IMPORTANT POINT
The applicability of the Hindu Marriage Act to Scheduled Tribes requires proof of being 'Hinduised', and jurisdictional issues must be resolved through a full trial.

ORDER :

K. LAKSHMAN, J.

Heard Sri Parsa Anantha Nageswara Rao, learned counsel for the appellant and Sri A. Prabhakar Rao, learned counsel for the respondent.

2. Challenging the impugned order and decree dated 28.09.2012 in O.P.No.214 of 2010 passed by the learned Chairman, Motor Accidents Claims Tribunal-cum-III Additional District Judge, Warangal, appellant-husband preferred the present appeal. He has filed the aforesaid O.P under Section 12 (1) (ia) (ib) and (1A) of the Hindu Marriage Act against the respondent-wife seeking dissolution of marriage on the ground of cruelty as well as desertion.

3. During the pendency of the said O.P, respondent-wife had filed a memo stating that the parties belong to Tribal Community (Lambadies), but the petition has been filed by the petitioner under the Hindu Marriage Act. Therefore, the learned Family Court has no jurisdiction to try this case, as the parties are not governed by the Hindu Marriage Act. Therefore, according to respondent, the aforesaid O.P.No.214 of 2010 is not maintainable. She has also referred Section 2(2) of Hindu Marriage Act and also relying on decision of the Hon’ble Supreme Court reported in AIR 2001 SCC 938. Relying on the said principle and also considering the said memo, vide impugned order dated 28.09.2012, learned Family Court dismissed the said O.P. Challenging the said order, appellant-husband preferred the present appeal.

4. There is no dispute that the aforesaid O.P was posted for inquiry. At that stage, the respondent had filed a memo stating that the parties belong to Tribal Community (Lambadies). Therefore, the said O.P is not maintainable and they are not governed by provisions of Hindu Marriage Act. Relying on the said memo and referring to the principle laid down by Hon’ble Apex Court in AIR 2001 SCC 938, learned Family Court dismissed the said O.P.

5. Sri Parsa Anantha Nageswara Rao, learned counsel for the appellant would contend that learned Family Court cannot decide O.P basing on the memo filed by the respondent. Learned Family Court has to decide the said issue along with other issues in main O.P itself after conducting full-fledged trial. Thus, learned Family Court erred in dismissing the O.P without conducting any inquiry.

6. Whereas, Sri A. Prabhakar Rao, learned counsel appearing for the respondent fairly submits that the learned Family Court has to decide the said aspect during trial after conducting full-fledged trial.

7. In the light of the aforesaid submissions, it is relevant to extract Section 2(2) of the Hindu Marriage Act, 1955:-

“Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribes within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.”

8. In Labishwar Manjhi vs. Pran Manjhi And Ors, (2000) 8 SCC 587, the Apex Court introduced the concept of “Hinduised” individuals. It was held if the members of Scheduled Tribe follows customary practices and traditions of Hinduism only, then they will be guided once they establish they are “Hinduised”. Relevant portion is extracted below:-

“The finding is that they are following the customs of the Hindus and not of the Santhal’s. In view of such a clear finding, it is not possible to hold that sub-section 2 of Section 2 of Hindu Succession Act excludes the present parties from the application of the said Act. Sub-section 2 only excludes members of any Scheduled Tribe admittedly as per finding recorded in the present case though the parties originally belong to the Santhal Scheduled Tribe they are Hinduised and they are following the Hindu traditions. Hence, we have no hesitation to hold that Sub-section 2 will not apply to exclude the parties from application of Hindu Succession Act. The High Court fell into error in recording a finding to the contrary.”

9. In Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah, AIR 2001 S