The Tripura High Court has observed that marriage between persons who belong to Scheduled Tribes notified under Article 342 of the constitution of India cannot be dissolved by invoking provisions of the Hindu Marriage Act, 1956.
The bench comprising Justices S. Talapatra and SG Chattopadhyay observed that Section 15 of Special Marriage Act, 1954, provides a very complex structure for registration of marriage and requires consideration of the Government.
In this case, the District Court, allowing the suit filed under Hindu Marriage Act, by the husband, granted the decree of divorce on the ground of cruelty and desertion. In this case, the couple belonged to Tripuri community which is notified under Constitution (Scheduled Tribes) Order, 1950. In the appeal before the High Court, it was submitted on behalf of the appellant wife that sub-section 2 of Section 2 of the Hindu Marriage Act provides that notwithstanding anything contained in subsection (1), nothing contained in the said Act shall apply to the members of any Scheduled Tribe within the meaning of clause 25 of Article 366 of the Constitution, unless the Central Government, by notification in the Official Gazette, otherwise directs. So, the contention was that the suit for dissolution of marriage is not maintainable as no divorce can be granted on the basis of the suit filed under the provisions of the Hindu Marriage Act, 1955.
The issues raised before the High Court were as follows: 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 and (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?
Answering the first issue, the bench said that in view of section 2 (2) of the Hindu Marriage Act, the 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.
Conversion is a conscious abandonment of the customs of the community or the religion and adoption of the religion which someone intends to be converted to.
Regarding the other question, the bench observed that simply because the marriage has been performed following the Hindu customs and rites, it cannot be stated that parties intending marriage had been converted to Hinduism. It said:
" Conversion is a conscious abandonment of the customs of the community or the religion and adoption of the religion which someone intends to be converted to. None of the appellant and the respondent did not claim to have converted to Hinduism by abandoning their customs. Thus, there had been no conversion and by considering "conversion", the Hindu Marriage Act cannot be applied."
Customary divorces are problematic, as no records are created.
The court added that Section 15 of Special Marriage Act, 1954 provides a very complex structure for registration of marriage and in some occasions, the customs of the Scheduled Tribe come in conflict with that provision.
"Section 15 of the Special Marriage Act provides for registration of marriages celebrated in other forms. The Central government is requested by this court to look into that provision 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. Customary divorces are problematic, as no records are created. From the experience, it has come to the knowledge of this court that 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. A copy of this order be sent to the Secretary to the Ministry of Justice for examining the aspect as noted above."
Case name: Rupa Debbarma vs. Tapash Debbarma
Case no.: MAT.APP 06 of 2018
Coram: Justices S. Talapatra and SG Chattopadhyay
Counsel: Advocates P. K. Ghosh and S. Bhattacharjee