JUDGMENT :

Heard learned counsel for the parties and learned Amicus Curiae.

2. Learned Principal Judge, Family Court, Ranchi by the impugned judgment dated 16.3.2018, has dismissed Original Suit No. 583 of 2017, on the ground of maintainability.

3. The suit was instituted under Section 7(1)(a) of the Family Courts Act, 1984 read with Para-5.2 of the ‘Customary Laws of Munda and Oraons’ as delineated in the book “The Customary Laws of the Munda and the Oraon” by Dr. J. P. Gupta.

4. The parties belonged to Oraon Tribal Community and their marriage was performed on 27th April, 2015 at Ranchi as per the customs of the said community. On the ground of adultery, the appellant wanted divorce.

5. Learned Family Court referred to the book “The Customary Laws of the Munda and the Oraon” and held that there is no substantive codified law, applicable to the parties like the Hindu Marriage Act, 1955, Special Marriage Act, 1954 and Divorce Act, 1869. Section 2(2) of Hindu Marriage Act, 1955 makes the Act inapplicable to the members of any Schedule Tribe within the meaning of Article-366 of the Constitution of India, unless notified by the Central Government. Therefore, they were not governed by the Hindu Marriage Act. Learned Family Court was of the view that since the petitioner/appellant is seeking divorce on the basis of the customs and usage applicable to the parties, which can be exercised only by the Community Panchayat and not by a Court of Law, the petition is not maintainable.

6. During the pendency of this appeal considering the importance of the issues, affecting the rights of the persons, belonging to Tribal Community, Mr. Kumar Vaibhav along with Shubhashis Rasik Soren, learned Advocate were appointed as Amicus Curiae to assist the Court. The Tribal Research Institute, Government of Jharkhand, Ranchi, Director, Judicial Academy, Jharkhand and the Vice-Chancellor, National University of Study and Research in Law (NUSRL) were requested to provide necessary assistance in the matter to this Court.

7. Learned Amicus Curiae has submitted a report after interaction with the Tribal Research Institute (TRI) and elderly persons of Oraon Community, convened by the TRI. Some valuable inputs have also been provided by the National university of Studies and Research in law. The Judicial Academy, Jharkhand also submitted a report, prepared by the Research Scholars containing the statutory framework of the Family Courts’ Act, 1984 and decisions rendered by different courts on matter concerning matrimonial dispute between the members of Schedule Tribe. Learned counsel for the parties have also rendered assistance to the Court. Since the suit was dismissed on the ground of maintainability, we are not entering into the merits of the case of the parties except taking note of the foundational facts that they belong to the Oraon Tribal Community and are governed by the Customary Laws.

8. From the inputs provided by learned Amicus Curiae, it is evident that the Oraon community is governed by the Customary Laws, there is a hierarchy of Panchayats in the community such as ‘Padha Panchayat’, where the parties approach in case of divorce / dissolution of marriage. If the matters remained unresolved, it can also be taken up to the body called ‘Bisusendra’, a congregation of ‘Padha Panchayat’. The parties are summoned by the Panchayat and after hearing both the sides, decision is taken. Non-adherence to the summons or its verdict leads to social ostracization, which is described as ‘Hucca Pani Bandh’, ‘Kutumb Chilan’ and ‘Chuna tika’. The chances of non-adherence to the summons of the Panchayat are rare.

9. We are, however, in the present facts of the case, required to test whether the finding of the learned Family Court that the suit was not maintainable since there is no codified substantive law applicable to the parties, is correct or not. In this regard, it is pertinent to refer to the scheme and object of the Family Courts Act, 1984. The Family Courts Act, 198