A decree passed by a court without jurisdiction is a nullity, and the provisions of the Hindu Marriage Act were not applicable to the parties as they were members of a scheduled tribe.

Tarlok Singh Chauhan, J.

The appellant has challenged the order passed by learned District Judge, Kullu, dated 21.12.2013 in H.M.P. No. 15 of 2011 whereby a decree of divorce was passed in favour of the petitioner and against the respondent under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the 'Act').

2. Shri Neeraj Gupta, learned counsel for the appellant has raised preliminary submission that the parties are the members of Scheduled Tribe and in terms of Section 2(2) of the Act, the provisions of Hindu Marriage Act are not applicable to the parties having been specifically excluded and, therefore, the learned Court below had no jurisdiction to entertain much less decide the lis.

3. This Court vide its order dated 22.8.2014 directed the parties to file affidavits as to whether they belong to scheduled tribe or not, within the meaning of Clause 25 of Article 366 of the Constitution of India. Pursuant to such directions, both the parties have filed the affidavits and it is abundantly clear from the perusal thereof that both the parties are members of Scheduled Tribes within the meaning of Clause 25 of Article 366 of the Constitution of India as notified by the Constitution (Schedule Tribe) Order, 1950 as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 63 of 1956, 108 of 1956, 18 of 1987 and 15 of 1990.

Sub Section 2 of Section 2 of the Act reads thus:

"(2) 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."

The aforesaid sub Section starts with the non-obstante clause and, therefore, has overriding effect overall the provisions of the Statute and it cannot be disputed that the judgment therefore rendered by the learned District Judge, Kullu is coram non-judice.

4. The learned counsel for the respondent has though made a faint attempt to canvass that no objection regarding jurisdiction was ever raised by the appellant before the learned Courts below and, therefore, the appellant is estopped from raising such a plea in these proceedings. I am afraid that such a plea cannot be accepted for more than one reason. Firstly, the Court cannot be conferred jurisdiction by consent of parties and in case there is inherent lack of jurisdiction, then the order passed by such court is void, ab initio and is a nullity and decision amounts to nothing.

5. Reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. and another (2005) 7 SCC 791 which reads as follows:

"29. Ms. Malhotra, then contended that Section 21 of the Code, requires that the objection to the jurisdiction must be taken by the party at the earliest possible opportunity and in any case where the issues are settled at or before settlement of such issues. In the instant case, the suit was filed by the plaintiff in 1988 and written statement was filed by the defendants in 1989 wherein jurisdiction of the court was 'admitted'. On the basis of the pleadings of the parties, issues were framed by the court in February, 1997. In view of the admission of jurisdiction of court, no issue as to jurisdiction of the court was framed. It was only in 1998 that an application for amendment of written statement was filed raising a plea as to absence of jurisdiction of the court. Both the courts were wholly wrong in allowing the amendment and in ignoring Section 21 of the Code. Our attention in this connection was invited by the learned counsel to Hira Lal v. Kali Nath, (1962) 2 SCR 747 and Bahrein Petroleum Co. v. Pappu, 1966 (1) SCR 461.

30. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (