1. Divorce suit — Return of plaint on ground of lack of jurisdiction — Question of forum between customary and civil court. (Para 2 , 3 , 4 , 5 )
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2025 Supreme(Online)(Gau) 3146
GAUHATI HIGH COURT
Arun Dev Choudhury, J
Nyame Dabi – Appellant
Versus
Tongku Moyong – Respondent
CRP/37/2024
Advocates:
For the Appellants/Petitioners: Bedanta Kaushik, Noni Nobeng, Jobang Modi, P Bora, Orin Modi
For the Respondents: Niranjan Sarma, Vijay Jamoh
For the Appellants/Petitioners: Bedanta Kaushik, Noni Nobeng, Jobang Modi, P Bora, Orin Modi
For the Respondents: Niranjan Sarma, Vijay Jamoh
Indigenous tribals in Arunachal Pradesh have the liberty to choose between a customary Court and a regular Civil Court for civil disputes; furthermore, a District Judge cannot unilaterally declare a legally filed civil appeal infructuous to redirect parties toward customary forums.
Headnote:(A) Jurisdiction - Civil Disputes of Indigenous Tribals - Choice of Forum - Where both parties are indigenous tribals, they have the liberty to choose between approaching a customary Court or a regular Civil Court for the resolution of civil disputes. (Para 7, 9)
(B) Customary Law - Divorce and Restitution of Conjugal Rights - Absence of Codified Law - In the absence of codified personal law for specific communities, the parties are at liberty to seek relief from either the customary Court or the Civil Court. (Para 9)
(C) Judicial Overreach - Interlocutory Orders - A District Judge cannot declare a pending appeal before a Civil Judge (Senior Division) as infructuous or direct its transfer to a customary court when the appeal was legally preferred under the Arunachal Pradesh Civil Court Act. (Para 12)
Issues: Whether the petitioner had the liberty to choose between the customary Court and the regular Civil Court for a divorce petition and whether the District Judge could declare a pending civil appeal infructuous.
Legal Category Hierarchy
- family law
- practice and procedure
-
constitutional law
- tribal rights and customary law (Para 7)
Table of Contents
2. Petitioner argued for divorce in civil court; respondent sought rejection of plaint as suit was barred by customary law. (Para 2 , 3 , 4 )
3. Indigenous tribal parties have liberty to choose customary or civil court; District Judge lacks divorce jurisdiction for Adi community. (Para 7 , 9 )
4. In absence of codified personal law, indigenous tribals may choose customary or civil court; District Judge lacks divorce jurisdiction. (Para 7 , 9 )
5. Impugned order set aside; parties at liberty to approach appropriate forum; District Judge's direction on pending appeal set aside. (Para 11 , 12 )
6. What is the proper forum for divorce for indigenous tribals of Adi community in Arunachal Pradesh?
Parties have liberty to approach either the customary court under AFAR or the regular civil court under the Arunachal Pradesh Civil Court's Act. (Para 7 , 9 )
7. Does a District Judge have jurisdiction to entertain a divorce petition for Adi community members?
The District Judge lacks jurisdiction to entertain a divorce petition when parties follow customary practices and no codified personal law exists. (Para 9 )
8. Can a subordinate civil judge decide a pending appeal against a customary court order independently?
Yes, the Civil Judge (Senior Division) must decide the appeal on its own merit without being influenced by the District Judge's order. (Para 12 )
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
Date : 07.05.2025
Heard Mr. B. Kaushik, learned counsel for the petitioner and Mr. N. Sarma, learned counsel for the respondent.
2. The present petition is filed assailing the judgment and order dated 20.08.2024, passed by the learned District Judge, East Siang, Pasighat in I.A. No.06/2024 in Divorce Suit No.04/2024.
3. The brief facts leading to the filing of the present case is that Divorce Case No.04/2024 was filed by the petitioner against her husband, the respondent herein, for dissolution of marriage between them and permanent alimony of Rs.25,00,000/- (Rupees Twenty five lakhs only) with a further prayer for custody of their minor daughter until her majority and for interim maintenance of Rs.15,000/- only in addition to the alimony of Rs.20,000/- granted by the learned Chief Judicial Magistrate, Pasighat.
4. In the proceeding, the respondent husband filed an Interlocutory Application registered as I.A. No.06/2024 under Order VII Rule 11(d) read with Section 151 of the Code of Civil Procedure, 1908, with a prayer to reject the divorce petition No.04/2024, on the ground that the suit is barred by law.
5. The impugned order dated 20.08.2024 was passed in the aforesaid interlocutory application, whereby the suit was returned to the plaintiff to approach before the customary Court to address her grievances to ensure the object laid down under Section 50 C.P.C read with Section 18 of the Arunachal Pradesh Civil Court's Act .
6. Prior to that, the husband had approached the customary Court seeking restitution of conjugal right and as the same was granted in favour of the respondent husband, an appeal was filed before the Civil Court. The learned District Judge observed in the impugned order that the appeal filed by the wife is required to be tried by the customary Court. As regards the pendency of the appeal preferred by the petitioner wife against the decision of the customary Court in favour of the respondent husband pending before the learned Civil Judge (Senior Division), Pasighat, this Court observed that the said proceeding may be withdrawn and treated as infructuous upon the presentation of divorce suit by the present petitioner before the customary Court, giving the respondent husband to press his application for conjugal right before the customary Court.
7. It is correct that in terms of the determination made in the Registrar General of Gauahati High Court Vs. the Union of India & Ors., reported in 2013 (4) GLT 1109, so far relating to the civil disputes, if both parties are indigenous tribals, they have a liberty, either to approach a customary Court in terms of AFAR or to approach the regular Civil Court in terms of the Arunachal Pradesh Civil Court's Act .
8. Certain jurisdiction has been conferred i.e., the appellate as well as original upon the Civil Courts to take decision against the order passed by the customary Court.
9. This Court is of the considered opinion that when the petitioner and respondent admittedly from Adi community and they follow the customary practice and tradition and that, admittedly, there is no codified personal law seeking divorce or restitution of conjugal right in the backdrop of determination made by the Division Bench in the case of Registrar General (supra), the petitioner and the respondent shall be at liberty to approach the customary Court or Civil Court. The District Judge will have no such jurisdiction to entertain a divorce petition, therefore, when the District Judge admittedly lacks jurisdiction, the course of action open for the District Judge is to return the file to the plaintiff, giving her liberty to approach the appropriate forum as determined in the case of Registrar General (supra).
10. The learned counsels for both the parties also agrees that this course of action would be the best course of action as on date.
11. Accordingly, taking note of the aforesaid submissions as well as taking note of the legal proposi
