Must a customary divorce be pleaded and proved to dissolve a Hindu marriage?

Paragraph 10The petitions in O.P. Nos. 637/2008 and 432/2009 concerns the grant of succession certificate in respect of death benefits and pensionary benefits of deceased Raja. 10.1. The 1st petitioner in O.P. No.637/2008 namely Panchavarnam is the legally wedded wife of deceased Raja and the 2 nd petitioner Priyadarshini in the said petition is the daughter of deceased Raja and Panchavarnam. Her marriage with Raja is admitted and has not been shown to have been dissolved by any decree of a competent Court. She claims the succession certificate on that basis. 10.2. The 1st petitioner in O.P. No.432/2009, namely Shanmugavalli asserts that she lived with Raja as his wife for several years and petitioners 2 and 3 are the children born to them. To establish her status, she has produced a document described as a customary divorce deed executed between herself and her erstwhile husband before panchayatdars. There can be no dispute that the said Shanmugavalli had never pleaded divorce through a competent court much less a customary divorce, and the existence of any custom recognizing dissolution of marriage by such a panchayat divorce. She relies on documentary evidences to show that her first marriage was dissolved and that she married the deceased Raja and had long cohabitation with him and the birth certificates and school records relating to the two children for establishing that they were born to deceased Raja. 10.3. Now the question arises whether Shanmugavalli has established that her earlier marriage stood validly dissolved under law. Though she has relied upon Ex.R4 divorce deed duly signed by herself and Ashokan and Ex.R5 photocopy of the marriage registration deed dated 27.08.1998 between her and deceased Raja, it is well settled that a customary divorce must be specifically pleaded and established by the person propounding such custom and the law of the land is that marriage has to be solemnised and it has to be dissolved only by a Court of law. Admittedly, the marriage between Ashokan and Shanmugavalli was not dissolved by any Court of law. The party pleading the form of customary divorce should raise this issue before the competent court to prove the source. Under the Hindu Marriage Act, the Hindu marriage can be dissolved only by a decree of divorce passed by a competent Court, unless a valid custom having the force of law permitting customary divorce is specifically pleaded and strictly proved. 10.4. In the present case, the said Shanmugavalli has neither pleaded the existence of such a custom nor led evidence establishing that the community to which she belongs recognises dissolution of marriage through panchayat. Mere production of a divorce deed signed before panchayatdars is insufficient to establish a valid dissolution of marriage. In the absence of pleading and proof of custom, such a document has no legal sanctity. In such circumstances, her earlier marriage cannot be held to have been validly dissolved. Further, it should not be understood by the above discussion that we made, in any way, deciding the status of Shanmugavalli finally. She may still prosecute her own remedies for establishing her own status independently of these proceedings. 10.5. However, the evidence establishes that she cohabitated with Raja for a considerable period until his death and that two children, namely Harish and Sabarish were born during such cohabitation. The documents produced regarding the children have not been effectively rebutted. The paternity of the children stands satisfactorily established. 10.6. The law distinguishes the status of the woman from the status of children. Even where the marriage is void, children born from such relationship are entitled to the protection available under Section 16 of the Hindu Marriage Act, and cannot be treated as illegitimate merely because the marriage of their parents is void. They are entitled to succeed to the property of there parents in accordance with law. 10.7. The proceedings for grant of succession certificate under the Indian Succession Act, are summary in nature. The Court is only required to ascertain whether the persons are having the prima facie best entitlements to collect the debts and securities of the deceased. Though the law is clear that a nominee can claim the death benefits arising out of the employment can always file an application under Section 372 of the Indian Succession Act, as there is nothing in that Section to prevent such a nominee from claiming the certificate on the basis of nomination. Though Shanmugavalli would claim that she had been nominated in the Service Register of deceased Raja, there is nothing on record to show that she was nominated by late Raja. 10.8. However, Shanmugavalli not only claimed herself a nominee but also mother of two children of late Raja who are also the legal heirs of late Raja. Accordingly, while Shanmugavalli cannot be granted a succession certificate in her personal capacity as widow of the deceased, the two children, being the children of Raja, are entitled for succession certificate. The Hon'ble Supreme Court in a reported decision in Rameswari Devi vs. State of Bihar (2000) 2 SCC 431 has held that even if a Government Servant has contracted a second marriage during the subsistence of the first marriage, children born out of such second marriage would still be legitimate though the second marriage itself would be void. The Apex Court, therefore, went on to hold that such children would be entitled to pension but not the second wife. 10.9. Therefore, in our opinion, the learned Single judge was not justified in granting the claim of Panchavarnam to the exclusion of deceased Raja's legitimate legal heirs. 10.10. Therefore, even if Panchavarnam is declared the legally wedded wife and is granted the succession certificate, the rights of children who establish that they are the biological children of Raja cannot be extinguished by such proceedings. While family pension is generally payable only to the legally recognised spouse and eligible dependants under the applicable service rules, terminal benefits forming part of the deceased's estate may be distributable among all legal heirs including children who are entitled to inherit under law. 10.11. Hence, we are inclined to pass the following orders: The succession certificate shall be issued jointly :