The judgment emphasizes the significance of pleading and proving custom or usage in cases involving the applicability of the Hindu Marriage Act, especially in relation to marriages involving members of Scheduled Tribes.

ORDER

Rameshwar Vyas, J. - The instant revision petition has been filed by husband being aggrieved by the order dated 15.4.2021 passed by the learned Additional District Judge No.1, Barmer in Civil Misc. Case No. 94/2015 (07/2014), whereby application under Section 2(2) of the Hindu Marriage Act read with Order 7 Rule 11 CPC filed by him during proceedings under Section 13 of Hindu Marriage Act was dismissed.

Brief facts of the case are as under:

2. Petitioner - wife preferred a petition under Section 13 of the Hindu Marriage Act seeking dissolution of marriage against the husband with the averment that she is Paliwal by caste and respondent - husband is by caste Meena. The provisions of Hindu Marriage Act are applicable for them. There was love affair between them since 2005. After that she realized the ill-behavour of the petitioner, she tried to keep distance from the petitioner. Then the respondent started to make mental and psychological pressures on respondent and they got married in the year 2011 in Arya Samaj Temple, Jaipur. Petitioner - wife. Alleging some incidents of cruelty committed against her, she filed the petition under Section 13 of Hindu Marriage Act for dissolution of marriage solemnized between them on 14.2.2011.

3. In reply to the petition under Section 13 of the Hindu Marriage Act, respondent admitted averments regarding caste of the parties and applicability of the provisions of Hindu Marriage Act on them. However, he denied the allegations of cruelty levelled against the respondent.

4. After framing of issues, on 4.3.2016 evidence of petitioner side was started. However, during cross-examination an application was filed by the respondent - revisionist herein to the effect that he is Meena by caste and member of Scheduled Tribe category. Therefore, the provisions of Hindu Marriage Act are not applicable in the matter. The said application was rejected by the impugned order upholding that marriage was solemnized between the parties in Arya Samaj Temple and not as per customs of the Scheduled Tribe. Only one member belongs to Scheduled Tribe. Learned trial court was of the opinion that the petition for dissolution of marriage is maintainable under the provisions of Hindu Marriage Act. Hence, the application filed by the respondent under Order 7 Rule 11 CPC read with Section 2(2) of Hindu Marriage Act was rejected.

5. Aggrieved against the above order, this revision petition has been filed by the respondent - husband. The application was contested by the petitioner - wife by filing reply.

Heard the learned counsel for the parties and perused the material available on record.

6. While relying on the judgment of Jharkhand High Court in the matter of Rajendra Kumar Singh Munda vs. Smt. Mamta Devi : FA No.186/2008 decided on 20.8.2015 and judgment of Tripura High Court in the matter of Smt. Rupa Debbarma vs. Sri Tapash Debbarma : MAT APP 06 of 2018, learned counsel for the respondent - revisionist herein submits that one of the party to the marriage is a member of Scheduled Tribe. Hence, the provisions of Hindu Marriage Act are not applicable on them and the learned trial court committed error in rejecting his application.

7. On the other hand, learned counsel for the petitioner relied on the judgment of Hon'ble Apex Court in the matter of Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah & Anr : Appeal (Crl.) No. 186/2001 (SLP (Crl) No. 2436/2000), decided on 14.2.2001, and judgment passed by this Court in the matter of Badri & Ors. vs. Gokul & Ors : S.B. Civil Second Appeal No. 72/1986 decided on 8.8.2013.

8. Provisions of Section 2(2) of Hindu Marriage Act reads as under:-

Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.

9. It will be beneficial to reproduce the provisions o