received by the appellant towards maintenance for the
said period in any other proceedings is liable to be adjusted against the
maintenance awarded under the present judgement.
26. Further, having regard to the status of the parties, the financial
condition of the appellant, and the means of the respondent, this Court
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also considers it just and proper to award permanent alimony in favour
of the appellant under Section 25 of the HMA. Accordingly, the
respondent is directed to pay a sum of Rs.9,000/- per month to the
appellant towards permanent alimony and maintenance with effect
from the date of this judgment, payable on or before the 10th day of
each calendar month.
27. In view of the foregoing discussion, we do not find any reason
to interfere with the impugned Judgement dated 23.07.2018 passed by
the Family Court and the same is upheld. However, the appellant is
held entitled to maintenance in the terms mentioned hereinabove.
28. The appeal, along with all pending applications, stands disposed
of in the above terms.


VIVEK CHAUDHARY, J.


RENU BHATNAGAR, J.

MAY 29, 2026/ p / kz/nc
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