JUDGMENT :

1. Whether the order dated 30.07.2012 passed by the Principal Senior Civil Judge and A.C.J.M., Puttur, D.K. in R.A.No.23/2007 setting aside the order dated 04.01.2007 in O.S.No.20/2006 passed by the Principal Civil Judge (Jr.Dn.), Puttur, D.K. and remanding the matter to the Trial Court is sustainable in law is the question involved in this case.

2. The appellant and the respondent belongs to Marathi Community which comes under a Scheduled Tribes. Their marriage was performed on 07.05.2001 at Bhuvanendra Kala Mandira, Puttur as per their customs. After some time some trouble arose in the marriage. Therefore, appellant filed M.C.No.25/2003 on the file of the Principal Civil Judge (Senior Division) Puttur seeking dissolution of the marriage under Section 13(1) (ib) of Hindu Marriage Act, 1955.

3. Respondent contested the said petition on several grounds, one amongst them were that Section 2 (2) of the Hindu Marriage Act bars application of the said Act to the persons belonging to Scheduled Tribes. Thereafter the appellant filed memo before the Senior Civil Judge, Puttur in M.C.No.25/2003 seeking withdrawal of the petition on the ground that he has already divorced the respondent as per their custom. Therefore, the petition was dismissed.

4. Respondent filed O.S.No.20/2006 on the file of the Principal Civil Judge (Junior Division) Puttur, D.K. against the appellant for permanent injunction from he contracting second marriage.

5. The appellant appeared in the said suit and filed his written statement contending that there is already a customary divorce and Hindu Marriage Act does not apply to them etc.

6. On the basis of such pleadings, the Trial Court framed the following issues:

"1. Whether plaintiff proves that the marriage between plaintiff and defendant still subsists?

2. Whether plaintiff proves that defendant is trying to enter into second marriage during the subsistence of marriage with plaintiff?

3. Whether defendant proves that there is no bar to the persons from scheduled tribes to enter into second marriage during subsistence of first marriage?

4. Whether plaintiff is entitled for relief claimed?

5. What order or decree?”

7. When the matter was set down for plaintiff’s evidence, appellant/defendant filed memo to treat issue No.3 as preliminary issue.

8. The learned Civil Judge vide order dated 04.01.2007 treated issue No.3 as preliminary issue and held that Hindu Marriage Act, 1955 which bars bigamous marriage is not applicable to the parties. The Trial Court further held that there is no bar to the persons belonging to Scheduled Tribes to contract second marriage and therefore plaintiff cannot maintain the suit. Ultimately Trial Court dismissed the suit holding issue No.3 in appellant’s favour.

9. The respondent challenged the said order before the Principal Senior Civil Judge, Puttur, D.K. in R.A.No.23/2007. The First Appellate Court on hearing the parties by the impugned order set aside the Trial Court’s order and remanded the matter to the Trial Court with a direction to record the evidence of both sides and dispose of the matter in accordance with law on the following grounds:

i. Defendant did not demonstrate that the jurisdiction of the trial Court is ousted in entertaining the suit for permanent injunction;

ii. The contention of the defendant that there is already customary divorce, requires pleadings and proof;

iii. Defendant’s contention that there is no prohibition as per the customs of the Scheduled Tribes people to under go bigamous marriage requires evidence and therefore issue No.3 could not have been treated as preliminary issue.

10. Sri G. Balakrishna Shastry, learned counsel for the appellant submits that Sub Section 2 of Section 2 of Hindu Marriage Act, 1955 bars operation of the said Act to persons belonging to the Scheduled Tribes. He further submits that once if the Hindu Marriage Act 1955 does not apply, there is no legal bar for contracting bigamous marriage. He further submits that the Civil Court can