Point of Law:Hindu Law - 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.

Headnote:
Hindu Marriage Act, 1955 - Family Courts Act - Section 7(1)(A) - Hindu Succession Act, 1956 - Section 2 - Indian Penal Code - Section 494 - Hindu Minority and Guardianship Act, 1956 - Hindu Adoptions and Maintenance Act, 1956 - Jurisdiction of Family Court - Member of a Schedule Tribe - Whether parties belonging to Tribe by virtue of having become Hinduised and changed their custom to that which is followed by Hindus are entitled to benefit of Section 14 of Hindu Succession Act, 1956 - Whether parties who admittedly belong to Santhal tribe are still continuing with their customary tradition or have they after being Hinduised changed their customs to that what is followed by Hindus - In light of aforesaid Judgments and legal advice given to her petitioner has now approached this Court for a direction to respondent Nos.1 to 3 to issue a notification in official gazette directing members of any Schedule Tribe to prefer applications before specified Court of law having jurisdiction to dissolve such marriages including her marriage - She also sought a direction to Judge Family Court to permit her to file a petition under Section 7(1)(A) of Family Courts Act to dissolve marriage performed between her and 4th respondent - Any notification of nature sought by Petitioner would be in nature of delegated legislation and same cannot be directed to be issued as that would fall foul of principle of separation of powers - As such first prayer cannot be granted - However there is merit in second contention in prayer –
Finding of the Court:
Section 2(2) of Act is a measure of protection and not a measure of exclusion - In a case where Act is sought to be applied to a member of a notified tribe it would be open to such a member to object to any such proceeding on ground that he/she is a member of a notified Schedule Tribe and as such he/she is entitled to benefit of Section 2(2) of Act – But when a member of such a notified tribe voluntarily submits himself or herself to jurisdiction of Court under Act on ground that he/she are Hindus who are Hinduised and follow Hindu customs and practices such member cannot be prohibited or barred at threshold from invoking such a provision - In present case husband is a non-tribal Hindu while wife is a tribal Hindu - Their marriage was performed under Act - Section 5 of Act states that marriages under Act can be solemnized only between two Hindus - In such a case Petitioner can certainly contend subject to proof that she is a Hindu following Hindu practices and beliefs and would be entitled to benefits and remedies available under Act - Another facet of this case is that petitioner cannot divorce her husband according to customs of tribe to which she belongs as husband is not a tribal – Simultaneously if she is not permitted to divorce husband under Act on ground that sub-section (2) of Section 2 of Act bars her from initiating any proceedings under said Act Petitioner would have no remedy - Provisions of Section 2(2) of Act would have to be interpreted to mean that any member of a notified tribe can refuse to participate in any proceeding under Act of 1955 on 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 same cannot bar a member of a notified schedule tribe who is hinduised from invoking provisions of Act of 1955 especially when spouse is a non tribal Hindu –
Result: Writ petition is disposed of

ORDER :

The petitioner belongs to a Schedule Tribe called Bagatha, which is a tribe notified under Article 342 of the Constitution of India. She had married the 4th respondent, who is not a member of a Schedule Tribe and is a Hindu, on 15.05.2010, according to Hindu customs and rites. This marriage was also registered before the Registrar for Marriages, Visakhapatnam, on 02.02.2012 under the Hindu Marriage Act, 1955 (for short, “the Act”). Later, disputes arose between the petitioner and her husband. When the petitioner sought to file a petition for dissolution of the marriage under the Act of 1955, she was advised that Section 2(2) of the Act precluded her from invoking the jurisdiction of the Family Court under the said Act. She was also informed that the Hon’ble Supreme Court in the case of Surajmani Stella Kujur vs. Durga Charan Hansdah, AIR 2001 SC 939, had held that members of the schedule tribes notified under Article 342 of the Constitution would not be entitled to approach the Court under the Act of 1955. She was also furnished with a Judgment dated 27.09.2018 of the Family Court-cum-V Additional District Judge, Visakhapatnam, in O.P.No.1738 of 2015, wherein a petition filed by a member of a schedule tribe against her husband who is also a member of schedule tribe had been rejected on the ground of Section 2(2) of the Act.

2. In the light of the aforesaid Judgments and legal advice given to her, the petitioner has now approached this Court for a direction to respondent Nos.1 to 3 to issue a notification in the official gazette directing the members of any Schedule Tribe to prefer applications before the specified Court of law having jurisdiction to dissolve such marriages including her marriage. She also sought a direction to the Judge, Family Court, Visakhapatnam, to permit her to file a petition under Section 7(1)(A) of the Family Courts Act to dissolve the marriage performed between her and the 4th respondent. Any notification, of the nature sought by the Petitioner, would be in the nature of delegated legislation and the same cannot be directed to be issued as that would fall foul of the principle of separation of powers. As such the first prayer cannot be granted. However, there is merit in the second contention in the prayer.

3. The petitioner before the Hon’ble Supreme Court in Surajmani Stella Kujur’s case (cited supra) sought to file a complaint against her husband under Section 494 of the Indian Penal Code, on the ground that her husband had contracted a second marriage during the subsistence of the marriage between her and her husband. The contention of the petitioner therein was that their tribal customs mandate monogamy as a rule and as such, solemnisation of a second marriage by the husband of the petitioner would make the second marriage void and the husband of the petitioner would be liable for prosecution. The Hon’ble Supreme Court, after going into the pleadings, evidence and proofs placed before the Court, had held that since none of the pleadings or evidence made out such an alleged custom and in view of the fact that both the petitioner and her husband are members of a tribe notified under Section 343 of the Constitution, no case would be made out against the husband of the petitioner therein. However, the Hon’ble Supreme Court recorded that the petitioner was at liberty to get her right established by way of civil proceedings in a competent Court of jurisdiction. The Hon’ble Supreme Court, while considering the aforesaid issue, had recorded the concession given by the petitioner that the parties to the petition are two Tribals, who otherwise profess Hinduism, but their marriage, being outside the purview of the Act of 1955 in the light of Section 2(2) of the Act, would be governed by the Santal customs and usage. In these circumstances, it may not be appropriate to draw a conclusion that the ratio in this Judgment is to the effect that Tribals who profess Hinduism are outside the purview of the Act

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2020 Supreme(AP) 772

Cases Referred (2)