MUTUAL CONSENT ALONE CANNOT DISSOLVE A STATUTORY HINDU MARRIAGE WITHOUT PROVEN CUSTOM OR COURT DECREE: J&K AND LADAKH HIGH COURT:

The Jammu & Kashmir and Ladakh High Court has ruled that a private agreement between spouses cannot dissolve a statutory Hindu marriage. Such an agreement lacks the legal force to terminate the marital bond unless it is supported by a decree of divorce passed under the Hindu Marriage Act, 1980 (applicable in the region), or backed by a proven custom that has the force of law.

Justice Sanjay Parihar, while hearing a criminal revision petition arising from maintenance proceedings under Section 488 of the Code of Criminal Procedure, clarified the limited effect of private settlements in matrimonial matters. The court observed that a mere settlement deed or mutual understanding between husband and wife may help establish that the parties are living separately by mutual consent. However, it cannot, by itself, bring the marriage to an end.

The dispute stemmed from the husband’s resistance to his wife’s claim for maintenance. He relied on a private agreement in which the couple had decided to live separately and had settled their respective rights and liabilities. The husband argued that this arrangement disentitled the wife from claiming maintenance. The wife countered that the agreement could not legally dissolve the marriage and that she remained entitled to support, especially in light of the husband’s alleged neglect and refusal to maintain her.

The court examined the statutory framework governing Hindu marriages in the region. It held that a marriage solemnized under the Hindu Marriage Act can only be dissolved through a judicial decree in accordance with the provisions of the Act, or through a specific custom that is pleaded and strictly proved. A private arrangement between the spouses, even if voluntarily executed, does not substitute the mandatory statutory procedure.

While a private agreement cannot dissolve the marriage, the court noted that it retains evidentiary value in maintenance proceedings. Such agreements can be considered when determining whether the separation between the spouses is truly by mutual consent. If the evidence shows that the parties voluntarily agreed to live apart, acted upon the agreement, and settled their rights and liabilities, it may attract the bar under Section 488(5) Cr.P.C., which disentitles a wife from claiming maintenance in cases of mutual separation.

The bench emphasized that the mere production of an agreement does not automatically defeat a wife’s claim. The court must carefully examine the surrounding circumstances to ascertain whether the separation was genuinely mutual or whether it resulted from the husband’s neglect or refusal to provide maintenance. Where neglect or refusal is established, the statutory obligation to maintain the wife continues to operate, and the wife’s right cannot be defeated by informal private arrangements.

In the present case, after appreciating the evidence and the conduct of the parties over the years, the High Court declined to interfere with the revisional court’s order. However, to prevent the petitioner from falling into a state of vagrancy and to advance the ends of justice, the court directed the husband to pay a one-time settlement amount of ₹2.50 lakhs to the wife. This amount is to be paid within six months from the date of receipt of the certified copy of the order. In case of default, the wife would be entitled to recover the sum along with interest at the rate of 6% per annum until realization.

The court further directed the release of the amount already deposited in the form of a Fixed Deposit Receipt, along with accrued interest, in favour of the wife. Any remaining balance was to be paid by the husband within the stipulated period. The revision petition was accordingly dismissed, and the connected petition was dismissed as having become infructuous.

This judgment reaffirms the sanctity of statutory marriage under Hindu law while balancing the practical realities of maintenance claims. It underscores that private agreements, though not sufficient to dissolve a marriage, play a significant role in assessing the nature of separation for the purpose of social welfare legislation like maintenance provisions.