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[1997] UKSSCSC CP_11496_1995 (05 February 1997)

R(P) 1/98

Mr. D. G. Rice CP/11496/1995

Validity of marriage - panchayat divorce in India - whether marriage terminated

The claimant had married his first wife in India in July 1949. In 1956 he moved to the UK. In January 1959, he and his first wife went through a panchayat divorce. In November 1960 he married the claimant. The only issue was whether the claimant's husband had been validly divorced from his first wife before he married the claimant.

Held that:

a panchayat divorce in India constituted a fully recognised divorce under the Hindu Law of India and such a divorce constituted proceedings within section 46(1) of the Family Act 1986. Accordingly the claimant was legally married to her husband and was to be accepted as his wife for the purposes of her claim for retirement pension.

[Note: The decision depends upon an expert legal opinion on Hindu law, the essential parts of which are set out in the schedule to this decision.]

DECISION OF THE SOCIAL SECURITY COMMISSIONER

My decision is that the decision of the social security appeal tribunal given on 26 July 1995 is erroneous in point of law and accordingly I set it aside. I consider it expedient to make the finding, based on the expert legal opinion of Dr. Menski, that JSA's 1959 panchayat divorce in India had the legal effect of a fully recognised divorce under the Hindu Law of India, and that the same qualifies as proceedings within section 46(1) of the Family Law Act 1986, and accordingly in the light of that finding I decide that the claimant is legally married to JSA, and is, for the purposes of her claim to retirement pension, to be accepted as his wife.

This is an appeal by the adjudication officer, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 26 July 1995.

JSA married in India, some time in July 1949, Satinder Kaur. In 1956 JSA moved to the United Kingdom, leaving his wife and children in India. In November 1960, JSA went through a ceremony of marriage with the claimant. The validity of that marriage is challenged only on one ground, namely that the claimant had not been validly divorced from his first wife prior to the second "marriage". If there was such a divorce, the second marriage, by virtue of the Hindu Marriage Act 1955, which prohibits polygamy, was necessarily a monogamous marriage, and for social security purposes the claimant is entitled to be treated as the wife of JSA in her claim for retirement pension.

Accordingly, the crux of this case is whether or not JSA was validly divorced from his first wife before he went through a form of marriage with the claimant. The tribunal were satisfied on the balance of probability that he was.

The adjudication officer now concerned has obtained an opinion as to the validity of the alleged divorce from an expert on this branch of the law, namely Dr. Werner Friedhelm Menski, Senior Lecturer in Hindu and Modern South Asian Laws at the School of Oriental and African Studies, University of London. He has given it as his view that JSA was validly divorced from his first wife, and his reasoning is for convenience set out in Part I of the schedule attached hereto.

In the light of Dr. Menski's opinion I am satisfied that JSA was validly divorced from his first wife before he went through a form of marriage with the claimant, and that this was effected by proceedings before the panchayat. Moreover, such proceedings fell within section 46(1) of the Family Law Act 1986, the provisions of which are set out in Part II of the schedule attached.

Accordingly, the claimant is the wife of JSA for the purposes of her claim to retirement pension.

Although the tribunal reached the right conclusion, I am not sure that their reasoning is sufficiently full, and on that ground I think it is right that I should set aside their decision. However, it is unnecessary for me to remit the matter to a new tribunal for rehearing. I have had the benefit of further evidence in the form of the expert opinion of Dr. Menski, and in the light of that opinion I am able to determine this appeal.

Accordingly, my decision is as set out in paragraph 1.

Date: 5 February 1997 (signed) Mr. D. G. Rice

Commissioner

SCHEDULE

PART I

EXPERT OPINION

RE: [THE CLAIMANT]

...

The facts of the case, as I understand them, are as follows: JSA, [the claimant's] husband, married his first wife, Satinder Kaur in India some time in July 1949. JSA then moved to the UK in 1956, leaving his wife and children in India. It is of central importance to the present case that [first wife and JSA] then went through a customary divorce in January 1959. I understand that this happened through the involvement of a panchayat while the husband remained in the UK.

Satinder Kaur, the first wife, then remarried in July 1959. If this is correct (and it seems an unchallenged fact) this would convincingly confirm the legal validity of this particular divorce under Indian law. This is because the Sikh community would not have allowed such a woman to remarry if her previous marriage had not been validly dissolved. In other words, polygamy may be sanctioned in Sikh society, but polyandry is certainly not allowed.

...

In my view, it seems abundantly clear from the facts of the case that the first marriage of JSA, solemnised in 1949, and thus a potentially polygamous marriage, was validly and effectively dissolved by a panchayat in 1959. The second marriage of JSA, solemnised in 1960, falls under the Hindu Marriage Act, 1955 which prohibits polygamy and thus renders any marriage solemnised under it a monogamous marriage. There is, thus, no doubt in my mind that the marriage of [the claimant] is entitled to full legal recognition by British institutions.

I base my opinion on a number of grounds. Firstly, as indicated in para. 5 above, I take the fact that the first wife of JSA remarried in July 1959 as very persuasive evidence indeed of the fact that the panchayat divorce from JSA in January 1959 was legally effective and socially recognised.

The legal basis for this, under Indian law, is found in section 29(2) of the Hindu Marriage Act, 1955, which had come into operation during the married life of this couple. This Act governs Sikhs as well as Hindus, and applies to a lot of very diverse communities in a huge country. The law makers, thus, made sure that important safeguards were built into this Act to protect some pre-existing customs. The Act contains provisions for the solemnisation of marriages (s. 7), for divorce (s. 13) as well as other matrimonial matters in various sections.

Both with regard to marriage solemnisation and to divorce, the Act saves pre-existing Hindu customary laws to a large extent. The provisions of s. 7 regarding solemnisation are not relevant to the present case. However, the Hindu Marriage Act also contains a provision which explicitly saves the pre-existing customary laws of divorce. Thus, if one wants to get a complete picture of Hindu divorce law today, one always has to read section 13 of the Act, providing a large number of fault based grounds for divorce, in conjunction with section 29(2), which continues, even today, to make allowances for customary forms of divorce. Section 29(2) provides as follows:

"Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage whether solemnised before or after the commencement of this Act."

It is, thus, correct to assume that the various and much-amended provisions of section 13 of the Hindu Marriage Act, 1955 provide prima facie for judicial decrees of divorce among Hindus/Sikhs in India. One would, therefore, normally expect a Hindu divorce in India to go through formal court proceedings under any of the grounds provided in section 13. However, the same Act provides that Hindu marriages may also be dissolved extra-judicially in customary ways. Indian law, thus, recognises such forms of divorce as legally valid and they are frequently used, also today. However, they are well known for causing multiple problems of evidence. Thus, Professor J. D. M. Derrett, in an important article on customary divorces "Divorce by caste custom", at 1963 (65) Bombay Law Reporter, Journal section, pp. 161-169, at p. 169 has concluded that "the law of customary divorces is a world to itself" but explains its importance in legal practice. Nuala Mole, in a book on Immigration: Family entry and settlement (Bristol: Family Law 1987, p. 41) has confirmed that "In rural areas extra judicial divorces exist, but must be sanctioned by the elders of the community".

It is well known that Panjabis, and Sikhs in particular, have a variety of customary forms of divorce and that divorces among them are quite frequent. A leading Indian authority on this subject, Professor Paras Diwan, in a book on Customary law (Chandigarh: Panjab University 1984), at p. 83, has confirmed that "... in all the districts surrounding Jullundur there has been a well recognised custom under which the husband can dissolve the marriage by turning out or abandoning his wife. In such a case the wife is free to remarry". I understand that the present case is linked to the district of Jalandhar or Jullundur and thus Professor Diwan pinpoints the relevant customary law provision in the above passage.

The same author also comments on the position regarding documentation of divorces and writes, in my view and experience correctly, that "It must be clearly understood that customary law does not prescribe any form; written deed must clearly express the intention to divorce" (p. 82). This suggests, appropriately, that there need not be any written documentation of a divorce, since the oral pronouncement becomes a matter of public knowledge and is thus treated as sufficient for the purpose of, advertising the factum of the divorce to members of the respective social group. As it were, this was perfectly normal in a pre-modern society, in which the state did not take an interest in registering marriages and divorces.

Professor Paras Diwan, in the tenth edition of his standard textbook and practitioners' handbook on Modern Hindu law (Allahabad: Allahabad Law Agency 1995), comments in some detail on the relationship of customary and statutory divorces at pp. 162-163. In essence, he confirms that panchayat divorces are an integral part of the Indian matrimonial set-up:

"The customary divorces may still be obtained through the agency of gram panchayat or caste tribunal or caste panchayats, by private act of parties, orally or in writing, or under an agreement, oral or written ... The Gram-panchayats and caste-panchayats continue to exercise jurisdiction over customary divorces. How the jurisdiction is exercised and when the courts of law may interfere in their adjudication is well illustrated by Pemabai v. Channoolal (AIR 1963 MP 57)".

This particular case is not directly relevant for the present dispute, but the Commissioner may wish to take specific notice of the fact that the modern family law of India continues the somewhat pre-modern pattern of panchayat adjudication quite consciously and thus condones, as it were, the absence of documentary evidence about customary divorces, provided there was agreement about the divorce and there are no continuing disputes over ancillary relief matters. Unlike Western countries, India is, quite realistically in view of the numbers of potential claimants, not aiming to provide a comprehensive social services net, and thus does not require the kind of official information which Western states need to collect for the purposes of assessing individual claims. Thus, there is a priori nothing unusual or devious in the fact that a couple divorce by more or less informal caste custom rather than through formal court proceedings, it is a normal part of the Indian set-up characterised by much more informality than in the West. It is for this reason, too, that customary divorces continue to be allowed under modern Hindu law.

As for the role of panchayats, two comments would appear to be relevant in the present context. Firstly, panchayats are an ancient Indian institution and they have a multiplicity of functions including, in many communities, the sanctioning of divorces. Since I can assume that in the present case there is no factual dispute over the involvement of a panchayat in the divorce of 1959, I have no hesitation in advising that the dissolution of the marriage by a panchayat in 1959 amounts to a publicly recognised form of proceedings for the dissolution of a Hindu marriage.

A second comment to make is that, rather than reducing the roles of panchayats, modern Indian law has increased their ambit and public profile in the wider context of strengthening ADR (Alternative Dispute Settlement) mechanisms of conflict resolution, thus saving the state valuable resources. To this effect, there are some recent constitutional amendments in India, which are not directly relevant here but which indicate that, far from being phased out, panchayat justice and decentralised, localised panchayat administration is supposed to continue to play an increasingly important role in the Indian legal and administrative set-up.

In the light of the above, my opinion is that it appears entirely appropriate to accept, on the balance of probabilities, that the 1959 panchayat divorce in India had the legal effect of a fully recognised divorce under the Hindu law of India. [The claimant] is, thus, the legally wedded wife of JSA and should be treated by English law as such.

I am further of the opinion that divorce proceedings before a panchayat under Indian Hindu law qualify as proceedings within section 46(1) of the Family Law Act, 1986. I say this because, as explained above, panchayat proceedings are, admittedly informal and procedurally somewhat flexible and unregulated, techniques of dispute settlement under modern Indian law which the state legal system itself has explicitly sanctioned and recognised. The fact that section 29(2) of the Hindu Marriage Act, 1955 specifically allows for the continuation of customary Hindu divorces signifies for me, in this respect, that Indian law purposefully recognises panchayat divorces as a valid form of divorce proceedings. Thus, I would draw a fine distinction between Hindu customary divorces before a panchayat and the so called bare talaq under Indian Muslim law, which remains unregulated by Indian state law and thus would probably not qualify under the ambit of, section 46(1) of the Family Law Act, 1986.

PART II

Section 46(1) of the Family Law Act 1986 provides as follows:

"The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if-

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and

(b) at the relevant date either party to the marriage

(i) was habitually resident in the country in which the divorce, annulment or separation was obtained; or

(ii) was domiciled in that country; or

(iii) was a national of that country"