The Family Court erred in dismissing divorce application based solely on Scheduled Tribe status; potential for adjudication under the Hindu Marriage Act must be determined.

JUDGMENT (ORAL)

1. Heard Mrs. Sujata Deb (Gupta), learned counsel for the appellanthusband and Mr. S. Rahman, learned counsel for the respondent-wife.

2. This appeal under Section 2 8 of the HINDU MARRIAGE ACT , 1955 read with Section 19(1) of the FAMILY COURTS ACT , 1984 seeks setting aside of the order dated 15.02.2022 passed by the learned Judge, Family Court, Kailashahar, Unakoti, Tripura in case No.T.S.(Divorce) 81 of 2021 by which the application for divorce through mutual consent under Section 13B of the HINDU MARRIAGE ACT , 1955 filed by the parties has been rejected, inter alia, holding as under:

"Both the petitioners namely, Sri Amrit Lal Chakma and Smt. Babita Chakma are present before the Court.

The instant petition has been filed u/s-13-B of the HINDU MARRIAGE ACT , 1955 jointly by Sri Amrit Lal Chakma, the husband-petitioner No.1 and Smt. Babita Chakma, wife-petitioner No.2 respectively, for dissolution of their marriage by way of decree of divorce on mutual consent.

The petitioners have submitted that they are Buddhist by religion and though they are tribal, their marriage was solemnized as per Section-8(1) of The HINDU MARRIAGE ACT , 1955 and therefore, the petition may be allowed.

Perused the petition and heard them, in person.

It appears that both the petitioners belongs to Chakma Community and admittedly they are tribal within the meaning of Clause 25 of Article 366 of the Constitution of India.

Now, let me examine whether the petition of the petitioners can be entertained in view of Section 2 (2) of the HINDU MARRIAGE ACT 1955.

Section 2 reads as follows....

2. Application of Act.

(1) This Act applies-

(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation. The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(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.

(3) The expression 'Hindu' in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. State Amendment Pondicherry: In section 2, insert the following sub-section: (2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry. [Vide Regn. 7 of 1963, sec. 2 and Sch. (w.e.f. 1-10-1963).]

There is no doubt that the parties are Buddhist by religion and they belong to 'Schedule Tribe' Community and being such, are very much within the purview of the Act. The marriage has been solemnized as per Section-8(1) of the HINDU MARRIAGE ACT , 1955 as have been stated by the parties. So, as per Section-2 of The HINDU MARRIAGE ACT it would appear that their petition is totally