The main legal point established in the judgment is the inapplicability of the Hindu Marriage Act, 1955 to the Nagesia Scheduled Tribe, based on constitutional provisions and judicial precedent.

JUDGMENT :

1. Appellant has preferred this First Appeal against the impugned judgment and decree dated 7-8-2019 passed in Civil Suit No. 23-A/2018 by District Judge, Balrampur at Ramanujganj CG whereby and whereunder he dismissed her application filed under Section 13 of the Hindu Marriage Act, 1955 (for short Act).

2. In brief the appellant's case is that her marriage was solemnized with respondent in the year 2006 in accordance with Hindu rites and rituals. He had become drunker and subjected her to cruelty. Once he had tried to kill her by pouring kerosene on her body.

3. In brief the respondent's case is that he had never subjected the appellant to cruelty, she had developed love affairs with the employee of bus by which she used to go to attend weekly meeting at office of Women and Child Development, Shankargarh.

4. Trial Court by the impugned judgment and decree dismissed the application of appellant. Being aggrieved the appellant has preferred this first appeal.

5. In brief, the appellant's case regarding appeal is that trial Court has not appreciated the evidence available on record in proper perspective. Trial Court did not consider that respondent had levelled false allegation upon her character which amounts cruelty.

6. In brief respondent's case regarding appeal is that appellant failed to prove the ground of cruelty for obtaining the divorce.

7. Point for determination :-

There are following points for determination in the case in hand-

(1) Whether suit of appellant is maintainable ?

(2) Whether after the solemnization of the marriage respondent had treated appellant with cruelty ?

(3) Whether appellant is entitled to get the decree of divorce ?

(4) Relief and costs.

Point for determination No. 1- Finding with reasons:-

8. As per the appellant's case she is by caste Nageshia and appellant is also by caste Nageshia.

9. There are following provisions in Section 2 of the "Act" - Application of Act- (1) This Act applies-

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation- The following persons are Hindus. Buddhists. Jainas or Sikhs by religion, as the case may be :-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh by religion and who is brought up as a members of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (i), 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.

(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section.

10. There is following provision in Article 366(25) of Constitution of India -

"Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution.

11. There is following provision in Article 342 of Constitution of India -

Sched