In a significant judgment, the Jharkhand High Court has held that Family Courts cannot turn away parties seeking divorce under their customary laws.
A Division Bench comprising of Justices Aparesh Kumar Singh and Anubha Rawat Choudhary has held,
"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 emphasized that the Family Courts Act, 1984 is a secular law applying to all religions.
Section 7 thereof relates to Jurisdiction of Family Courts and sub-section (1)(A) of the provision confers on them "all the jurisdiction" hitherto exercised by any District Court in suits or proceedings relating marriage, divorce, etc.
Thus, it is held that there is no precedent which bars members of the Scheduled Tribe to approach the Family Court by filing any suit or proceedings relating to matters mentioned in Section 7 of the Family Courts Act.
The order further states,
"If at all, such matter is filed, seeking adjudication under the law, applicable to them, i.e. Customary Laws, they cannot resort to the provisions of Hindu Marriage Act, 1955, if the parties are not governed by the Hindu Marriage Act, 1955."
The Court was hearing an appeal against an order of the Family Court, Ranchi dismissing a suit for Divorce filed by the Appellant-husband, 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 there is no substantive codified law, applicable to the parties.
It further 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 the meaning of Article 366 of the Constitution of India, unless notified by the Central Government.
Thus, it was held that since the Appellant is seeking divorce on the basis of the customs and usage applicable to the parties, the petition is not maintainable and the same may be adjudicated only by the Community Panchayat, and not by a Court of Law.
Amicus Curiae Kumar Vaibhav and Shubhashis Rasik Soren submitted that even customs and usage cannot impede rights of a citizen to approach the Court of Law, i.e. a family court seeking divorce.
It was contended that if at all a custom forbids access to Family Court and relegates a person seeking divorce to Panchayat/Community court, the same will be violative of right to access to justice and any sanctification of customs, resulting in violation of fundamental rights ought not be resorted to.
At the outset, the Division Bench observed that ouster of jurisdiction should not be readily inferred [Bhanwar Lal & Anr. v. Rajasthan Board of Muslim Wakf & Ors., (2014) 16 SCC 51].
It observed that the use of the words 'all the jurisdiction' in Section 7 of the Family Courts Act makes the legislative intent clear that all the enumerate matters in the provision would be the exclusive domain of the Family Courts.
Reliance was placed on the Supreme Court's observations in KA Abdul Jaleel v. TA Shahida, (2003) 4 SCC 166, that jurisdiction of a court created especially for resolution of disputes of certain kinds should be construed liberally.
"FCA created a forum for adjudication of matrimonial matters of the nature enumerated in the explanation to Section 7 of the FCA, which forum can be resorted to by one and all, be it a member of scheduled tribe or a person of any religion," the Division Bench ruled.
Jurisdictional Facts & Adjudicatory Facts
The Division Bench went ahead to discuss the concept of 'Jurisdictional Facts' and 'Adjudicatory Facts'.
The facts or facts upon which the jurisdiction of a Court, a Tribunal or an Authority depends can be said to be 'Jurisdictional Fact'. If the 'Jurisdictional Fact' exists, a Court, Tribunal or Authority has jurisdiction to decide other issues.
An 'Adjudicatory Fact' is a 'fact in issue' and can be determined by a Court, Tribunal or Authority on merits, on the basis of the evidence, adduced by the parties. Such facts may be decided based upon the pleadings of the parties.
In the present case, the Bench explained, the underlying jurisdictional fact as pleaded before the Family Court, is that both the parties belonged to Oraon Community and their marriage was solemnized as per the Customary Law of Oraon.
"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 Bench observed.
"Family Court would not have straightaway dismissed the suit as not maintainable holding that there is no codified substantive law, governing the parties. In such a case, where parties claimed to be governed by Customary Law, the learned Family Court ought to have framed an issue to that effect. Once it is found that the parties are governed by the Customary Law, the parties are required to plead and prove the customs, by which, they are governed in matters concerning, marriage and divorce."
Case Title: Baga Tirkey v. Pinki Linda & Anr.