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Query from: gaurav, India, 03/28/06
Topic: HUMANITIES      Submitted on: University
Subject: What is coustmery divorce

What is coustmery divorce

Rate = 0.5 (Rated by 1 Council Members)
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Response from: Badshah .,   
Featured Member on
Dear gaurav, Customay Divorce is based on the assumption of inverse relationship of a custom empowering the parties to the marriage to dissolve their marriage and the sacramental continuity of a marriage soleminised under the Hindu Marriage Act, 1955. A valid and legally recognised custom is respected and given due weight by the courts so that it can have its full operation. This is so because no person, including a court, has a right to challenge a well recognised and universally accepted custom, which has passed the test of time and the rigorous of public and societal interest. The traditional Hindu law did not recognise the system of divorce and the husbands were literally free to desert their wives, as this was a socially accepted phenomenon. There was, of course, the customary law which recognised that divorce can be granted by either party to the marriage if a custom prevailing in their community permits them to do so. The legislature by way of codification has improved the “marital equality” among the spouses by formulating certain grounds, which can be invoked by either spouse to get a decree of divorce. In this sense the legislature has made “positive and constructive departures” from the traditional Hindu law. The best part about this codification drive is that it expressly and in clear terms reserved the right to grant divorce under the customary Hindu law by incorporating Section 29(2) in the Act. Thus, the spouses are now free to get divorce either by invoking the provisions of the Act or by successfully pleading and proving a valid custom permitting them to obtain divorce. A valid and recognised customary law of divorce will prevail over the provisions of the Act and thus it shares an inverse relationship with the provisions of the Act, which restrict the right of the spouses to get divorce on limited grounds only. It must be noted that the customary law of divorce can be relied upon only if it satisfies certain well-accepted principles, as enumerated by the Courts from time to time. The characteristics of a valid and binding custom or usage empowering the parties to obtain divorce are: (1) it must be of immemorial existence, it must be reasonable, it must, be certain and it must be continuous. Every custom must have to be in existence preceding memory of man and if the proof was carried back as far as living memory would go, it should be presumed that the right claimed had existed from time of legal memory (2) it is the essence of special usages modifying the ordinary law that they should be ancient and invariable; it is further essential that they should be established to be so, by clear and unambiguous evidence and that it is only by means of such findings that the Courts can be assured of their existence and that they possess the conditions of antiquity and continuity and certainty on which alone their legal title to recognition depends. Custom must be proved and the burden of proof is on the person who asserts it[4], (3) after the existence of a custom for some years has been proved by direct evidence, it can only, as a rule, be shown to be immemorial by hearsay evidence and it is for this reason that such an evidence is allowable as an explanation to the general rule. (4) the breach of a custom in a particular instance need not destroy it for all times. (5) the material customs must be proved in the first instance by calling witnesses acquainted with them until a particular custom has by frequent proof in the Court becomes so notorious that the Courts take judicial notice of it. A custom cannot be extended by logical process. (6) an oral evidence as to instances, which canbe proved, by documentary evidence cannot be fairly relied upon to establish custom when no satisfactory explanation for withholding the best evidence is given. Custom cannot be extended by analogy and it cannot be established by a priori method. (7) the ordinary rule is that a custom, general or otherwise, has to be proved under Section 57 of the Evidence Act. However, nothing need be proved of which the Courts can take judicial notice. When a custom has been judicially recognised by the Court then it passes into the law of the land as proof of it becomes unnecessary under Section 57(1) of the Evidence Act. --By Praveen Dalal

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Response from: C. Raj, United Kingdom,   
Council Member on
Customary Divorce is what I guess you want to know about.

This is more in African Divorces

West African customary divorces

Although there is statutory provision for marriages and divorces throughout West Africa, the form of marriage and divorce most commonly encountered, especially amongst citizens of Ghana and Nigeria, is one that has taken place according to tribal custom. Tribal divorces are essentially an agreement between the heads of both families that the couple's marriage has broken down and that they be divorced and any dowry be returned. It is not necessary for either party to be present when the families agree to the dissolution of the marriage.

There are customary courts which may dissolve customary marriages. The recognition of such a divorce would fall to Section 46(1) of the Family Law Act 1986. A customary divorce may fall to be recognised under Section 46(2) of the Act, but special attention should be paid to the whereabouts of the parties during the 12 months preceding the divorce.

Since 1985 there has been a statutory requirement in Ghana for customary divorces and marriages to be registered. It is the practice of the General Register Office to accept as evidence of a customary divorce:

* affidavits sworn by persons who state themselves to be the heads of both the parties' families; and

* the registration document; and

* certification from the Ministry of Foreign Affairs (the certificate provides evidence that the affidavits and registration document are genuine).

The divorce is effective from the date the heads of family agree the divorce. That date should also be the effective date for consideration by caseworkers


Rate = 2.5 (Rated by 2 Council Members)

Response from: Eva Goshai,   
Registered Member on
Well divorice is something that is not taken litley by anyone. Yes, there is alot of suffering thru this and because of this. Divorce is the last ultimate resource when there is no other solution to your marriage. When you have tried all avenuse for example marriage cousleing even a trail seperation and all is no good for this unhealthy marriage then there has to be a divorce for the sake of one's one sanity. Customary is for all legal matters as in for the house and mutual stocks and bonds or business that you may both have in together legaly binding.this is for formality sake. and in divorce decree it will tell what you both had come to a desicion about this marrige and why it failed.

Rate = 2.5 (Rated by 1 Council Member)

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Response from: bryan trammell,   
Registered Member on
a customary divorce its a marriage under native law it can only be dissolved by the customary court that had jurisdiction over the area where the marriage took place

Rate = 2 (Rated by 3 Council Members)

Response from: Uma R,   
Registered Member on
Not governed by statutory law but by customs and traditions

Rate = 2 (Rated by 3 Council Members)

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