In a significant ruling, the Kerala High Court has set aside a Family Court's declaration that recognized a woman and her daughter as the lawful wife and child of a Kannur-based man. The Division Bench comprising Justice Sathish Ninan and Justice P. Krishna Kumar pronounced the verdict on September 29, 2025, in Mat. Appeal No. 630 of 2018 and R.P.(FC) No. 126 of 2020, challenging the Thalassery Family Court’s order.
The appellant, 61-year-old Kizhakkayi Dasan, had contested the Family Court’s declaration which affirmed that the respondents-Kuniyil Cheerootty and her daughter Sabina-were his legally wedded wife and child.
Background
The case originated in 2015 when Cheerootty and her daughter filed a petition claiming marital status and paternity. They alleged that Cheerootty had married Dasan in 1988 according to Thiyya community customs and that Sabina was born from that union. The Family Court ruled in their favor, prompting Dasan’s appeal.
Dasan denied both the marriage and paternity, arguing that Cheerootty's earlier marriage to one Balan had not been legally dissolved. He maintained that "customary divorce" had no legal standing under Hindu law unless properly proven as an established community practice.
Court's Observations
The High Court took a deep dive into the concept of "customary divorce" under Hindu law. Justice P. Krishna Kumar, who authored the judgment, explained that while Section 29(2) of the Hindu Marriage Act allows certain customary practices to continue, such customs must be ancient, certain, and continuously observed.
"The party asserting the existence of a custom bears the burden of proving its antiquity, continuity, and reasonable certainty," the Bench noted. The judges emphasized that "mere occasional practices or isolated examples cannot constitute a custom with the force of law."
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The court cited several Supreme Court precedents-including Bhimashya v. Janabi and Yamanaji H. Jadhav v. Nirmala-to underline that customs contrary to general law must be proved with solid, reliable evidence. In this case, the respondents failed to produce even a single credible instance of a similar customary divorce in their Thiyya community of North Malabar.
"The testimony falls short of establishing the antiquity and continuity required under Section 29(2) of the Act," the judgment stated.
On the Validity of Marriage and Legitimacy of Child
The Bench concluded that since Cheerootty’s prior marriage to Balan had not been proven to be dissolved by a recognized custom, her subsequent marriage with Dasan was void under Section 11 of the Hindu Marriage Act.
However, the court made it clear that this finding would not affect the legitimacy of Sabina.
"In view of Section 16 of the Act, the legitimacy of the child remains unaffected even if the marriage is void," Justice Krishna Kumar observed, thus protecting the daughter’s legal rights.
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On Maintenance and Alimony
Alongside the appeal, Dasan had filed a revision petition challenging a maintenance order of ₹5,000 per month granted by the Family Court to Cheerootty. The High Court noted that under Section 125 of the Criminal Procedure Code, only a legally wedded wife can claim maintenance. Since the marriage was found void, the court set aside the maintenance order as well.
At the same time, the judges cited the Supreme Court's recent decision in Sukhdev Singh v. Sukhbir Kaur (2025), clarifying that even in cases of void marriages, a woman may seek permanent alimony or interim maintenance under Sections 24 and 25 of the Hindu Marriage Act.
"It is open to the first respondent to approach the Family Court for permanent alimony," the Bench added.
Decision
In conclusion, the High Court allowed the appeal in part and annulled the declaration of marriage between Dasan and Cheerootty. The court dismissed her petition regarding marital status but maintained the daughter's legitimacy.
The related revision petition was also allowed, setting aside the maintenance order-subject to the court’s observation that any sums already paid would be treated as interim support.
"There shall be no order as to costs," the judgment concluded.
Case Title: Kizhakkayi Dasan v. Kuniyil Cheerootty & Anr.
Date of Judgment: September 29, 2025
