Tripura High Court: A Division Bench of S. Talapatra and S.G. Chattopadhyay, JJ., held that Section 2(2) of the Hindu Marriage Act has the imminent effect of the statutory exclusion that the person belonging to any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution will in the matter of marriage, continue to be governed by their customary laws, which are akin to the personal law and not any provision of the Hindu Marriage Act.
Background
Present appeal arose from the decision delivered in Tapash Debbarama v. Rupa Debbarama, dated 23-05-2018, Suit No. 12 of 2016.
Decree of Divorce
In view of the said decision, the decree of divorce on the ground of cruelty and desertion had been issued.
Criminal Action | Bigamy
Appellant (the wife) launched criminal action against the respondent (husband) under Section 494 and 498A of the Penal Code, 1860 and the respondent was arrested on the basis of an allegation of bigamy for marrying a Nepali Girl while his marriage with the appellant was subsisting.
Animus and Hostile
Further from the said decision, it has been noted that the parties lived separately for 2 years as their relation turned animus and hostile.
In view of the above-said decision, Additional District Judge granted a decree of divorce to the respondent on the ground of desertion.
Respondent’s case
Respondent was serving under Indian Armed Forces and was posted at Punjab. The appellant during that time started creating tantrum on insignificant issues. Appellant used to abuse her mother-in-law by obnoxious slang. At one point in time appellant had refused to accompany the respondent to his place of posting.
Appellant started living in her native village as she did not want to live at the respondent’s place of posting and in a few months, she gave birth to a male child.
Due to the criminal action by the wife, the respondent was suffering from serious depression and social ignominy.
Further, appellant lived continuously for 4 years being alienated from the matrimonial relation. She had frustrated all efforts of reconciliation as taken by the respondents. Having no other alternative, the respondent filed the petition seeking divorce on the dissolution of their marriage.
It may also be noted that the respondent declared himself as “Hindu” in the affidavit.
On the grounds of cruelty and desertion, a decree of divorce was granted, coupled with the order of maintenance allowance for the couple and her son.
Contentions
P.K. Ghosh, Counsel appearing for the appellant challenged the finding on maintainability of the suit and the finding on cruelty and desertion. He submitted that the suit is barred in view of Section 2(2) of the Hindu Marriage Act, 1955.
Further, he added to his submissions that, both the appellant and the respondent are admittedly the member of the scheduled tribe (Tripuri Community) within the meaning of Article 366, clause 25 of the Constitution of India and as such the suit under Hindu Marriage Act, 1955 cannot be maintained for purpose of dissolution of marriage by a decree of divorce on the postulates, provided by Sections 13(1)(a) and 13(1)(b) of the Hindu Marriage Act.
Analysis
High Court sought assistance from the following eminent lawyers of the Court:
Advocate General of Tripura, A.K. Bhowmik
S. Lodh, Counsel
M. Debbarma, Additional GA
A Pal, Counsel
Two questions are relevant to the issue of the maintainability of the suit in the perspective of the present case:
(1) Whether the marriage was solemnized between the members of Scheduled Tribes notified under Article 342 of the Constitution of India and within the meaning of clause 25 of Article 366 and as their marriage was solemnized as per Hindu rites and customs, can their marriage be dissolved under the provisions of Hindu Marriage Act, 1955?
(2) Whether the adoption of Hindu customs and rites at the time of marriage by the intending persons to get married belonging to the Scheduled Tribe to get married can be treated as the conversion?
Section 2(2) of the Hindu Marriage Act, 1955 clearly excludes “the members of any Scheduled Tribe within the meaning of clause 25 of Article 366 of the Constitution unless Central Government by the notification otherwise directs.
Section 2(3) of the Hindu Marriage Act has provided that the expression “Hindu” in any portion of the said act be contrued as if it included a person who though not a Hindu by religion, is nevertheless a person whom this act applies by virtue of the provision contained under Section 3 of the Hindu Marriage Act.
Court notes that Section 2(2) of the Act has the imminent effect of the statutory exclusion that the person belonging to such notified tribe will in the matter of marriage, continue to be governed by their customary laws, which are akin to the personal law and not any provision of the said Act unless the Centre directs so.
Why is the suit not maintainable?
Tripuri community with all its derivatives have been notified way back in 1950 by the Constitution (Scheduled Tribes) Order 1950 and in view of Section 2 (2) of the Hindu Marriage Act, the said Act will have no application for purpose of dissolution of marriage, etc. even though the marriage of the parties were solemnized as per Hindu customs and rites, inasmuch as on the basis of ethnicity, the Scheduled Tribes, within the meaning of clause 25 of the Article 366 of the Constitution have been specially and specifically excluded unless the Central Government by notification may otherwise direct.
As such, the suit was not maintainable.
Further, the Court added that desertion has not been proved on the preponderance of probablities in as much as the appellant has clearly stated that she had the intention to restitute the marriage.
But the above finding will have no effect in the suit as the suit itself is not maintainable having barred by Section 2(2) of the Hindu Marriage Act, 1955.
Before parting with the order, Court requested Centre to look into Section 15 of the Special Marriage Act having due regard to the customs and usages relating to the marriage of the notified Scheduled Tribes otherwise if the marriage between two members of the notified Scheduled Tribe is celebrated following the customary laws and the same is not registered, then there will be no statutory provision for dissolution of the said marriage.
The statutory embargo has been generating ingenious means for coming under the statutory provision for having dissolution of marriage. This matter requires immediate consideration of the Central Government.
In view, the above appeal was allowed.[Rupa Debbarma v. Tapash Debbarma, 2020 SCC OnLine Tri 425, decided on 09-09-2020]
