Can tribal man seek divorce under Hindu law? Chhattisgarh High Court overturns order blocking couple’s mutual plea

What was the case?

• The couple’s marriage was solemnised in 2009.
• Their marriage was admittedly performed according to Hindu customs and ceremonies, including the performance of saptapadi.
• Subsequently, they started living separately.
• Their application for dissolution of marriage under the Hindu Marriage Act, 1955 for divorce on the basis of mutual consent was rejected by the family court.
• Feeling aggrieved, the couple approached the high court.
• The counsel appearing on behalf of the wife and husband submitted that once the parties stated they follow Hindu customs and traditions and their marriage was solemnised according to Hindu rites, the family court could not have rejected the application.

Court’s observations

• It is well-established that marriage under Hindu law is not merely a civil contract but a sacred sacrament, a spiritual, moral, and social union between husband and wife.
• As such, it is quite apparent that marriage, within the framework of Scheduled Tribes, occupies a distinct and autonomous socio-legal space that predates the codification of personal laws such as the Hindu Marriage Act.
• The jurisprudence surrounding tribal marriage recognises that tribal communities constitute a distinct social and cultural order, governed by their own customary laws, traditions, and usages, which are preserved under Article 13(3)(a) and protected by Article 342 of the Constitution of India.
• Section 2(2) (nothing contained in this Act shall apply to the members of any Scheduled Tribe) of the Hindu Marriage Act is a measure of protection and not a measure of exclusion. In a case where the Act is sought to be applied to a member of a notified tribe, it would be open to such a member to object to any such proceeding on the ground that he/she is a member of a notified Scheduled Tribe and as such, he/she is entitled to the benefit of Section 2(2) of the Act.
• However, when a member of such a notified scheduled tribe voluntarily submits himself or herself to the jurisdiction of the court under the Act, on the ground that they are Hindus and follow Hindu customs and practices, such members cannot be prohibited or barred, at the threshold, from invoking such a provision.

‘Can’t be excluded’

• As such, when members of a tribe voluntarily choose to follow Hindu customs, traditions and rites, they cannot be kept out of the purview of the provisions of the Act.
• In view of the aforesaid legal position, it is quite vivid that the husband is a tribal Hindu, while the wife is a non-tribal Hindu.
• Their marriage was solemnised as per Hindu customs, rites and traditions, and the ceremony of saptapadi (seven steps) was also performed, which is apparent from the statements before the court as well as from the pleadings of the parties.
• The wife being non-tribal and husband being tribal both have performed their marriage according to the Hindu rites and rituals, including saptapadi, and they have become “Hinduised” and they had also deposed before the family court in affirmation of this fact.
• They cannot be excluded from the purview of the Act and they cannot be relegated to the customary courts, as the object of Section 2(2) of the Act is to protect their own (Scheduled Tribe’s) customary laws, traditions, and usages, which are preserved under Article 13(3)(a) read with Article 342.
• Since the two appellants are following the Hindu traditions and they had performed marriage in accordance with Section 7 (Hindu marriage ceremonies) of the Act of 1955 by performance of the ceremony of saptapadi and they have become Hinduised, their application ought not to have been rejected by the family court.

Court’s directions

• The appeal is allowed and the impugned judgment passed by the family court is set aside.
• The matter is remitted to the family court to decide the application for divorce by mutual consent under the Act on its own merits, expeditiously, in accordance with the law.