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2016 DIGILAW 67 (TRI)

Biprojit Debbarma v. Swapna Debbarma

2016-03-10

DEEPAK GUPTA, U.B.SAHA

body2016
JUDGMENT : Deepak Gupta, J. The short question which arises in this appeal is whether the petition filed by the appellant-husband for grant of divorce on the ground of cruelty under the Special Marriage Act, 1954, was maintainable or not. 2. The undisputed facts are that the appellant-husband and the respondent-wife are tribals belonging to the Scheduled Tribes. It is also not disputed that they got married in the month of May, 1999 as per customary law applicable to them. It is also not disputed that at the time when the marriage was solemnized, the husband was a Hindu and the wife was a Christian. It is also not disputed that this marriage was not solemnized as per the provisions of the Hindu Marriage Act nor was this marriage registered under the Special Marriage Act. The marriage was solemnized as per tribal customs. 3. The husband filed a petition for grant of divorce under Section 27 of the Special Marriage Act, claiming that his wife had subjected him to cruelty and the main ground was that the wife had made various false allegations of adultery against the husband. 4. The learned Family Court after going through the evidence, has come to the conclusion that the husband has failed to prove the allegations leveled against him. 5. The learned Family Court also went on to hold that the petition itself was not maintainable. It was rightly held by the learned Family Court that for a petition to be maintainable under the Special Marriage Act, it must be first established that the marriage has been either performed under the provisions of the Special Marriage Act or registered under the provisions of the Special Marriage Act. Admittedly, no marriage was solemnized in accordance with the provisions of Section 12 of the Special Marriage Act. 6. It is also not disputed that the marriage was not registered in terms of Section 15 of the Special Marriage Act. Therefore, we have no hesitation in upholding the finding of the learned Family Court that the petition for divorce under the Special Marriage Act itself was not maintainable. 7. It is stated by Sri. Bhowmik, learned counsel appearing for the appellant that the husband has also now converted to Christian. Therefore, we have no hesitation in upholding the finding of the learned Family Court that the petition for divorce under the Special Marriage Act itself was not maintainable. 7. It is stated by Sri. Bhowmik, learned counsel appearing for the appellant that the husband has also now converted to Christian. Prima facie, we are of the view that since the marriage has been performed according to the tribal customaries the divorce will also have to be obtained according to the tribal customaries. 8. We also make it clear that since the divorce petition itself was not maintainable before the Family Court, any findings given by the Family Court with regard to the allegations of cruelty shall not be binding and shall not operate as res judicata in any subsequent proceedings which may be initiated by the husband for grant of divorce either under tribal law or under any other law, as he may be advised. 9. Needless to say that in any proceeding which the husband may initiate, he can take all grounds available to him including the grounds which he has taken in this petition and any other grounds which may have arisen thereafter. The wife obviously shall have the right to contest such a case on all grounds available to her. The appeal is accordingly dismissed. Send down the LCRs.