Judgment No.1
Telangana High Court
Kadavath Srikanth, vs Kadavath Ashwitha Jadav Preethilekha, on 22 January, 2024
HIGH COURT FOR THE STATE OF TELANGANA
********
CIVIL REVISION PETITION No.3413 OF 2023
Between :
Kadavath Srikanth, S/o. Kadavath Tukaram,
Age: 26 years, Caste: Lambada, Hindu,
R/o. H.No.5-71/2,
Mailaram Thanda of Nasrulabad Mandal,
Previously Birkur Mandal, Kamareddy District,
Occ: 120 Battalion CRPF Constable working at
Tura District of Meghalaya State.
...Petitioner
and
Kadavath Ashwitha @ Jadav Preethilekha,
Age: 23 years, Caste: Lambada, Hindu,
R/o. H.No.5-71/2, Mailaram Tahanda
of Narsulabad Mandal, previously Birkur Mandal,
Kamareddy District, at present residing at her
parent's house Burugpally (G) of Suram Thanda
of Narsapur Mandal, Nirmal District.
.... Respondent
DATE OF JUDGMENT PRONOUNCED : 22.01.2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
1. Whether Reporters of Local Newspapers : No
may be allowed to see the Judgments ?
2. Whether the copies of judgment may be : Yes
marked to Law Reporters/Journals
3. Whether Their Lordship wish to : No
see the fair copy of the Judgment ?
2
LNA, J
C.R.P.No.3413 of 2023
* HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
+ C.R.P.No.3413 of 2023
% 22.01.2024
Between:
# Kadavath Srikanth, S/o. Kadavath Tukaram,
Age: 26 years, Caste: Lambada, Hindu,
R/o. H.No.5-71/2,
Mailaram Thanda of Nasrulabad Mandal,
Previously Birkur Mandal, Kamareddy District,
Occ: 120 Battalion CRPF Constable working at
Tura District of Meghalaya State.
...Petitioner
Vs.
$ Kadavath Ashwitha @ Jadav Preethilekha,
Age: 23 years, Caste: Lambada, Hindu,
R/o. H.No.5-71/2, Mailaram Tahanda
of Narsulabad Mandal, previously Birkur Mandal,
Kamareddy District, at present residing at her
parent's house Burugpally (G) of Suram Thanda
of Narsapur Mandal, Nirmal District.
.... Respondent
!Counsel for the Petitioner : Sri T. Srujan Kumar Reddy
Counsel for the Respondent : ..
<Gist :
>Head Note:
? Cases referred:
1. (2000) 8 Supreme Court Cases 587
2. (2001) 3 SCC 13
3. 2021 Supreme (Del) 389
4. 2023 (3) ALD 73
5. MAT. APP 6 of 2018
3
LNA, J
C.R.P.No.3413 of 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
CIVIL REVISION PETITION No.3413 of 2023
ORDER:This Civil Revision Petition, under Article 227 of the Constitution of India, is filed against the order dated 22.08.2023 passed by the Senior Civil Judge at Kamareddy, in CFR No.630 of 2023, whereby the petition filed by the petitioner under Section 13(B) of the Hindu Marriage Act, 1956 (for short, 'the Act'), for decree of Divorce by Mutual Consent by dissolving the marriage dated 23.05.2019 of the petitioner and respondent, was returned for want of jurisdiction.
2. The brief facts leading to the filing of the present Civil Revision Petition are that the petitioner and the respondent are husband and wife and they belong to Lambada Caste (Scheduled Tribe Community). Their marriage was solemnized on 23.05.2019, LNA, J as per the rights and customs prevailed in Hindu Community. The respondent lived with the petitioner for a period of one year and thereafter, disputes arose between them, therefore, the respondent left the society of the petitioner on 21.06.2020. The elders and well wishers of the petitioner and the respondent tried to reconcile the issues between the parties so that they can lead a happy conjugal life, but, in vain. Thus, both the petitioner and the respondent decided to dissolve their marriage mutually and have taken a customary divorce on 22.06.2023 in the presence of the elders of both parties, by entering into an agreement.
3. As per the said agreement dated 22.06.2023, the petitioner agreed to pay an amount of Rs.9,00,000/- as full and final settlement towards permanent alimony to the respondent. Accordingly, the petitioner gave an amount of Rs.2,00,000/- on 22.06.2023 and Rs.4,00,000/- on 27.06.2023. The balance amount of Rs.3,00,000/- was agreed to be given to the respondent after dissolution of their marriage. As per the said agreement, gold and silver, household and kitchen articles were also returned to the respondent. Similarly, the respondent had also given 25 grams of gold to the petitioner.
LNA, J
4. The petitioner and the respondent have jointly filed a petition under Section 13 (B) of the Act, for dissolution of their marriage solemnized on 23.05.2019 vide CFR No.630 of 2023 and the trial Court returned the said petition for want of jurisdiction in terms of Section 2(2) of the Act vide the impugned order dated 22.08.2023. Hence, the present Civil Revision Petition.
5. This Court, on 23.11.2023, appointed Sri Kowturu Pavan Kumar, Advocate, as Amicus Curiae, to assist this Court.
6. Heard Sri T. Srunjan Kumar Reddy, the learned counsel for the petitioner as well as Sri Kowturu Pavan Kumar, learned Amicus Curiae.
7. The learned counsel for the petitioner would submit that both the petitioner and the respondent belong to Lambada Caste (Scheduled Tribe Community), and their marriage was solemnized as per the customs and traditions of Hindu Community including the custom of "saptapadi" etc. He further contended that the petitioner and the respondent jointly filed the petition under Section 13(B) of the Act specifically contending that they are following LNA, J Hindu traditions and customs. Thus, the trial Court ought not to have returned the petition, on the ground that it was not maintainable as per Section 2(2) of the Act. Therefore, he prayed to set aside the impugned order.
8. In support of the said contentions, the learned counsel for the petitioner relied upon the judgments in Labishwar Manjhi v. Pran Manjhi 1, Dr. Surajhmani Stell Kujjur v. Durga Charan Hansdah 2, Satprakash Meena v. Alka Meena 3.
9. Sri Kowturu Pavan Kumar, the learned Amicus Curiae, has referred to the judgment of this Court in B. Swapna v. B. Gnaneswar 4 and the judgment of the Tripura High Court in Rupa Debbarma v. Tapash Debbarma 5 apart from the judgments relied upon by the learned counsel for the petitioner.
10. Though the learned Amicus Curiae referred to some more judgments, this Court is of the view that there is no necessity to refer to all those judgments.
(2000) 8 Supreme Court Cases 587 (2001) 3 SCC 13 2021 Supreme (Del) 389 2023 (3) ALD 73 MAT. APP 6 of 2018 LNA, J
11. It is relevant to refer to Section 2(2) of the Act, which reads as under:
"2. Application of Act.- (1) xxxx
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx Explanation.- xxx xxx
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx (2) Notwithstanding anything contained in sub- section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs."
12. A plain reading of Section 2(2) of the Act, shows the non- applicability of the Act to the members of any Scheduled Tribe unless the Central Government, by notification in the official Gazette, otherwise directs. Article 366 of the Constitution defines the expression and meaning of the word Scheduled Tribe which says, "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed Article 342 to be Scheduled Tribes for the purpose of the Constitution which is to be further read with Constitution (Scheduled Tribes) Order, 1950.
LNA, J
13. Now, it is appropriate to refer to the judgments relied upon by the learned counsel for the petitioner as well as Amicus Curiae.
14. In Labishwar Manjhi v. Pran Manjhi, the Hon'ble Supreme Court has observed that when evidence disclose that parties belonging to Santhal Tribe were following customs of Hindus and not of Santhals, provision of Hindu Succession Act would apply to inheritance of property. It has also been observed as under:
"The finding of the words is that they are following the customs of the Hindus and not of the Santhals. In view of such a clear finding, it is not possible to hold that Sub-section (2) of Section 2 of Hindu Succession Act excludes the present parties from the application of the said Act. Sub-section (2) only excludes members of any Schedule Tribes, admittedly as per finding recorded in the present case though the parties originally belong to the Santhal Scheduled Tribe they are Hindus and they are following the Hindu traditions. Hence, we have no hesitation to hold that Sub- section (2) will not apply to exclude the parties from application of Hindu Succession Act."
15. Though the issue in the above case pertains to validity of gift deed executed by a person belonging to Santhal Scheduled Tribe, the observations made by the Hon'ble Supreme Court with regard to LNA, J applicability of Section 2(2) of the Act are relevant to the facts of the present case.
16. In Dr. Surajhmani Stell Kujjur v. Durga Charan Hansdah, the Hon'ble Supreme Court held as under:
"The appellant filed a complaint in the Court of Chief Metropolitan Magistrate, New Delhi, stating therein that her marriage was solemnized with the respondent in Delhi "according to Hindu rites and customs. Alleging that the respondent had solemnized another marriage with the Accused No.2, the complainant pleaded that the accused husband not having obtained any divorce, his action was in contravention of Section 494 IPC. It was conceded by the appellant that the parties are tribals and are governed by their tribal custom and usage. The complaint was dismissed by the trial court holding, "there is no mention of any such custom in the complaint nor there is evidence of such custom. In the absence of pleadings and evidence reference to Book alone is not sufficient". The High Court held that in the absence of notification in terms of Section 2 (2) of the Hindu Marriage Act no case for prosecution for the offence of bigamy was made out against the respondent because the alleged second marriage cannot be termed to be void either under the Act or any alleged custom having the force of law."
17. In Satprakash Meena v. Alka Meena, the High Court of Delhi held as under:
LNA, J "47. The word `Hindu' is not defined in any of the statutes.
It is in view of the fact that there is no definition of Hindu, that the Supreme Court has held in Labishwar Manjhi (supra) that if members of Tribes are Hinduised, the provisions of the HMA, 1955 would be applicable. The manner in which the marriage has been conducted in the present case and the customs being followed by the parties show that as in the case of Hindus, the marriage is conducted in front of the fire. The Hindu customary marriage involves the ceremony of Saptapadi which has also been performed in the present case. The various other ceremonies, as is clear from the marriage invitation are also as per Hindu customs. If members of a tribe voluntarily choose to follow Hindu customs, traditions and rites they cannot be kept out of the purview of the provisions of the HMA, 1955. Codified statutes and laws provide for various protections to parties against any unregulated practices from being adopted. In this day and age, relegating parties to customary Courts when they themselves admit that they are following Hindu customs and traditions would be antithetical to the purpose behind enacting a statute like the HMA, 1955. The provisions of exclusion for example under Section 2(2) are meant to protect customary practices of recognized Tribes. However, if parties follow Hindu customs and rites, for the purpose of marriage, this Court is inclined to follow the judgment of the Supreme Court in Labishwar Manjhi (supra) to hold that the parties are Hinduised and hence the HMA, 1955 would be applicable. Moreover, nothing has been placed before the Court to show that the Meena community Tribe has a specialized Court with proper procedures to deal with these issues. In these facts, if the Court has to choose between relegating parties to customary Courts which may or may not provide for proper procedures and safeguards LNA, J as against codified statutes envisioning adequate safeguards and procedures, this Court is inclined to lean in favour of an interpretation in favour of the latter, especially in view of the binding precedent of the Supreme Court in Labishwar Manjhi (supra) which considered an identical exclusion under the HSA,1956."
18. In the above case, the learned counsel for the appellant/husband contended that both the appellant and the respondent belong to Meena community (Scheduled Tribe) and that once a Scheduled Tribe follows the customs and practices of the particular religion, they should be bound by the law that applies to the said religion. He also contended that if it is held that the Scheduled Tribe of Meena would not be governed by the Hindu Marriage Act,1955, it would lead to enormous difficulties for women as bigamy would be recognised and could even lead to desertion of women. He further contended that even if it is held that the respondent is entitled to take the argument that the parties are governed by the customary practices of the Meena tribe, the trial court could not have presumed the same and dismissed the petition, without proper trial.
LNA, J
19. It is relevant to mention that the facts of the above case are somewhat similar to the facts of the present case.
20. In B. Swapna v. B. Gnaneswar, this Court held as under:
"9. A plain reading of Section 2(2) of the Act shows the non- applicability of the Act to the members of any Scheduled Tribe unless the Central Government, by notification in the official Gazette, otherwise directs. Article 366 of the Constitution defines the expression and meaning of the word Scheduled Tribe which says, "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed Article 342 to be Scheduled Tribes for the purpose of the Constitution which is to be further read with Constitution (Scheduled Tribes) Order, 1950.
....
11. In the instant case, undisputedly, the petitioner and the respondent belong to Yerukala community, which has been specified as the Schedule Tribe in the erstwhile State of Andhra Pradesh under the Constitution (Schedule Tribes) Order, 1950, is entitled to the rights and privileges of tribes under the Constitution of India. Though, as per the contention of the respondent, the marriage was solemnized as per Hindu rites and customs, as the parties belong to the Scheduled Tribe, otherwise profess Hinduism, but their marriage being out of purview of the Act, in the light of Section 2 (2) of the Act, are thus governed only by their customs and usage. Therefore, LNA, J the divorce petition filed by the petitioner is clearly barred under the provisions of Section 2(2) of the Act."
21. In Rupa Debbarma v. Tapash Debbarma, a Division Bench of Tripura High Court held as under:
"[30] Clause 25 of the Article 366 of the constitution on the other hand defines the expression "scheduled tribe" and Article 342 lays the manner in which Tribe may be notified. This has been done by the Constitution (Scheduled tribe) Order, 1950 and by the Constitution (Scheduled tribe) Order 1956. Sub-section 2 of Section 2 of the said Act has the imminent effect of the statutory exclusion that the person belonging to such notified tribe will in the matter of marriage, continue to be governed by their customary laws, which are akin to the personal law and hitherto applied to them, and not by any provision of the said Act, unless the central government by the notification otherwise directs. There is no dispute at the bar that no such notification has been issued by the central government. Anom Apong (supra) is quite distinguishable. As Adi tribe was not notified when two man and woman married as per Hindu rites and customs which was prevalent at the time of their marriage in their community. But when the dissolution of marriage was sought by a suit instituted under Hindu Marriage Act the question that had been raised whether Sub-section 2 of Section 2 of the Hindu Marriage Act would create a bar in applying the Hindu Marriage Act. The objection has been negatived on the ground that since the marriage was solemnized as per Hindu customs and rites when the said tribe was not notified under Article 342 of the Constitution. The Hindu marriage act would apply for dissolution of marriage.
LNA, J But the same principle would not apply if the tribes are notified under Article 342 of the Constitution.
..
32] So far the question of conversion is concerned, simply because the marriage has been performed following the Hindu customs and rites, it cannot be stated that parties intending marriage had been converted to Hinduism. Conversion is a conscious abandonment of the customs of the community or the religion and adoption of the religion which someone intends to be converted to. None of the appellant and the respondent did not claim to have converted to Hinduism by abandoning their customs. Thus, there had been no conversion and by considering "conversion", the Hindu Marriage Act cannot be applied. This court however, will affirm the finding in respect of cruelty as returned by the Addl. District Judge. However, the desertion has not been proved on preponderance of probabilities in as much as, the appellant has clearly stated that she had intention to restitute the marriage. But this finding will have no effect in the suit as the suit itself is not maintainable having barred by Section 2(2) of the Hindu Marriage Act, 1955."
22. The judgments of the Hon'ble Supreme Court in Labishwar Manjhi v. Pran Manjhi and Satprakash Meena v. Alka Meena squarely apply to the facts of the present case. However, the facts of the remaining cases referred to by the learned Amicus Curiae and the facts of the present case are completely different, as there was challenge by one of the parties to the proceedings on the LNA, J applicability of Hindu Marriage Act and Hindu Succession Act on the ground that they belong to Scheduled Tribe Community and therefore, they are not governed by the Hindu Marriage Act and Hindu Succession Act, and thus, the said judgments have no application to the present case.
23. In Chittapuli v. Union Government 6, the High Court of Andhra Pradesh held as under:
"13. The provisions of Section 2(2) of the Act would have to be interpreted to mean that any member of a notified tribe can refuse to participate in any proceeding under the Act of 1955 on the ground that he/she is a member of a notified tribe and is following tribal customs and is not bound by or following Hindu customs. However, the same cannot bar a member of a notified schedule tribe who is hinduised from invoking the provisions of the Act of 1955, especially when the spouse is a non tribal Hindu.
14. Accordingly, the petitioner would be entitled to move an application for dissolution of marriage, under the Hindu Marriage Act, 1955, before the appropriate Civil/ Family Court having jurisdiction."
24. A perusal of the record discloses that both the petitioner and the respondent belong to Lambada Caste (Scheduled Tribe Community) and their marriage was solemnized as per the customs MANU/AP/0705/2020 LNA, J and traditions of Hindu community. However, the petition filed by them under Section 13(B) of the Act was returned on the ground that it was not maintainable in view of bar under Section 2(2) of the Act.
25. There is no challenge to the contentions of the petitioner and the respondent that they have been following the Hindu traditions and customs. In fact, in the petition filed under Section 13(B) of the Act, the petitioner and the respondents specifically contended that their marriage was solemnized as per the rights and customs of Hindu Community. Further, the material filed by the petitioner i.e., wedding card and photographs shows that the marriage of the petitioner and the respondent was solemnized as per the Hindu Customs.
26. The Hon'ble Supreme Court in Labishwar Manjhi v. Pran Manjhi, the Delhi High Court in Satprakash Meena v. Alka Meena, and the High Court of Andhra Pradesh in Chittapuli v. Union Government, have held that the provisions of exclusion under Section 2(2) of the Act are meant to protect customary practices of recognized Tribes. However, if the parties are following Hindu LNA, J traditions, customs and that they are substantially Hinduised, they cannot be relegated to customary Courts, that too, when they themselves admit that they are following Hindu rites, customs and traditions.
27. In the light of the aforesaid discussion and the legal position, this Court is of the considered view that the trial Court ought not to have returned the petition filed by the petitioner and the respondent under Section 13(B) of the Act, on the ground of want of jurisdiction under Section 2(2) of the Act.
28. Therefore, the Civil Revision Petition is allowed and the impugned order dated 22.08.2023 is set aside and the trial Court is directed to number the petition and decide the same in accordance with law, duly taking into consideration the material available on record.
29. This Court would like to place on record the assistance rendered by Sri Kowturu Pavan Kumar, Amicus Curiae.
30. However, it is made clear that this Court has not expressed a general opinion on the applicability of Section 2(2) of the Act to the LNA, J O.Ps. filed by the persons belonging to Scheduled Tribe Community. The Court concerned shall deal with the said issue in accordance with law as per the facts and circumstances of each case and decide the same, duly taking into consideration the material placed on record in support/proof of their contention that they are following Hindu customs, traditions and that they are substantially Hinduised.
Pending miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
__________________________________ LAXMI NARAYANA ALISHETTY, J Date: 22.01.2024 Note: L.R. Copy to be marked B/o va
Judgment No.2
IN THE HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
* * * * *
HON’BLE SRI JUSTICE K. LAKSHMAN
AND
HON’BLE SMT. JUSTICE P. SREE SUDHA
FAMILY COURT APPEAL NO.338 OF 2013
Between:
Dr. N. Surya, S/o Mallu .. Appellant
Vs.
Smt. N. Sushma, W/o Dr. N. Surya .. Respondent
DATE OF JUDGMENT PRONOUNCED: 20.03.2024
HON’BLE SRI JUSTICE K. LAKSHMAN
AND
HON’BLE SMT. JUSTICE P. SREE SUDHA
F.C.A.No.338 OF 2013
ORDER: (Per Hon’ble Sri Justice K. Lakshman)
Heard Sri Parsa Anantha Nageswara Rao, learned counsel for
the appellant and Sri A. Prabhakar Rao, learned counsel for the
respondent.
2. Challenging the impugned order and decree dated 28.09.2012 in
O.P.No.214 of 2010 passed by the learned Chairman, Motor
Accidents Claims Tribunal-cum-III Additional District Judge,
Warangal, appellant-husband preferred the present appeal. He has
filed the aforesaid O.P under Section 12 (1) (ia) (ib) and (1A) of the
Hindu Marriage Act against the respondent-wife seeking dissolution
of marriage on the ground of cruelty as well as desertion.
3. During the pendency of the said O.P, respondent-wife had filed
a memo stating that the parties belong to Tribal Community
(Lambadies), but the petition has been filed by the petitioner under the
Hindu Marriage Act. Therefore, the learned Family Court has no
jurisdiction to try this case, as the parties are not governed by the
Hindu Marriage Act. Therefore, according to respondent, the
4
aforesaid O.P.No.214 of 2010 is not maintainable. She has also
referred Section 2(2) of Hindu Marriage Act and also relying on
decision of the Hon’ble Supreme Court reported in AIR 2001 SCC
938. Relying on the said principle and also considering the said
memo, vide impugned order dated 28.09.2012, learned Family Court
dismissed the said O.P. Challenging the said order, appellant-husband
preferred the present appeal.
4. There is no dispute that the aforesaid O.P was posted for
inquiry. At that stage, the respondent had filed a memo stating that
the parties belong to Tribal Community (Lambadies). Therefore, the
said O.P is not maintainable and they are not governed by provisions
of Hindu Marriage Act. Relying on the said memo and referring to the
principle laid down by Hon’ble Apex Court in AIR 2001 SCC 938,
learned Family Court dismissed the said O.P.
5. Sri Parsa Anantha Nageswara Rao, learned counsel for the
appellant would contend that learned Family Court cannot decide O.P
basing on the memo filed by the respondent. Learned Family Court
has to decide the said issue along with other issues in main O.P itself
after conducting full-fledged trial. Thus, learned Family Court erred
in dismissing the O.P without conducting any inquiry.
6. Whereas, Sri A. Prabhakar Rao, learned counsel appearing for
the respondent fairly submits that the learned Family Court has to
decide the said aspect during trial after conducting full-fledged trial.
7. In the light of the aforesaid submissions, it is relevant to extract
Section 2(2) of the Hindu Marriage Act, 1955:-
“Notwithstanding anything contained in sub-section
(1), nothing contained in this Act shall apply to the
members of any Scheduled Tribes within the meaning of
clause (25) of Article 366 of the Constitution unless the
Central Government, by notification in the Official Gazette,
otherwise directs.”
8. In Labishwar Manjhi vs. Pran Manjhi And Ors1
, the Apex
Court introduced the concept of “Hinduised” individuals. It was held
if the members of Scheduled Tribe follows customary practices and
traditions of Hinduism only, then they will be guided once they
establish they are “Hinduised”. Relevant portion is extracted below:-
“The finding is that they are following the customs of the Hindus
and not of the Santhal’s. In view of such a clear finding, it is not
possible to hold that sub-section 2 of Section 2 of Hindu
Succession Act excludes the present parties from the application
of the said Act. Sub-section 2 only excludes members of any
Scheduled Tribe admittedly as per finding recorded in the present
case though the parties originally belong to the Santhal Scheduled
Tribe they are Hinduised and they are following the Hindu
traditions. Hence, we have no hesitation to hold that Sub-section
2 will not apply to exclude the parties from application of Hindu
Succession Act. The High Court fell into error in recording a
finding to the contrary.”
1 (2000) 8 SCC 587
6
9. In Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah2
,
the Apex Court held as follows:-
“8. No custom can create an offence as it essentially
deals with the civil rights of the parties and no person
can be convicted of any offence except for violation of
law in force at the time of commission of the act
charged. Custom may be proved for the determination
of the civil rights of the parties including their status,
the establishment of which may be used for the
purposes of proving the ingredients of an offence
which, under Section 3(37) of the General Clauses Act,
would mean an act or omission punishable by any law
by way of fine or imprisonment. Article 20 of the
Constitution, guaranteeing protection in respect of
conviction of offence, provides that no person shall be
convicted of any offence except for violation of law in
force at the time of commission of the act charged as
an offence. Law under Article 13 clause (3) of the
Constitution means the law made by the legislature
including intra vires statutory orders and orders made
in exercise of powers conferred by the statutory rules.
9. For custom to have the colour of a rule or law, it is
necessary for the party claiming it to plead and
thereafter prove that such custom is ancient, certain
and reasonable. Custom being in derogation of the
general rule is required to be construed strictly. The
party relying upon a custom is obliged to establish it by
clear and unambiguous evidence”
10. In Amrit Lal Chakma vs. Babita Chakma3
, a Division Bench
of Tripura High Court in paragraph Nos.16 and 19 held as follows:-
“16. In the present case, the parties have pleaded
that though they are Scheduled Tribes but they are
Buddhist and have solemnised and registered their
marriage under the Hindu Marriage Act, 1955. It is
2 AIR 2001 SCC 938
3 2023 SCC Online Tri 830
7
for the parties to plead and prove that they were
sufficiently Hinduised for being governed by the
provisions of the Hindu Marriage Act, 1955. The
provisions of Section 2(1)(b) of the Hindu Marriage
Act also provides that the Act applies to any person
who is a Buddhist, Jaina or Sikh by religion. As such,
the opinion of the learned Family Court that simply
because the parties belong to Scheduled Tribe; their
application under the Hindu Marriage Act, 1955
could not be entertained, would not be proper as the
parties have professed that they have solemnized their
marriage under Hindu Marriage Act and have also
got it registered under Section 8(1) of the Act of 1955.
The learned Court should have allowed the parties to
plead and prove that they are Hinduised and are
governed by the Hindu Marriage Act, 1955 and that
they had got their marriage registered under Section
8(1) of the Hindu Marriage Act, 1955.”
“19. …..Simply being guided by the fact that the
parties did belong to a Scheduled Tribe community,
the suit ought not to have been dismissed. The
learned Family Court ought to have framed an issue
to that effect that whether the parties are sufficiently
Hinduised to be governed by the Hindu Marriage
Act……..”
11. In Baga Tirkey vs. Pinki Linda4
, a Division Bench of
Jharkhand High Court in paragraph No.26 held as follows:-
“26. Therefore, on a detailed consideration of the
submissions of learned counsel for the parties and
valuable assistance rendered by the learned Amicus
Curiae, we are of the considered opinion that the
learned Family Court committed an error of jurisdiction
in holding that the suit instituted by the
petitioner/appellant herein was not maintainable, as
there was no codified substantive law applicable to the
parties to marriage, like Hindu Marriage Act, 1955,
Special marriage Act, 1954 and Divorce Act, 1869. It
also committed an error in holding that the petitioner is
4 2021 SCC Online Jhar 1339
8
seeking relief of divorce on the basis of customs and
usage, applicable to the parties, which can be exercised
only by the Community Panchayat and not by Court of
Law. The legislature having consciously conferred
jurisdiction upon the Family Court to adjudicate on
matters, enumerating under Clauses-(a) to (g) of the
Explanation to Section 7(1) including a suit or
proceeding between the parties to the marriage for
decree of nullity of marriage or restitution of conjugal
rights or judicial separation or dissolution of marriage,
the learned Family Court could not have held the suit to
be not maintainable as there is absence of a substantive
codified law, governing the parties.”
12. In the case of Yamanaji H. vs. Nirmala5
, the Apex Court
enunciated a course to be followed by Family Courts in matters of
divorce involving customary law. In paragraph No.7, it has been held
as under:-
“….As per the Hindu Law administered by courts
in India divorce was not recognized as a means to put an
end to marriage, which was always considered to be a
sacrament, with only exception where it is recognized 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.
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.
5 (2002) SCC 637
9
13. In Subramani vs. M. Chandralekha6
, the Apex Court in
paragraph No.10 held as follows:-
“It is established by 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 person
propounding such custom…..”.
14. In the light of the aforesaid principles, parties have to plead and
prove that provisions of the Hindu Marriage Act are not applicable
and they are not guided by the said provisions during the trial. The
learned Family Court has to frame an issue on the same and decide the
same along with other issues after conducting full-fledged trial.
Instead of doing so, learned Family Court dismissed the O.P filed by
appellant-husband relying on memo filed by respondent-wife. Thus,
learned Family Court erred in dismissing the aforesaid O.P simply
relying on the memo. Therefore, impugned order is liable to be set
aside and accordingly it is set aside. Matter is remanded back to the
learned Chairman, Motor Accidents Claims Tribunal-cum-III
Additional District Judge, Warangal with a direction to decide the
aforesaid O.P.No.214 of 2010 afresh after affording an opportunity to
appellant as well as respondent and they are at liberty to take all the
pleas and grounds including applicability of provisions of the Hindu
6 (2005) 9 SCC 407
10
Marriage Act before the learned Family Court and it is for the learned
Family Court to decide the same along with other issues.
15. Since the O.P is of the year 2010, learned Family Court is
directed to decide the said O.P by conducting day to day proceedings
as expeditiously as possible preferably within a period of three (03)
months from the date of receipt of copy of this order.
16. In the light of the aforesaid discussion, this appeal is allowed.
There shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending shall
stand closed.
___
______________
K. LAKSHMAN, J
_________________
P.SREE SUDHA, J
20.03.2024
Note:
LR Copy be marked
b/o
ssy
