Members of Scheduled Tribes who follow Hindu customs can invoke provisions of the Hindu Marriage Act for divorce, negating the exclusion principle under Section 2(2).

C.A.V. Judgment

Sanjay K. Agrawal, J.

1. Invoking the jurisdiction of this Court under Section 19(1) of the Family Courts Act, 1984, the appellants herein i.e. wife & husband have preferred this appeal questioning legality, validity and correctness of the impugned judgment & decree dated 12-8-2025 passed by the Judge, Family Court, Bastar at Jagdalpur in Civil Suit No.11A/2025, by which their application for dissolution of marriage filed under Section 13B of the Hindu Marriage Act, 1955 (for short, ‘the Act of 1955’) seeking divorce on the basis of mutual consent, has been rejected finding no merit.

2. The aforesaid challenge has been made on the following factual backdrop: -

(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the civil suit before the Family Court.)

2.1) Appellant No.1 herein/wife belongs to Scheduled Caste, whereas appellant No.2 herein/husband belongs to Scheduled Tribe. It is their case that their marriage was solemnized on 15-4-2009 and they were blessed with a son namely, Jaynil Mandavi on 28-12-2011 who is residing with wife i.e. appellant No.1 and thereafter, they started living separately with effect from 6-4-2014. It is their admitted case in the application filed under Section 13B of the Act of 1955 that marriage between them was performed according to the Hindu customs and ceremonies including performance of saptpadi and they are following the custom of Hindus and not of their community. Their statements were also recorded before the Family Court wherein they have specifically stated that their marriage was solemnized as per the custom and traditions of the Hindu community including the custom of saptpadi and they are following the Hindu traditions and customs. However, the Family Court by its impugned judgment rejected the application holding that by virtue of Section 2(2) of the Act of 1955, the said Act is not applicable to the members of Scheduled Tribe and therefore the application under Section 13B seeking divorce on the basis of mutual consent cannot be entertained, which is sought to be challenged by way of this appeal.

3. Mr. Ishan Verma, learned counsel appearing on behalf of the appellants herein/wife & husband, would submit that once the parties, particularly appellant No.2 herein/husband, have stated that they are following the Hindu customs and traditions and their marriage was solemnized according to the Hindu rites and rituals including performance of saptpadi, therefore, they have become Hinduised, it was not open to the Family Court to suo motu reject the application holding that by virtue of Section 2(2) of the Act of 1955, the provision relating to mutual divorce as contained in Section 13B of the Act of 1955 would not be applicable and as such, the impugned judgment & decree deserve to be set aside.

4. Mr. Manoj Paranjpe, learned Senior Counsel appearing as amicus curiae, would submit that as per the admitted case of the parties, marriage of the parties was solemnized in accordance with the rites and customs prevalent in Hindus including performance of saptpadi, therefore, it was not open for the Family Court to enter into the dispute of applicability of Section 2(2) of the Act of 1955, as appellant No.2/husband being member of Scheduled Tribe has voluntarily choose to follow the Hindu customs, traditions and rites, and they cannot be kept out of the purview of the provisions contained in the Act of 1955. He would rely upon the decision of the Supreme Court in the matter of Labishwar Manjhi v. Pran Manjhi and others , (2