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IN THE HIGH COURT OF JHARKHAND AT RANCHI

First Appeal No. 124 of 2018

Baga Tirkey

..... … Appellant

Versus

1. Pinki Linda

2. Niraj Karmali

.…. … Respondents

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CORAM : HON’BLE MR. JUSTICE APARESH KUMAR SINGH

: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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Through:- Video Conferencing.

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For the Appellant

: Mr. Ashutosh Anand, Advocate.

For the Respondent No. 1 : M/s K.K. Singh & Sanjay Kumar, Advocates.

For the Respondent No. 2 : Mr. Alok Lal, Advocate.

Amicus Curiae

: Mr. Kumar Vaibhav

& Subhashis Rashil Soren, Advocates.

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17/ 08.04.2021

Heard learned counsel for the parties and learned Amicus Curiae.

2.

Learned Principal Judge, Family Court, Ranchi by the impugned

judgment dated 16.3.2018, has dismissed Original Suit No. 583 of 2017, on the

ground of maintainability.

3.

The suit was instituted under Section 7(1)(a) of the Family Courts

Act, 1984 read with Para-5.2 of the ‘Customary Laws of Munda and Oraons’ as

delineated in the book “The Customary Laws of the Munda and the Oraon” by

Dr. J. P. Gupta.

4.

The parties belonged to Oraon Tribal Community and their

marriage was performed on 27^th April, 2015 at Ranchi as per the customs of the

said community. On the ground of adultery, the appellant wanted divorce.

5.

Learned Family Court referred to the book “The Customary Laws

of the Munda and the Oraon” and held that there is no substantive codified law,

applicable to the parties like the Hindu Marriage Act, 1955, Special Marriage

Act, 1954 and Divorce Act, 1869. Section 2(2) of Hindu Marriage Act, 1955

makes the Act inapplicable to the members of any Schedule Tribe within the

meaning of Article-366 of the Constitution of India, unless notified by the

Central Government. Therefore, they were not governed by the Hindu Marriage

Act. Learned Family Court was of the view that since the petitioner/appellant is

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seeking divorce on the basis of the customs and usage applicable to the parties,

which can be exercised only by the Community Panchayat and not by a Court of

Law, the petition is not maintainable.

6.

During the pendency of this appeal considering the importance of

the issues, affecting the rights of the persons, belonging to Tribal Community,

Mr. Kumar Vaibhav along with Shubhashis Rasik Soren, learned Advocate were

appointed as Amicus Curiae to assist the Court. The Tribal Research Institute,

Government of Jharkhand, Ranchi, Director, Judicial Academy, Jharkhand and

the Vice-Chancellor, National University of Study and Research in Law

(NUSRL) were requested to provide necessary assistance in the matter to this

Court.

7.

Learned Amicus Curiae has submitted a report after interaction

with the Tribal Research Institute (TRI) and elderly persons of Oraon

Community, convened by the TRI. Some valuable inputs have also been

provided by the National university of Studies and Research in law. The Judicial

Academy, Jharkhand also submitted a report, prepared by the Research Scholars

containing the statutory framework of the Family Courts’ Act, 1984 and

decisions rendered by different courts on matter concerning matrimonial dispute

between the members of Schedule Tribe. Learned counsel for the parties have

also rendered assistance to the Court. Since the suit was dismissed on the ground

of maintainability, we are not entering into the merits of the case of the parties

except taking note of the foundational facts that they belong to the Oraon Tribal

Community and are governed by the Customary Laws.

8.

From the inputs provided by learned Amicus Curiae, it is evident

that the Oraon community is governed by the Customary Laws, there is a

hierarchy of Panchayats in the community such as ‘Padha Panchayat’, where the

parti