Judgement Key Points

Madan B. Lokur, C.J. :-

The appellant is aggrieved by a judgment and de­cree dated 6-4-2006 passed by the learned District Judge, Dhemaji in T. S. (D) No. 2 of 2005.

2. The appellant husband belongs to the Adi Tribe in Arunachal Pradesh while the respondent wife is a Hindu. They were mar­ried in 1991 in Pasighat (Arunachal Pradesh). The parties have three children born from the wedlock.

3. The respondent wife alleged that the appellant husband treated her with cruelty and therefore she filed a petition for a divorce under Section 12 read with 13(1)(ia) of the Hindu Marriage Act, 1955 (for short the Act).

4. The appellant husband contested the proceedings and stated that the parties were married according to the Adi customary law. It was also contended that the appellant hus­band belongs to a Scheduled Tribe and the provisions of the Act were not applicable to him.

5. On these broad pleadings, the learned District Judge framed the following issues:-

"(1) Whether the suit is maintainable?

(2) Whether there is a cause of action, for the suit?

(3) Whether the marriage was solemnized in accordance with Hindu Religious Rites or in accordance with Tribal Customary Prac­tice?

(4) Whether the petitioner was treated with cruelty by the respondent as alleged?

(5) Whether the petitioner is entitled to reliefs as prayed for?"

6. With regard to the 1st issue, the learned District Judge concluded that the suit was maintainable. With regard to issue No.3, it was held that the parties were married ac­cording to the Adi tribal customs. With re­gard to Issue Nos. 2 and 4, it was held that there is a cause of action in favour of the respondent wife and that the activities of the appellant husband amounted to cruelty.

7. Accordingly, while deciding Issue No. 5, it was held by the learned Trial Judge that the respondent wife is entitled to an alterna­tive relief of a decree of judicial separation under Section 13-A of the Act. With regard to the children born from the wedlock, it was held that time should be given to the parties for a rapprochement. The children, we are told, are living with the respondent wife.

8. Feeling aggrieved, the appellant hus­band has filed this matrimonial appeal chal­lenging the decree of judicial separation passed by the learned Trial Judge.

9. The main submission (and in fact the only submission) of learned counsel for the appellant husband is that the parties were admittedly married according to the Adi cus­tomary law and not according to Hindu rites and therefore, the Trial Judge had no juris­diction to entertain the petition under the pro­visions of the Act. Alternatively, it is sub­mitted that even if the learned Trial Judge had jurisdiction to entertain the matter, on the promulgation of Act No. 10 of 2003 passed on 8th January, 2003, the Constitu­tion (Scheduled Tribes) Order, 1950 was amended thereby including the Adi Tribe from Arunachal Pradesh as a Scheduled Tribe. As such, in terms of Section 2(2) of the Act, the Trial Judge had no jurisdiction to continue with the matter in so far as the appellant husband is concerned.

10. Section 2 of the Act (we are really concerned with Section 2(2)) reads as fol­lows :

"2. 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, 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

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