The Kerala High Court has delivered a noteworthy ruling affirming that customary divorce practices can be established through hearsay evidence under certain conditions, relying on the provisions of Sections 32(4) and 48 of the Indian Evidence Act. The case arose from a matrimonial dispute in which the appellant contested the Family Court’s decision recognizing the respondents as his wife and daughter. The appellant denied that he was married to the first respondent, claiming that she had previously been married to a man named Balan, and that her earlier marriage had not been legally dissolved. The first respondent, in turn, asserted that she had divorced Balan in accordance with the customary rites of the Hindu Thiyya community before marrying the appellant.
The Division Bench, comprising Justices Sathish Ninan and P. Krishna Kumar, observed that proving the existence of a custom does not require direct personal observation of all instances in which the custom has been practiced. Instead, hearsay evidence can be admissible if it pertains to statements made by persons who would naturally have knowledge of the custom and if such statements were made prior to the controversy. Section 32(4) specifically permits the admissibility of statements regarding the existence of a custom made by someone who would have been aware of it before the dispute arose. This ensures that evidence is not excluded merely because the witness is recounting what they learned from others rather than what they directly observed.
Further, the Court referred to Section 48 of the Evidence Act, which allows proof of a custom through the testimony of persons likely to have knowledge of its existence. This provision underscores that individuals who are aware of customary practices—either by community recognition or by being in positions to know—can provide relevant evidence, even if they have not directly witnessed every instance of the custom.
The High Court emphasized that such flexibility in the rules of evidence is necessary to accommodate cultural and social practices that may not always be formally documented. Recognizing hearsay evidence in this context ensures that customary practices, which hold significant social and legal relevance, are not disregarded simply because traditional forms of proof are unavailable.
Ultimately, the Court upheld the Family Court’s findings and validated the first respondent’s claim of divorce through customary practices, thereby allowing her subsequent marriage to the appellant to be legally recognized. This ruling reinforces the principle that the judiciary can adapt evidentiary requirements to account for the realities of cultural customs, ensuring justice while respecting community traditions. It also provides guidance for future cases where the recognition of customary practices depends on indirect or hearsay evidence, highlighting the importance of contextual and informed adjudication in family law matters.
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