Chhattisgarh High Court: ‘"Hinduised" Scheduled Tribe Couples Can Seek Mutual Consent Divorce U/S 13B Hindu Marriage Act

The Court held that if parties voluntarily submit to the jurisdiction of the Family Court and affirm their adherence to Hindu traditions, they are entitled to seek a divorce by mutual consent under Section 13B, as they have effectively moved out of the ambit of tribal custom and into the fold of the HMA.

​The Division Bench of Justice Sanjay K. Agrawal and Justice Arvind Kumar Verma observed, “Similarly, Section 2(2) of the Act of 1955 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 {see Chittapuli (supra)}. 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 he/she are Hindus who are Hinduised and follow Hindu customs and practices, such a member cannot be prohibited or barred, at the threshold, from invoking such a provision. 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 of 1955.”

Advocate Ishan Verma appeared for the Appellants, while Senior Advocate Manoj Paranjpe appeared as the Amicus Curiae.

The Appellants, i.e. husband and the wife, filed a joint appeal under Section 19(1) of the Family Courts Act, 1984, assailing the judgment passed by the Family Court by which the Family Court rejected the application seeking dissolution of marriage filed under Section 13B of the Hindu Marriage Act, 1955 (‘the Act of 1955’) seeking divorce on the basis of mutual consent.

The wife belonged to a Scheduled Caste, and the husband belonged to a Scheduled Tribe. Despite this clear testimony and the mutual desire for divorce, the Family Court by its impugned judgment rejected the application holding that by virtue of Section 2(2) of the Act of 1955, the said Act is not applicable to the members of Scheduled Tribe and therefore the application under Section 13B seeking divorce on the basis of mutual consent cannot be entertained, which is sought to be challenged by way of this appeal.

The Appellants submitted that once the parties stated that they are following the Hindu customs and traditions and their marriage was solemnized according to the Hindu rites and rituals including performance of saptpadi, therefore, they have become Hinduised, it was not open to the Family Court to suo motu reject the application holding that by virtue of Section 2(2) of the Act of 1955, the provision relating to mutual divorce as contained in Section 13B of the Act of 1955 would not be applicable and as such, the impugned judgment & decree deserve to be set aside.

The main question for the consideration of the Court was whether the Family Court was justified in holding that Section 13B of the Act of 1955 would not be applicable to the parties, as the Husband belonged to Scheduled Tribe, and thereby the application of the aforesaid provision would be excluded by virtue of the provision contained in Section 2(2) of the Act of 1955.

The Court said that a focused reading of Section 2(2) of the Act of 1955 would show the non-applicability of the Act to the members of any Scheduled Tribe unless the Central Government, by notification in the official Gazette, otherwise directs.

“A focused reading of Section 2(2) of the Act of 1955 would show the non-applicability of the Act to the members of any Scheduled Tribe unless the Central Government, by notification in the official Gazette, otherwise directs. Article 366 of the Constitution defines the expression and meaning of the word Scheduled Tribe which says, “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed Article 342 to be Scheduled Tribes for the purpose of the Constitution which is to be further read with the Constitution (Scheduled Tribes) Order, 1950”, the Court said.

The Court said that the marriage was solemnized as per the Hindu customs, rites and traditions, and the ceremony of saptpadi was also performed, which is apparent from the statements before the Court as well as from the pleadings of the parties. As stated above, appellant No.2/husband is a tribal and appellant No.1/wife is a non-tribal, particularly, appellant No.2/husband has voluntarily chosen to follow Hindu customs, traditions and rites. It was observed that they cannot be denied the provisions of the Act of 1955.

The Court observed, “Coming finally to the facts of the case, it is quite vivid that as per pleadings of the parties, appellant No.1/wife being non-tribal and appellant No.2/husband being tribal both have performed their marriage according to the Hindu rites and rituals including the performance of saptpadi and they have become Hinduised out and out and they had also deposed before the Family Court in affirmation of this fact. Once they have become Hinduised and they are following the Hindu traditions, the principle of law laid down by their Lordships of the Supreme Court in Labishwar Manjhi (supra) would apply in full force wherein their Lordships have clearly held that though the parties originally belong to the Santhal Scheduled Tribes, they are Hinduised and they are following the Hindu traditions, sub-section (2) of Section 2 of the Act of 1955 will not apply to exclude the parties from application of the Hindu Succession Act.”

The Court concluded that since the two appellants herein are following the Hindu traditions and they had performed marriage in accordance with Section 7 of the Act of 1955 by performance of the ceremony of saptpadi and they have become Hinduised, their application ought not to have been rejected by the learned Family Court applying Section 2(2) of the Act of 1955.

Accordingly, the Court ordered that the application under Section 13B of the Act of 1955 was very well maintainable before the Family Court and ought to have been considered on the merits.

Hence, the appeal was allowed, and the Court set aside the impugned judgment.

Cause Title: XXXX [Neutral Citation: 2026:CGHC:10933-DB]

Appearances:

Appellants: Advocate Ishan Verma

Amicus Curiae: Senior Advocate Manoj Paranjape

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