The court ruled that parties from Scheduled Tribes can seek dissolution of marriage under customary law despite the statutory bar in the Hindu Marriage Act, finding sufficient grounds for divorce based on abandonment and proven cruelty.

JUDGMENT :

ARINDAM SINHA, J.

1. Mr. Agarwal, learned advocate appears on behalf of appellant-husband. He submits, his client is aggrieved by judgment dated 18th July, 2022 made by the family Court. By it there was order made for dismissal of the suit. According to him, the family Court erred in treating the suit as one carrying claim for dissolution of the marriage under provisions in Hindu Marriage Act, 1955. His client had invoked article 441 in Mulla’s Principles of Hindu Law, 13th Edition published by N. M. Tripathy, Private Limited, Bombay.

2. Appellant had invoked principles of Hindu Law because he had earlier filed for divorce invoking section 13 in the Act of 1955. The case was registered and numbered as Mat. Case no.118/295 of 2013-12 before the family Court. On 31st October, 2016 the suit was dismissed on contest on ground of maintainability, considering statutory bar provided under section 2(2). Respondent-wife had brought false complaint against appellant-husband causing him to be taken into custody. In appeal arising in the criminal proceeding, appellant-husband stood acquitted. Appellant-husband be released from the bond of marriage and for that he had again petitioned the family Court.

3. Mr. Agarwal relies on view taken by learned single Judge in the High Court of Delhi on judgment dated 7th July, 2021 in, inter alia, C.R.P 1/2021 ( Satprakash Meena v. Alka Meena ). He submits, the question answered by the judgment was that the civil proceeding initiated by the parties belonging to a Scheduled Tribe was maintainable inspite of the bar under section 2(2) in the Act of 1955.

4. On merits Mr. Agarwal submits, his client wants declaration for dissolution of the marriage on ground of cruelty. He relies on judgment dated 12th September, 2019 made by the Additional Sessions Judge in Criminal Appeal no.28 of 2017, being his client’s appeal against judgment of conviction passed by the Judicial Magistrate First Class in G.R. Case no.571 of 2012. He submits, the judgment was tendered as exhibit-2 in the family Court. It would appear from said judgment, even parents-in-law of his client had no complaint against him but respondent-wife had withdrawn herself from his society, lodged false complaint to initiate criminal case and get conviction, set aside in appeal.

5. On query from Court he submits, custom in the Scheduled Tribe, to which his client and respondent-wife belongs is that the village elders deliberate over marital disputes. There was such a panchayat and decision made for respondent-wife to rejoin his client’s society but she deliberately stayed away. In the circumstances, there should be declaration for dissolution of the marriage.

6. Mr. Pradhan, learned advocate appears on behalf of respondent-wife and submits, on the contrary it is appellant-husband who physically attacked his client because she came to know about his illicit affair with his brother’s wife. He tried to kill her. She escaped to her parental home and accordingly lodged complaint, pursuant to which there was criminal case and conviction. On query from Court he submits, his client has not taken any step to prefer appeal against said judgment dated 12th September, 2019 passed by the Additional Sessions Judge, to this Court. Without prejudice he submits, the civil proceeding stood barred under section 2(2). Inspite of earlier civil proceeding dismissed by reason of the bar, appellant-husband again filed the civil proceeding in abuse of the process. There should be no interference in appeal.

7. On perusal of impugned judgement it appears, there was no adjudication on merits. We repro