Jews have own laws, can’t de­cide on their di­vorce pleas, says court

‘No Pro­vi­sion For Mu­tual Con­sent Too’

The Times of India (Mumbai edition) - - TIMES CITY - Rosy.Se­queira@ times­ UNCODIFIED LAW

Mum­bai: A Jewish cou­ple’s pe­ti­tion for di­vorce by mu­tual con­sent was dis­missed by the fam­ily court, Ban­dra, as “there is no such pro­vi­sion in the uncodified Jewish law gov­ern­ing mat­ri­mo­nial af­fairs”.

The court heard a pe­ti­tion by the cou­ple, both In­dian cit­i­zens who got mar­ried in ac­cor­dance with Jewish cus­toms in De­cem­ber 2012. In Septem­ber 2013, the wife, a char­tered ac­coun­tant, was al­legedly driven out of the mat­ri­mo­nial home. She moved the fam­ily court in Au­gust 2014 to seek a di­vorce un­der the uncodified Jewish law, cit­ing cru­elty and do­mes­tic vi­o­lence. In her pe­ti­tion, she also men­tioned the Do­mes­tic Vi­o­lence Act, 2005, and the Fam­ily Court Act, 1984, with re­gards to the court’s ju­ris­dic­tion in suits or pro­ceed­ings that con­cern va­lid­ity of a mar­riage or mat­ri­mo­nial sta­tus of a per­son.

The hus­band, a mar­ket­ing pro­fes­sional, coun­tered the woman’s al­le­ga­tion and said that he un­der­went phys­i­cal stress and men­tal agony at her hands. Af­ter coun­selling ses­sions, both agreed to am­i­ca­bly set­tle the dis­pute and ex­e­cuted con­sent terms. How­ever, in March 2018, the court di­rected both the par­ties to ar­gue how the pe­ti­tion is main­tain­able for grant­ing di­vorce by mu­tual con­sent un­der the Jewish law.

The wife’s ad­vo­cate, Neelo­far Akhtar, and the man’s ad­vo­cate, Rani Ra­jwade, con­ceded be­fore Judge S N Ruk-

These are laws that are not passed by Par­lia­ment, but are cus­toms that are fol­lowed by a par­tic­u­lar re­li­gion

They have been re­tained keep­ing in mind var­i­ous be­liefs, sen­ti­ments me that there is no cod­i­fied law to grant such re­lief to Jews. But Akhtar pointed out that the fam­ily court had ear­lier al­lowed di­vorce by mu­tual con­sent for Jewish cou­ples.

The judge, in his Septem­ber 24, 2018, or­der, said that the Bom­bay HC has laid down that Jews are reg­u­lated by their per­sonal law and there is no statute gov­ern­ing their mat­ri­mo­nial af­fairs. “In such cir­cum­stances, the par­ties have to show as to how the mar­riage can be dis­solved by this court on the grounds of mutu- al con­sent,’’ the judge said.

The judge noted that the par­ties had re­lied on a let­ter by a syn­a­gogue in Thane which was given to the wife when she ap­plied for a ‘get’—a di­vorce doc­u­ment in Jewish law. The sec­re­tary and trustee of the Sharr Has­ga­maim (Gate of Heaven) syn­a­gogue stated in the let­ter that laws of In­dia would pre­vail in this case and af­ter a fam­ily court grants di­vorce, a re­li­gious di­vorce would be given. “It can be in­ferred that the par­ties, in­stead of fol­low­ing the law of the land, are re­ly­ing on the ad­vice of the sec­re­tary or trustee of a re­li­gious tem­ple. The sec­re­tary or trustee or any other per­son can­not guide the court as to how a mar­riage has to be dis­solved. The court is only guided by per­sonal laws or the cod­i­fied law,’’ the judge added.

The judge said that con­sid­er­ing the fac­tual as­pects of this case and the ra­tio­nal laid down by the Supreme Court and even the Bom­bay High Court, “it is clear that no such rem­edy is avail­able to the par­ties”. “It can be said that the pe­ti­tion and pro­ce­dure fol­lowed by the par­ties is mis­con­ceived. The par­ties have failed to prove their case,’’ he con­cluded.

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