Members of Scheduled Tribes can seek remedies under the Hindu Marriage Act if they identify as Hinduised, despite the Act's Section 2(2) restrictions.

ORDER:

The petitioner belongs to a Schedule Tribe called Bagatha, which is a tribe notified under Article 342 of the Constitution of India. She had married the 4th respondent, who is not a member of a Schedule Tribe and is a Hindu, on 15.05.2010, according to Hindu customs and rites. This marriage was also registered before the Registrar for Marriages, Visakhapatnam, on 02.02.2012 under the Hindu Marriage Act , 1955 (for short, “the Act”). Later, disputes arose between the petitioner and her husband. When the petitioner sought to file a petition for dissolution of the marriage under the Act of 1955, she was advised that Section 2(2) of the Act precluded her from invoking the jurisdiction of the Family Court under the said Act. She was also informed that the Hon’ble Supreme Court in the case of Surajmani Stella Kujur vs. Durga Charan Hansdah, AIR 2001 SC 939 had held that members of the schedule tribes notified under Article 342 of the Constitution would not be entitled to approach the Court under the Act of 1955. She was also furnished with a Judgment dated 27.09.2018 of the Family Court-cum-V Additional District Judge, Visakhapatnam, in O.P.No.1738 of 2015, wherein a petition filed by a member of a schedule tribe against her husband who is also a member of schedule tribe had been rejected on the ground of Section 2(2) of the Act.

2. In the light of the aforesaid Judgments and legal advice given to her, the petitioner has now approached this Court for a direction to respondent Nos.1 to 3 to issue a notification in the official gazette directing the members of any Schedule Tribe to prefer applications before the specified Court of law having jurisdiction to dissolve such marriages including her marriage. She also sought a direction to the Judge, Family Court, Visakhapatnam, to permit her to file a petition under Section 7(1)(A) of the Family Courts Act to dissolve the marriage performed between her and the 4th respondent. Any notification, of the nature sought by the Petitioner, would be in the nature of delegated legislation and the same cannot be directed to be issued as that would fall foul of the principle of separation of powers. As such the first prayer cannot be granted. However, there is merit in the second contention in the prayer.

3. The petitioner before the Hon’ble Supreme Court in Surajmani Stella Kujur’s case (cited 1 supra) sought to file a complaint against her husband under Section 494 of the Indian Penal Code, on the ground that her husband had contracted a second marriage during the subsistence of the marriage between her and her husband. The contention of the petitioner therein was that their tribal customs mandate monogamy as a rule and as such, solemnisation of a second marriage by the husband of the petitioner would make the second marriage void and the husband of the petitioner would be liable for prosecution. The Hon’ble Supreme Court, after going into the pleadings, evidence and proofs placed before the Court, had held that since none of the pleadings or evidence made out such an alleged custom and in view of the fact that both the petitioner and her husband are members of a tribe notified under Section 343 of the Constitution, no case would be made out against the husband of the petitioner therein. However, the Hon’ble Supreme Court recorded that the petitioner was at liberty to get her right established by way of civil proceedings in a competent Court of jurisdiction. The Hon’ble Supreme Court, while considering the aforesaid issue, had recorded the concession given by the petitioner that the parties to the petition are two Tribals, who otherwise profess Hinduism, but their marri