ORDER :

1. Motai Bandra @ Ganesh Bandra filed an application under section 9 of the Hindu Marriage Act, 1955 seeking restitution of his conjugal rights with Smt. Madhuri Bandra @ Madhuri Samad with whom his marriage was solemnized on 18th April 2011. According to him, his marriage was solemnized as per Hindu rites and customs at village-Bankasai, Poicha, P.S. Rajnagar, District-West Singhbhum.

2. The respondent in her written statement filed before the Family Court stated that both parties are Scheduled Tribe belonging to ‘HO’ caste and their marriage was solemnized as per ‘HO’ customary law and, as such, petition under section 9 of the Hindu Marriage Act, 1955 was not maintainable.

3. The aforesaid petition under section 9 of the Hindu Marriage Act, 1955 which was registered as Original Suit No. 528 of 2015 (in short “restitution suit”) has been dismissed by the judgment dated 25th July 2018, on the ground that in view of the Section 2(2) of the Hindu Marriage Act, 1955 which was elucidated by the Hon'ble Supreme Court in Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah, (2001) 3 SCC 13, the restitution suit was not maintainable.

4. The Principal Judge, Family Court, East Singhbhum at Jamshedpur has held as under:

“8. Heard and perused the record. Admittedly both the sides herein, are Tribals and their marriage was solemnized in accordance with Sarna customs. As per settled law, the Hon'ble Jharkhand High Court has, vide judgment dated 20.08.2015, in F.A. No. 186/2008, in the case of Rajendra Singh Munda vs. Mamta Devi, by referring to the judgment of the Hon'ble Supreme Court in the case of Dr. Surajmani Stella Kujur vs. Durga Chandra Hansda, AIR 2001 SC 939 has held that, as the parties therein were members of Tribal Community, therefore, looking to section 2(2) of the Hindu Marriage Act, 1955 the said Act was not applicable upon the parties, therein. Section 2(2) of the Hindu Marriage Act, 1955 provides that “Notwithstanding anything contained in sub-section (1), nothing contained in this act shall apply to the member 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. On the basis of above discussions, I conclude that, in the instant case, Hindu Marriage Act is not applicable upon the parties herein. As such, this suit is not maintainable and accordingly, it is dismissed as not maintainable.”

5. In course of hearing, the learned counsel for the appellant tried to persuade this Court as regards maintainability of restitution suit on the ground that Smt. Madhuri Bandra @ Madhuri Samad has filed an application under section 125 of the Code of Criminal Procedure in which the appellant has been directed to pay maintenance to the tune of Rs. 15,000/- per month.

6. The learned counsel for the appellant has further drawn our attention to the judgment passed by this Court in Baga Tirkey vs. Pinki Linda and Another, F.A. No. 124 of 2018, wherein this Court has observed as under:

“27. Therefore, on a detailed consideration of the submissions of learned counsel for the parties and valuable assistance rendered by the learned Amicus Curiae, we are of the considered opinion that the learned Family Court committed an error of jurisdiction in holding that the suit instituted by the petitioner/appellant herein was not maintainable, as there was no codified substantive law applicable to the parties to marriage, like Hindu Marriage Act, 1955, Special Marriage Act, 1954 and Divorce Act, 1869. It also committed an error in holding that the petitioner is seeking relief of divorce on the basis of customs and usage, applicable to the parties, which can be exercised only by the Community Panchayat and not by Court of Law. The legislature having consciously conferred jurisdiction upon the Family Court to adjudicate on matters, enumerating under Clauses (a) to (g) of the Explanation to Section 7(1) including a suit or pro