Delhi High Court on Validity of the Tribal Customs and Relativism in Divorce

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Facts:

The parties are a married couple seeking a divorce, both of whom are Meena Community members who follow Hindu traditions with a minor child. According to the wife, the Meena community is covered by the exclusion under Section 2(2) of the HMA, so their divorce is not maintainable under HMA. The trial court dismissed the divorce petition under Section 13-1(a) of the HMA because of the exclusion in Section 2(2) of the HMA,1955. The trial court had not conducted the petition’s trial or evaluated the facts in the case, but had instead hastily rejected the petition because the HMA, 1955 provisions would not apply since the parties were members of the Meena community.

Issue:

Whether the parties should be controlled by the terms of the HMA in these circumstances, or should they be subjected to Meena tribal customs?

Arguments by the Petitioner:

By referring to the documents of Marriage Invitation, Complaint and FIR and charge sheets registered under Section 498 (a) IPC, Complaint under the Domestic Violence Act, Application under Section 125 CrPC , Transfer Petition filed before the Supreme Court and the affidavit filed by the respondent (wife), Mr Jha on behalf of the petitioner submitted that in numerous filings, the respondent admitted and stated that their marriage was performed and maintained according to Hindu rites and customs, which in turn provided that the divorce petition under the Hindu Marriage Act, 1955 provisions should be maintainable as the facts of the case were applicable under this Act’s provisions.

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With the help of certain precedent cases Omprakash v. LalitaMeena (2015), Yamanaji H. Jadhav v. Nirmala (2002), Subramani v. M. Chandralekha (2005), Mirza Raja PushpavathiVijayaramGajapathi Raj Manne Sultan Bahadur v. PushavathiVisweswarGajapathiraj (1954), Maneka Gandhi v. Indira Gandhi (1984), Krishna Veni v. UOI, 2021, it was proposed that the presentation and analysis of pieces of evidence to prove the respondent’s submission for the customary practises of the Meena tribe to be governing their marriage was very much essential and neglected by the trial court during the verdict. By relying on the Supreme Court judgment in Labishwar Manjhi v. Pran Manjhi case, it was proved that if members of tribes maintain Hindu customs and traditions, the Hindu Succession Act of 1956 would apply to their circumstances. Counsel argued before the Court that once a Scheduled Tribe follows the rituals and practises of a religion, they should be governed by the legislation that governs that religion. As demonstrated in this case, holding that the Scheduled Tribe of Meena is not regulated by the HMA, 1955 would cause tremendous issues for women, including the acknowledgement of bigamy and desertion. On the basis of the judgements in Ms. Jorden Diengdeh v. S.S. Chopra(1985), Nihoto Sema v. Kanili Kimi Limi (1986), Sekawat s/o Shaukat Tadvi v. Rehane Budhan Tadavi &Anr. (2016), Mr Jha pointed that the relevant personal law would apply to Scheduled Tribes who practise Christianity or Islam with the applicability of HMA for the Hinduism customs in the present case. As a result, the Petitioner argues that the impugned decree of November 28, 2020, is unsustainable.

Arguments by the Respondent:

Mr Gupta, Counsel for the Respondent, claimed that the Respondent had not filed a reply to the divorce petition because she claimed she had never been served in the case. Counsel stated that the Respondent applied Order VII Rule 10 CPC and Order VII Rule 11 CPC, contending, among other things, that because the Meena tribe is a Scheduled Tribe in Rajasthan, its right to constitutional protection would be denied if the provisions of the HMA, 1955 are held to be applicable, as has been held in Supreme Court decisions, even if Hindu customs were fomented.

He further submitted that it was unethical to take away the identity of their former tribes and customs for the cause of them following Hinduism which was stated as a way of living. Though Scheduled Tribes who are Christian and Muslim may be protected by their separate personal law, the Scheduled Tribe of Meena community would not be covered by the HMA, 1955 due to a particular exception within the Act. He presented that because of the presence of a child in this situation, its Scheduled Tribe status cannot be taken away. As a result, the Respondent argues that the impugned decision rejecting the divorce petition is not entitled to be overturned.

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With reliance on the judgements of precedent cases Dr Surajmani Stella Kujur v. Durga Charan Hansdah and Anr. (2001), Dr Bini B. v. Jayan P.R. (2015), Rajendra Kumar Singh Munda v. Smt. Mamta Devi (2015), Ramlal v. Prem Bai(2018), Rupa Debbarma v. Tapash Debbarma (2020), it was argued that the impugned decision rejecting the divorce petition is not entitled to be modified.

Court’s Analysis:

Due to the constant change in verdicts in the High Court judgements, the Court relied on two Supreme Court judgements for the analysis of this case. In the Labishwar Manjhi case, the Supreme Court determined that the parties were Hinduised because they followed Hindu customs based on specific behaviours, resulting in the inapplicability of parties’ exclusion under Section 2(2) of the HSA, 1956 and they would be regulated by the HSA’s provisions. It was further noted that the exclusions in Section 2(2) of the HMA and Section 2(2) of the HSA, 1956 are essentially the same. In Dr Surajmani Stella Kujur case, Supreme Court ruled that the Santhal Tribe’s claimed monogamy tradition has no legal standing and cannot prevent a second marriage from being solemnised. It is insufficient to rely just on habit. Section 494 IPC would not apply unless and until a second marriage is declared invalid.

Through the documents presented the Court concluded that the marriage was performed following “Hindu Riti Riwaz”, “Saptapadi” and in front of “Agni” – fire. 

Thus it was evident that the provisions of the Act would not apply to members of the Scheduled Tribal community unless the Scheduled Tribe is a notified tribe under Section 2(2) of the HMA,1955 and the parties have agreed that the aforementioned community is not a notified tribe.

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If the parties follow Hindu traditions and rites for marriage, this Court is inclined to adopt the Supreme Court’s decision in Labishwar Manjhi case with a feeling of need for a Uniform Civil Code under Article 44 was decided. 

Court’s Decision:

The appeal has been granted with a declaration that the contested verdict is unsustainable and must be overturned. The trial court is ordered to consider the petition on the merits under 13-1(a) of the HMA, 1955, and provide a judgement within six months.

Click here to see judgement

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