Jharkhand_High_Court Law Insider

Jharkhand HC: Family Courts cannot turn away parties seeking divorce under Customary Laws

Lekha G

A Division Bench comprising of Justices Aparesh Kumar Singh and Anubha Rawat Choudhary in a significant judgment held that Family Courts cannot turn away parties seeking divorce under their Customary Laws.

“The Family Court fell in error in holding that the suit is not maintainable in absence of codified substantive law as are applicable to the parties…whether the parties are able to plead and prove the custom governing the matters of divorce between them for seeking relief was an issue to be decided on merits after considering the pleadings and evidence on record”, the Court held.

The Court was hearing an appeal against an order of the Family Court, Ranchi dismissing a suit for divorce filed by the appellant, a member of the Oraon Community, on the ground of adultery as non-maintainable.

The Family Court referred to the book, ‘The Customary Laws of the Munda and the Oraon‘ and held that since the Appellant is seeking divorce on basis of customs and usage applicable to parties and not on basis of a codified law, the petition is not maintainable. The matter may be adjudicated only by the Community Panchayat.

Further, it also took note of Section 2(2) of the Hindu Marriage Act,1955 which makes the Act inapplicable to the members of any Schedule Tribe within meaning of Article 366 of the Constitution of India, unless notified by the Central Government.

Amicus Curiae Kumar Vaibhav and Shubhashis Rasik Soren put forward that even customs and usage cannot impede rights of a citizen to approach the Family Court seeking divorce.

Reliance was also placed on the Supreme Court’s observations in KA Abdul Jaleel vs TA Shahida, that jurisdiction of a Court created especially for resolution of disputes of certain kinds should be construed liberally.

 The Division Bench ruled that, “The Family Court Act, being a secular law, applying to all religions and communities and conferred with the power to adjudicate on matters mentioned in Clauses (a) to (g) of the Explanation to Section 7 of the FCA, could not have held that the suit is not maintainable in the absence of a codified Customary Law of the parties”.

The Court further added that when parties claim to be governed by Customary Law, the Court must frame an issue to that effect and once proved, the parties are required to plead and prove the customs that govern them in matters concerning marriage and divorce.

Thus, it was held that there is no precedent that bars members of the Scheduled Tribe to approach Family Court on matters mentioned under Section 7 of the Family Court Act.