Delhi High Court
Ms. Kamlesh vs New Delhi Municipal Council on 13 July, 2026
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~56
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9089/2019
MS. KAMLESH .....Petitioner
Through: Mr. Shaileshwar Yadav and Ms
Radhika Mohapatra, Advocates
versus
NEW DELHI MUNICIPAL COUNCIL .....Respondent
Through: Ms. Sriparna Chatterjee, Mr.
Soumitra Chatterjee, Mr. Manish and Ms.
Pranjal Vyas, Advs.
Mr. Varun Vats, SPC for Delhi Police
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE MR. JUSTICE VINOD KUMAR
JUDGMENT (ORAL)
% 13.07.2026
C. HARI SHANKAR, J.
1. This is a hard case. Equity would compel us to grant relief to
the petitioner, but the constraints of the law hold us back.
2. Angoori Devi, the mother of the petitioner, was working as a
Mali in the New Delhi Municipal Council1 since 2 September 1951.
3. The petitioner got married on 26 May 2003. Claiming that her
marriage had been dissolved by way of a deed of dissolution of
1 “NDMC”, hereinafter
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marriage, in accordance with the prevalent customs in the Khatik caste
to which she belonged and that, consequent to the dissolution, she had
returned to her parental home and had since then been residing with
her parents as a dependent, the petitioner, consequent to the demise of
her mother on 3 March 2015, applied to the respondent to transfer the
family pension received by her mother to her.
4. On 20 October 2015, the respondent rejected petitioner’s
representation on the ground that she did not qualify for receipt of
family pension as per Rule 54 of the Central Civil Services (Pension)
Rules 19722.
5. Aggrieved thereby, the petitioner approached the Central
Administrative Tribunal3 by way of OA 1248/2016, which stands
dismissed by the Tribunal by judgment dated 1 November 2018.
Aggrieved, the petitioner has approached this Court under Article 226
of the Constitution.
6. Before the Tribunal, the respondent relied on the fact that, in
Form 3, which was filed by Angoori Devi with the respondent on 21
September 2011, the petitioner was not named as one of the
dependents of Angoori Devi to whom her family pension could be
paid. That apart, it was submitted that no proper decree of divorce had
been produced by the petitioner so as to satisfy the requirement of her
being a divorced daughter of Angoori Devi.
2 “CCS (Pension) Rules
3 “the Tribunal” hereinafter
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7. Office Memorandum4 dated 25 July 2001 issued by the
Department of Pension and Pensioner’s Welfare5 entitles divorced and
widowed daughters of Government servants who have expired in
harness to family pension under Rule 54(6) of the CCS (Pension)
Rules. Admittedly, one of the conditions, which has mandatorily to be
satisfied for a divorced daughter of a retired pensioner to claim the
family pension payable to the pensioner, is that the divorce is valid in
law.
8. The Tribunal has held, in the impugned judgment, that, as there
was no evidence to show that the petitioner’s marriage had been
validly annulled, she was not entitled to receipt of the family pension
payable to her mother.
9. Aggrieved thereby, the petitioner has approached this Court by
means of the present writ petition.
10. During the course of these proceedings, by order dated 30 April
2025, a Coordinate Bench of this Court noticed the fact that, in order
to support his submission that the manner in which the petitioner’s
marriage was dissolved was recognized in the community to which
she belonged, learned counsel for the petitioner was placing reliance
on the judgments of the High Court of Gujarat in Union of India v.
Mayuriben Jani, daughter of Sh. Durgeshbhai Nandlal Jani6 and in
Twinkle Rameshkumar Dhameliya v. Superintendent, Regional
4 “OM” hereinafter
5 “DOPPW” hereinafter
6 Judgment dated 10 February 2020 in R/SCA No. 4792/2019
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Passport Office, Ahmedabad7.
11. The Division Bench on 30 April 2025, further directed the SHO
of the Police Station under whose jurisdiction the petitioner resides to
carry out an investigation regarding the period for which the petitioner
had been residing there and as to whether she was residing with her
husband, as also an investigation from her husband regarding the
claim of customary divorce. Pursuant thereto, the SHO has filed a
report which reads thus:
STATUS REPORT
Respectfully Showeth :-
In compliance with the order dated 30/04/2025 of this
Hon’ble High Court, an enquiry was conducted at the petitioner’s
residence, i.e., House No. B-304, Dakshinpuri, Delhi, as well as at
the residence of the petitioner’s then husband, Mr. Vijay Kumar,
S/o Hazari Lal, R/o A-3/134, Veena Enclave, Nangloi, Delhi.
1. During course of enquiry at the petitioner’s residence, it was
found that her marriage took place around 20-22 years ago.
However, a dispute arose within a few days of the marriage, and a
customary divorce took place with the mutual consent of both
families. Since then, the petitioner has been residing with her
family and has not remarried. Statements of neighbours were also
recorded in this regard.
2. Thereafter, an enquiry was conducted with Mr. Vijay
Kumar. He stated that he was married to the petitioner, but a
dispute arose between them from the very first day of the marriage.
A Customary divorce was taken place between them with the
involvement of both families. Mr. Vijay Kumar remarried after
some days of the customary divorce and now has a 19-year-old
son.
3. During the course of enquiry, Mr. Vijay Kumar was
persuaded many times to provide documentary proof of the
marriage and to give written statement regarding the customary
7 2005 SCC OnLine Guj 35
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divorce, but he vehemently refused to do so. He stated that he
would produce the same before the Hon’ble High Court if he was
asked by the Hon’ble High Court.
4. The Status report is submitted for the kind perusal of the
Hon’ble High Court.
5. However, the undersigned is ready to abide by any
directions passed by this Hon’ble Court.
Submitted Please.
Sd/-
Insp. Harendra Singh
Station House Officer
PS. Ambedkar Nagar
08-08-25″
12. As we commented at the start of this judgment, this appears to
be a harsh case.
13. The status report filed by the SHO thus seems to indicate that,
within a few days of marriage, some form of separation between the
petitioner and the husband took place, after which the petitioner has
been residing with her parents. If we were purely a court of equity, we
might have been persuaded by the circumstances, to grant relief as
sought by the petitioner.
14. Equity, however, has to be tempered with law. Even though our
preambular goal is justice, justice can only be administered by a Court
only in accordance with the law, and not in ignorance thereof.
15. Apart from statute, executive instructions issued in accordance
with law also constitute “law” within the meaning of Article 13(3)(a)88
(3) In this article, unless the context otherwise requires,–
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of the Constitution of India. Besides, DOPPW OM dated 25 July 2001
is not under challenge before us.
16. One of the first and foremost conditions for entitlement to
receipt of family pension by a divorced daughter of a pensioner who
has died in harness is that the divorce is valid in law. Admittedly, the
petitioner does not have any decree of divorce or any document to the
effect that there has been a valid annulment of her marriage with her
husband by any Court of law. She relies on the Deed of Dissolution of
Marriage dated 2 December 2004.
17. We note that the said Deed does not itself refer to any custom
prevalent in the society on the basis of which it was issued. Besides,
divorce by operation of custom is recognized in Section 29(2)9 of the
Hindu Marriage Act. Apropos the factors which have to be proved in
order for a case of customary divorce under Section 29(2) of the
Hindu Marriage Act to be made out, the Supreme Court has recently
in Sanjana Kumari v. Vijay Kumar10 has underscored the following
requirements for a valid customary divorce:
“6. There is no doubt that Section 29(2) of the Hindu Marriage
Act, 1955 (for short, ‘the 1955 Act’) provides that, “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 solemnized before or
after the commencement of this Act”. While construing the effect
and import of the above provision, this Court has held time and
again that spouses can have a valid divorce through a customary
divorce deed, provided they prove that it was an establishedusage having in the territory of India the force of law;
9 (2) 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.
10 MANU/SCOR/159996/2023
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custom.
7. In Yamanaji H. Jadhav v. Nirmala11, the wife had filed a
suit for declaration and pleaded that the customary divorce deed
entered into by her was invalid in law. Having found that the lower
court did not deal with the issue of validity of customary divorce
properly, this Court remanded the matter to the trial court
observing as follows:-
“7. In the view that we are inclined to take in this
appeal, we do not think it is necessary for us to go into the
contentions advanced by the learned counsel for the parties
in this case, because we find that the courts below have
erroneously proceeded on the basis that the divorce deed
relied upon by the parties in question was a document
which is acceptable in law. It is to be noted that the deed in
question is purported to be a document which is claimed to
be in conformity with the customs applicable for divorce in
the community to which the parties to this litigation belong
to. As per the Hindu law administered by courts in India
divorce was not recognised as a means to put an end to
marriage, which was always considered to be a sacrament,
with only exception where it is recognised by custom.
Public policy, good morals and the interests of society were
considered to require and ensure that, if at all, severance
should be allowed only in the manner and for the reason or
cause specified in law. Thus such a custom being an
exception to the general law of divorce ought to have been
specially pleaded and established by the party propounding
such custom since the said custom of divorce is contrary to
the law of the land and which, if not proved, will be a
practice opposed to public policy. Therefore, there was an
obligation on the trial court to have framed an issue
whether there was proper pleadings by the party contending
the existence of a customary divorce in the community to
which the parties belonged and whether such customary
divorce and compliance with the manner or formalities
attendant thereto was in fact established in the case on
hand to the satisfaction of the court. In the instant case, we
have perused the pleadings of the parties before the trial
court and we do not find any material to show that
prevalence of any such customary divorce in the
community, based on which the document of divorce was
brought into existence was ever pleaded by the defendant as
required by law or any evidence was led in this case to
substantiate the same. It is true that in the courts below the11
(2002) 2 SCC 637
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parties did not specifically join issue in regard to this
question and the lawyers appearing for the parties did
orally agree that the document in question was in fact in
accordance with the customary divorce prevailing in the
community to which the parties belonged but this consensus
on the part of the counsel or lack of sufficient pleading in
the plaint or in the written statement would not, in our
opinion, permit the court to countenance the plea of
customary divorce unless and until such customary divorce
is properly established in a court of law. In our opinion,
even though the plaintiff might not have questioned the
validity of the customary divorce, the court ought to have
appreciated the consequences of there not being a
customary divorce based on which the document of divorce
has come into existence bearing in mind that a divorce by
consent is also not recognisable by a court unless
specifically permitted by law…”
8. In Subramani v. M. Chandralekha12, a property dispute
arose in which the respondent claimed right over the property by
virtue of being married to one Kandaswamy. The appellant argued
that she did not have the right because she was divorced by a
customary divorce deed. In this context, this Court held that:-
“9. It is not disputed before us that as per Hindu law
divorce was not recognised as a means to put an end to
marriage which was always considered to be a sacrament
with only exception where it is recognised by custom.
Hindus after the coming into force of the Hindu Marriage
Act, 1955 (for short “the Act”) can seek to put an end to
their marriage by either obtaining a declaration that the
marriage between them was a nullity on the grounds
specified in Section 11 or to dissolve the marriage between
them on any of the grounds mentioned in Section 13 of the
Act. Section 29 of the Act saves the rights recognised by
custom or conferred by special enactment to obtain the
dissolution of marriage, whether solemnised before or after
commencement of the Act…
10. It is well established by a long chain of authorities
that prevalence of customary divorce in the community to
which parties belong, contrary to general law of divorce
must be specifically pleaded and established by the person
propounding such custom. The High Court came to the
conclusion that the appellants failed to either plead the
existence of a custom in their community to dissolve the
12
(2005) 9 SCC 407
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marriage by mutual consent or to prove the same by leading
cogent evidence.”
9. To the same effect is the view taken by a coordinate Bench
in Swapnanjali Sandeep Patil v. Sandeep Ananda Patil13.
10. There can be thus no doubt that the party who places
reliance on customary divorce deed is obligated to establish that
such custom is allowed by a practice that has been uniformly
observed for a long time and such custom is not unreasonable or
opposed to public policy and thus the validity of such customary
divorce is duly protected by the exception carved out in Section
29(2) of the 1955 Act.
11. The issue whether the parties are governed by the custom
under which a divorce can be obtained without recourse to Sections
11 and 13 of the 1955 Act, is essentially a question of fact which is
required to be specifically pleaded and proved by way of cogent
evidence. Such question can ordinarily be adjudicated only by a
civil court. May be in the peculiar facts and circumstances of a
case, the validity of a customary divorce deed can be examined
even by a court other than the Civil Court in some collateral
proceedings. But that is not the question which falls for our
consideration in these proceedings.”
(Emphasis supplied)
18. A coordinate Bench of this Court in Sushma v. Rattan Deep14
has also recently examined the circumstances in which a customary
divorce within the meaning of Section 29(2) of the Hindu Marriage
Act could be said to have been proved, and has held in that regard
thus:
“13. Section 29 of the HMA saves any right recognised by
custom or conferred by any special enactment to obtain dissolution
of a Hindu marriage. Hence, the customary divorce, if validly
proved, is saved by the provision of the HMA. Before delving
deeper into how custom ought to be proved, it is significant to
iterate how courts have interpreted ‘custom’:
14. In Bhimashya v. Janabi (Smt) Alias Janawwa15, the
Supreme Court held:
13 (2020) 17 SCC 510
14 2025 SCC OnLine Del 8663
15 (2006) 13 SCC 627
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“A custom is a particular rule which has existed either
actually or presumptively from time immemorial and has
obtained the force of law in a particular locality, although
contrary to or not consistent with the general common law
of the realm. A custom to be valid must have four essential
attributes. First, it must be immemorial; secondly, it must
be reasonable; thirdly, it must have continued without
interruption since its immemorial origin, and fourthly, it
must be certain in respect of its nature generally as well as
in respect of the locality where it is alleged to obtain and
the persons whom it is alleged to affect.
15. In Gokal Chand v. Parvin Kumari16, the Supreme Court
declared that:
“A custom, in order to be binding, must derive its force
from the fact that by long usage it has obtained the force of
law, but the English rule that ‘a custom, in order that it may
be legal and binding, must have been used so long that the
memory of man runneth not to the contrary’ should not be
strictly applied to Indian conditions.”
16. However, to prove custom, the parties are required to lead
cogent evidence. It is not sufficient to prove custom of dissolution
of marriage by examining few witnesses. It is expected from the
parties to prove the prevalence of customary divorce in their
area/community by producing judgments that recognise their
custom and show past instances of customary divorce in the
community.
17. One of the ways to prove the custom is reference to any text
or interpretation of Hindu law or usage for long period of time.
Once the Court is called upon to declare that there exists a custom
which is contrary to the codified law, the burden of proof is heavy
upon the party asserting custom. Custom cannot be extended by
analogy and it cannot be established by a priori method. Uzagar
Singh v. Mst. Jeo17 laid down that the ordinary rule is that a
custom, general or otherwise, has to be proved under Section 57 of
the Evidence Act, 1872. This fact has been laid down by the Court
from time to time in the following manner:
17.1. The Supreme Court in Saraswathi
Ammal v. Jagadambal18 held as follows:
16 (1953) 1 SCC 362
17 AIR 1959 SC 1041
18 (1953) 1 SCC 362
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“Privy Council in Abdul Hussein Khan v. Soma Dero19. It
was there said that it is incumbent on a party setting up a
custom to allege and prove the custom on which he relies
and it is not any theory of custom or deductions from other
customs which can be made a rule of decision but only any
custom applicable to the parties concerned that can be the
rule of decision in a particular case. It is well settled that
custom cannot be extended by analogy. It must be
estabished inductively, not deductively and it cannot be
established by a priori methods. Theory and custom are
antitheses, custom cannot be a matter of mere theory but
must always be a matter of fact and one custom cannot be
deduced from another. A community living in one
particular district may have evolved a particular custom but
from that it does not follow that the community living in
another district is necessarily following the same-custom.”
17.2. An identical view has been taken by the Supreme Court
in Salekh Chand (Dead) By Lrs v. Satya Gupta20. In Yamanaji H.
Jadhav v. Nirmala21, the Supreme Court reiterated this principle in
the context of the Act, holding as follows:
“As per the Hindu Law administered by courts in India,
divorce was not recognised as a means to put an end to
marriage, which was always considered to be a sacrament,
with only exception where it is recognised by custom.
Public policy, good morals and the interests of society were
considered to require and ensure that if at all, severance
should be allowed only in the manner and for the reason or
cause specified in law. Thus such a custom being an
exception to the general law of divorce ought to have been
specially pleaded and established by the party propounding
such custom since said custom of divorce is contrary to the
law of the land and which if not proved will be a practice
opposed to public policy. …. It is true in the courts below
that the parties did not specifically join issue in regard to
this question and the lawyers appearing for the parties did
orally agree that the document in question was in fact in
accordance with the customary divorce prevailing in the
community to which the parties belonged but this
consensus on the part of the counsel or lack of sufficient
pleading in the plaint or in the written statement would not,
in our opinion, permit the court to countenance the plea of
customary divorce unless and until such customary divorce
is properly established in a court of law. In our opinion,19 (1918) 20 BOMLR 528
20 (2008) 13 SCC 119
21 (2002) 2 SCC 637
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even though the plaintiff might not have questioned the
validity of the customary divorce, the court ought to have
appreciated the consequence of their not being a customary
divorce based on which the document of divorce has come
into existence bearing in mind that a divorce by consent is
also not recognisable by a court unless specifically
permitted by law.”
17.3. The Gujarat High Court in Bhartiben W/O Amitbhai
Vitthalbhai22 held that:
“13. It is well settled principles of law as laid down by the
Supreme Court that prevalence of customary divorce in the
community to which the parties belong, contrary to general
law of divorce must be specifically pleaded and established
by person propounding such custom. In our view, in the
absence of any proper pleadings on behalf of the plaintiff in
the plaint about the then alleged existing custom and
customary divorce in the Leuva Patel Community, the
plaintiff could not have led any oral evidence on the said
issue.”
(Emphasis supplied)
19. All that the learned counsel for the petitioner has placed on
record, in order to support his submission that the marriage between
the petitioner and her husband stood dissolved by a customary decree
of dissolution, are two other such similar documents executed in
respect of others in the society. Given the rigorous standards which
have to be met in order for a case of customary divorce under Section
29(2) of the Hindu Marriage Act to be said to have been made out, as
laid down by the Supreme Court in Sanjana Kumari v. Vijay Kumar
and the Division Bench of this Court in Sushma v. Rattan Deep, we
regret that it is not possible for us to hold that the petitioner has made
out a case of a valid divorce as recognized in the custom prevalent in
the caste to which she belonged.
22
MANU/GJ/1457/2021
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20. We, therefore, cannot fault the Tribunal in its view that the
requirement of proving the existence of a divorce which is valid in law
has not been satisfied in the present case.
21. Accordingly, we do not find this to be a case warranting
interference with the judgment of the Tribunal.
22. However, we clarify that this order would not inhibit the
petitioner from, if she can prove making out a legally sustainable case
of a valid customary divorce having taken place between her and her
husband, re-approaching the Department in that regard for seeking
transfer of the family pension to her account. In case any such request
is made, the Department would examine the matter in the light of the
law declared by the Supreme Court in Sanjana Kumari and the
Division Bench of this Court in Sushma. In that event, the denial of
relief by us in the present judgment would not stand in the way of
grant of family pension to the petitioner.
23. That is the limited extent to which we can provide succour in
the present case.
24. The writ petition stands disposed of, in the aforesaid terms.
C. HARI SHANKAR, J.
VINOD KUMAR, J.
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