Nallathangal vs Nainan Ambalam

(1) The revision petitioner in this case is a wife whose proceeding under S. 488(1) of the Crl. P. C. was dismissed by the learned Sub Divisional

Magistrate of Dindigul upon a finding of fact that the petitioner had been actually divorced from her husband by virtue of a Caste Panchayat and

that there was hence no subsisting marriage.

(2) It is not in dispute before me that though Hindu Law does not recognise a divorce between husband and wife, marriage being regarded as an

indissoluble sacrament, nevertheless, the custom in certain communities may be widely different, permitting a valid divorce by means of a caste

Panchayat or similar tribunal.

(3) With respect to the effect of recent legislation upon this matter, this is, the Hindu Marriage Act XXV of 1955, the question seems to have come

up in this court, and the decision is briefly reported. In Parvathi Ammal, In re, 1957 Mad WN Cri. (N. R. C.) 4, Ramaswami J. held that the

customary rights of divorce were saved by S. 7 of of Madras Act VI of 1949, and that such divorces continue to have the force of law among the

communities where the custom prevailed. In the present matter, it is not denied that there is such a custom among the Ambalagars, and the finding

of fact must be upheld that the revision petitioner and her husband were actually divorced by means of such a caste panchayat. The precise

grounds upon which this divorce was granted, the particular party or parties who took the initiative in this matter, and the precise attitude of the

husband and wife towards the Caste Panchayat are details into which we cannot proceed here. In fact, the record is not adequate upon this

aspect, since it was not directly in issue.

(4) What is now urged before me, upon the strength of an observation in Thangammal Vs. Gengayammal and Others, , and also upon the strength

of a decision of the Bombay High Court in Keshav Hargovan Vs. Bai Gandi, which has been referred to in Mulla''s Text book on Hindu law is that

unless both the parties had specifically agreed, a divorce granted by a Caste Panchayat would be against public policy, and could not be enforced

by courts. The proposition seems to me to be for too wide for acceptance.

(5) The decision in Thangammal Vs. Gengayammal and Others, is not an authority in any such wide proposition and there is only an incidental

observation upon this. The proposition would necessarily imply that a Caste Panchayat would have no jurisdiction to proceed into matrimonial

offences, where they are advanced as the ground or the cause of the divorce, in which contingency it is very probable that the spouse against

whom the accusation is made might deny it. In any event, I do no think there is any justification for this court to interfere in criminal revision, upon a

point of this character. It is always open to the revision petitioner (wife) to sue for maintenance in a civil court and the question could then be

properly gone into whether by virtue of the customary divorce, the marriage has ceased to subsist, or her matrimonial status continues

notwithstanding the Caste Panchayat decision, and whether she consented to the decision of the Caste Panchayat. The revision petition is

accordingly dismissed.