JUDGMENT 1. This appeal arises from the judgment dated 23.05.2018 delivered in Title Suit No.12 of 2016 titled as Tapash Debbarma vs. Rupa Debbarma alias Rupali by the Additional District Judge Unakoti Judicial District, Kamalpur. Pursuant to the said judgment, the decree of divorce on the ground of cruelty and desertion has been issued. It has been observed in the said judgment that the undisputed fact is that the appellant herein [the wife] launched a criminal action against the respondent [the husband] under section 494 and 498A of the IPC and the respondent was arrested on the basis of allegation of bigamy for marrying a Nepali girl while his marriage with the appellant is subsisting. On the same ground, the allegation of cruelty was brought by the appellant. It has been further observed that on the day of institution of the petition seeking divorce i.e. 10.08.2016, the parties lived separately for two years as their relation turned animus and hostile. Thus, the Addl. District Judge has observed that the respondent is entitled to get the decree of divorce on the ground of desertion as well. 2. The allegations as brought by the respondent, of cruelty and desertion have been squarely contested and disputed by the appellant by filing the written statement. The respondent has stated in his petition [the plaint] that the marriage with the appellant was solemnized on 27.11.2009 "as per Hindu Sashtras and custom and after observing all formalities of customs of the tribal society". They consummated their marriage at the respondent's official residence at Punjab for about six months. The respondent was posted at Punjab as he was serving under Indian Armed Forces. During the time, the appellant started creating tantrum on insignificant issues. Even she had started to misbehave with his aged mother without any cogent reason whenever she lived at their native village called Kachimcherra under Dhalai District. She used to abuse her by obnoxious slang. Even his married sister, Sangita Debbarma was made target of her abuse. From the very beginning the appellant used to threaten the respondent to take legal action so that the respondent was dismissed from his service. The respondent took all efforts for making her life comfortable. The appellant at one point of time refused to accompany the respondent to his place of posting. 3. From the very beginning the appellant used to threaten the respondent to take legal action so that the respondent was dismissed from his service. The respondent took all efforts for making her life comfortable. The appellant at one point of time refused to accompany the respondent to his place of posting. 3. In the month of April 2012, without consent of the respondent, the appellant left her matrimonial home by ignoring the respondent's request and started living at native village as she was not willing to live at the place of the respondent's posting. On 17.12.2012, the appellant gave birth of a male child. On having that news from his father-in-law Tari kumar Debbamra, he came down to Kamalpur and provided all expenses for hospitalization, treatment and care through his father-in-law. The appellant was however, grudgingly launched a criminal action against the respondent being Ambassa PS Case No.32 of 2013 under sections 498A/494 of the IPC on false allegations. However, the police investigated the complaint and filed chargsheet against the appellant. The respondent was made to go through excruciating experience of his life by facing that criminal action launched by the appellant. The respondent suffered serious depression and social ignominy. The appellant lived continuously for 4 years being alienated from the matrimonial relation. She had frustrated all efforts of reconciliation as taken by the respondents. Having no other alternative, the respondent filed the petition seeking divorce on dissolution of their marriage. It may be noted that in the affidavit sworn on 09.08.2016 appended to the plaint, the respondent had declared him as "Hindu". 4. By filing the written statement, the appellant has denied the basic pleadings of the respondent. She has denied that she had ever treated the respondent with cruelty or there was any congenial atmosphere at the matrimonial home to live their alone. In para 19 of the written statement the appellant has asserted inter alia as under: (a) Mother and sister of the respondent herein are bad cultured ladies and of worse temper. They are quarrelsome and repressive in nature. The appellant has further stated that there was unlawful demand of dowry and as the demand was not fulfilled, the appellant was subjected to "physical torture and mental torture" (b) The appellant has admitted that respondent took her with new born baby to his residence at Kulai. They are quarrelsome and repressive in nature. The appellant has further stated that there was unlawful demand of dowry and as the demand was not fulfilled, the appellant was subjected to "physical torture and mental torture" (b) The appellant has admitted that respondent took her with new born baby to his residence at Kulai. "The mother in law of the respondent was surprisingly not even ready to see her grandson's face." After birth of their son, the respondent was posted at Shilling for sometimes. The respondent was in touch with the appellant. But at one point of time, the respondent stopped any sort of communication with the appellant. The respondent got married to one Nepali girl from Shillong. To ascertain the fact, when the appellant reached Shillong, she found a Nepali woman in the respondent's quarter. The said woman told her that she was the respondent's wife. Under the said circumstances, the criminal action was set in. Based on the rival pleadings, the following issues were framed for purpose of adjudication: ISSUES (i) Is the suit maintainable in its present form? (ii) Whether the respondent wife has deserted the petitioner husband without any reason? (iii) Whether the respondent wife Smt. Rupa Debbarma acted with cruelty to the husband petitioner, Tapas Debbarma by any conduct or means? (iv) Whether the petitioner is entitled to get any decree by dissolution of marriage existing between them as prayed for? (v) To what other relief/reliefs if any the parties are entitled? 5. It is to be noted here that on scrutiny of the written statement filed by the appellant, this court does not find any challenge against the jurisdiction of the court in entertaining the petition for dissolution of marriage under section 13 (1)(a) and 13(1)(b) of the Hindu Marriage Act, 1955. However, but one issue has not been prominently framed whether the suit is maintainable in its present form. 6. The parties led their respective evidence. The respondent herein adduced two witnesses including himself (PW-1) whereas the appellant adduced another set of four witnesses in support of her pleadings. For obvious reasons, no documentary evidence has been adduced by either of the parties. For purpose of reference, a short survey of the evidence is required to be made. 7. PW-1, Tapash Debbarma( the respondent herein) has stated that his marriage with appellant was solemnized on 27.11.2009 as per Hindu Shastra and Custom. For obvious reasons, no documentary evidence has been adduced by either of the parties. For purpose of reference, a short survey of the evidence is required to be made. 7. PW-1, Tapash Debbarma( the respondent herein) has stated that his marriage with appellant was solemnized on 27.11.2009 as per Hindu Shastra and Custom. Thereafter they lived together as husband and wife in Punjab and his native village at Kulai. Within two months from their marriage, the appellant appeared to be excessively touchy. She started misbehaving with his mother without any cogent reason. Even, she used to hurl slang while abusing his mother and married sister, Sangita Debbarma. That apart, the appellant used to threaten him to send to jail and after that she would enjoy her life. The respondent tried to provide all sort of amenities to the appellant so that she can live comfortably. One day in the month of April, 2012, the appellant left the matrimonial home and started living at her parental home. The respondents took initiative to bring her back but she was obstinate not to come. On 17.12.2012 the appellant gave birth of a male child namely Alex Debbarma. The respondent immediately came from his place of posting and met the appellant in the hospital and defrayed all medical and care-service expenses. That apart, he performed all rituals to be observed for the birth of the male child in the parental home of the appellant. During that time the appellant filed one false complaint in Ambassa police station accusing the respondent of treating her with cruelty. Even the appellant accused the respondent of marrying another woman. Based on the said complaint, Ambassa Police Station case No. 32 of 2013 was registered. The petitioner was arrested and he was detained in judicial custody for about a month. Finally, he was acquitted from the charge as brought by the judgment and order dated 18.08.2015. By the said arrest for the criminal action, the petitiner has lost prestige in the society which caused serious mental cruelty. In the cross examination, the respondent has categorically stated that he took the appellant to the place of posting for living a peaceful matrimonial life. He has denied the suggestion that the appellant was taken to the parental home after she gave delivery of the said male child. 8 PW-2, Smt. Mohan Kanna Debbarma is the mother of the respondent. In the cross examination, the respondent has categorically stated that he took the appellant to the place of posting for living a peaceful matrimonial life. He has denied the suggestion that the appellant was taken to the parental home after she gave delivery of the said male child. 8 PW-2, Smt. Mohan Kanna Debbarma is the mother of the respondent. She has stated that the marriage of the respondent with the appellant was solemnized 27.11.2009 as per Hindu Rites and customs. For few months, they lived the matrimonial life well. She has categorically stated that her sister-in-law could not tolerate her. She used to misbehave with her without any reason. Even abused her and her daughter Sangita Debbarma. She had been grudgingly planning to bring the criminal action against the respondent so that he was dismissed from his service. She has corroborated the other part of the statement of the respondent in respect of bringing the false criminal action, birth of their son and the respondent being arrested in connection with the said criminal case. In the cross- examination, nothing could be dented. 9. PW-3, Sabitri Debbarma is a resident of the village of the respondent. She has stated that after marriage, the respondent took the appellant to his place of posting and she stayed there for six months. She has categorically stated that during her visit in the house of the respondent, she found behaviour of the appellant towards the respondent, his widow mother, was inhuman. She used to hurl abusive slang towards her mother-in-law and the married sister-in-law, Sangita Debbarma, whenever she used to visit her parent home. She has categorically stated that the respondent made several attempts to bring back the appellant to the matrimonial home. Once she went with Satyajit Debbarma of their village for requesting the appellant to come to the matrimonial home but she denied. She has also admitted the fact of filing a criminal case against the respondent by the appellant and the arrest of the respondent. The entire family of the respondent was implicated in the criminal case. However, all of them got acquittal after trial. No effective cross-examination was carried one. 10. PW-4, Satyajit Debbarma, has stated that he was close to the family of the respondent. In the year 2009 their marriage was solemnized as per Hindu rites and customs. The entire family of the respondent was implicated in the criminal case. However, all of them got acquittal after trial. No effective cross-examination was carried one. 10. PW-4, Satyajit Debbarma, has stated that he was close to the family of the respondent. In the year 2009 their marriage was solemnized as per Hindu rites and customs. They lived peacefully for few months, thereafter the respondent took his wife [the appellant] to his place of posting. After six months, she returned to the native village of the respondent. The appellant used to misbehave with her mother-in-law without any cogent reason and abused her married sister-in-law Sangita Debbarma. He has corroborated when the appellant left the matrimonial home, he went with the respondent herein, but she denied to come back. Thereafter, she lodged the false complaint against the respondent, his mother and younger sister. The respondent was arrested and he was in detention for about one month. Later on all of them got acquittal from the said case. when in the cross-examination, he was asked whether the appellant was subjected to torture when she was residing at the matrimonial home, PW-4 denied the said suggestion squarely. 11. The appellant filed her evidence by affidavit as was done by the respondent. In para-5 of the affidavit, she has categorically stated that their marriage was solemnized according to Hindu rites and customs at her father's residence at Bilaschara in presence of relatives, villagers et al. she has categorically stated that when the respondent left her in her matrimonial home, she observed that mother-in-law and sister in law are bad cultured and ill-tempered ladies. They used to pick up quarrel with her, even they started physical torture on demand of dowry. She was mentally and physically tortured. After few months, she gave birth to a male child. After one month of the birth of her son, the respondent took her and her son to the matrimonial home. But, the mother in law did not bless her grandson. In the meanwhile, the respondent was transferred from Punjab to Shillong. The respondent promised her once he managed the official quarters, he would take her to the quarters. She had visited Shillong with her brother, Rubel Debbarma and one relative, Manoranjan Debbarma Her father, Hari Kumar Debbarma had also accompanied them. In the meanwhile, the respondent was transferred from Punjab to Shillong. The respondent promised her once he managed the official quarters, he would take her to the quarters. She had visited Shillong with her brother, Rubel Debbarma and one relative, Manoranjan Debbarma Her father, Hari Kumar Debbarma had also accompanied them. When she entered in the official quarters of the respondent in Shillong she found there one Nepali woman dressed in marital attire. On being asked the Nepali woman told them that she was the wife of the respondent. The said matter was informed to Jagat Bahadur Thapa, the quarters master. When she tried to go back to the matrimonial home, she was resisted by the inmates of the respondent. She was extensively cross examined, when she admitted that she did file the written complaint against the respondent for contracting the "second marriage". 12. DW-2, Hari Kumar Debbarma has corroborated the fact relating to the marriage, birth of a male child and his going to the official quarters of the respondent at Shillong. He found one Nepali woman at the residential quarters of the respondent. According to her, the said matter was informed to the Quarters Master. In the cross-examination, nothing could be dented. 13. DW-3, Rabindra Debbarma , is a close neighbour of the respondent. He has stated that the appellant's mother-in-law did not see the face of the grandson. After that, the respondent took the appellant to her parental house on assurance that he would take her back. One day, the appellant informed DW-3 that the respondent had contracted the second marriage. When the appellant came back to the matrimonial home, she was resisted. There was no effective cross examination. 14. DW-4, Dhirendra Debbarma, is the uncle of the appellant. He has stated that he could learn that the appellant was not happy in the matrimonial home. Even, her mother in law (PW-2) did not see her grandson's face. In such an atmosphere, she was taken back to her parental home. DW4 has also stated that the appellant had informed him that the respondent had contacted marriage with one Nepali woman at Shillong. He has admitted that the appellant lodged a criminal case against her husband. The Panchayat denied to take any action against the respondent. In the cross examination, nothing has come out to destroy the case of the respondent. By the judgment dated 23.05.2018, the Addl. He has admitted that the appellant lodged a criminal case against her husband. The Panchayat denied to take any action against the respondent. In the cross examination, nothing has come out to destroy the case of the respondent. By the judgment dated 23.05.2018, the Addl. District Judge, while analyzing the evidence of the maintainability of the suit, has observed that it is an admitted fact that both the parties belong to the scheduled tribe but they are Hindu and the marriage was solemnized as per Hindu rites and customs, and as such Section 2 (2) of Hindu Marriage Act, 1955 will apply in such marriages. The notification as contemplated under section 2(2) of the Hindu Marriage Act has not been issued by the Central Government. However, it has been later on observed by the Addl. District Judge as follows: "They are professed [sic. They profess] the Hinduism. It is also admitted fact that there is no establish procedure, customs or uses for regulating the matrimonial matter of the Tribal professing Hinduism, which is contrary to the Hindu marriage Act, 1955. Considering the above fact and taking into account of the principle laid down in the case of Kajal Rani Noatia (supra) by the Hon'ble High Court of Tripura I am of the opinion that the petition filed by the petitioner for a decree of divorce under the Hindu Marriage Act, 1955 is maintainable. 15. Thereafter, having referred to Savitri Pandey vs Prem Chandra Pandey reported in (2002) 2 SCC 73 where the apex court has defined cruelty' by stating that it contemplates a conduct of such type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb and health. Cruelty may be physical or may be mental. Mental cruelty is the conduct of the others spouse which causes mental suffering or fear in the matrimonial life of the other. Cruelty, therefore, postulates a treatment of the spouse with the other spouse with such cruelty as to cause a reasonable apprehension in his or her mind that would be harmful or injurious to live with the other spouse. It is quite distinguishable for the ordinary wear and tear of the family life. Cruelty, therefore, postulates a treatment of the spouse with the other spouse with such cruelty as to cause a reasonable apprehension in his or her mind that would be harmful or injurious to live with the other spouse. It is quite distinguishable for the ordinary wear and tear of the family life. In this regard, reliance has been placed by the respondent on G.V.N Kameswara Rao vs G. Jabilli reported in (2002) 2 SCC 296 and V. Bhagat vs D. Bhagat reported in (1994) 1 SCC 337 . Having applied the law in the fact situation of the case in hand, the Addl. District Judge has observed in para 18 of the judgment as follows: "18. The respondent wife in her pleading as well as in her examination in chief filed by affidavit did not deny the fact of institution of the case by her against the petitioner husband, mother-in-law and sister-in-law which was registered in the Ambassa Police Station bearing No.31/2013 under section 494/498A of IPC. It is also not disputed that in the said case the petitioner was arrested and detained in custody and subsequently he was acquitted. It is also admitted fact that since after lodging of the criminal case against her husband, mother-in-law and sister-in-law she did not reside with the petitioner. The case of the respondent that she was being tortured mentally and physically on demand of dowry and that her husband married one Nepali girl had not been proved in the criminal case. The respondent also before this court failed to produce any such evidence from which it can be inferred that the petitioner married with any other girl during the subsistence of his marriage with the respondent. The respondent did not provide any particulars of the second wife of the respondent. So the charge of bigamy has not been proved against the petitioner. 16. In the backdrop of the said finding, it has been observed that there cannot be any amount of doubt that for arrest of the respondent, he has suffered traumatic experience and his position in the society has suffered a jolt. The baseless allegation made even in the written statement, were proved to be unfounded. Thus, on the ground of both cruelty and desertion, a decree of divorce was granted, coupled with the order of maintenance allowance at Rs.7000/- for the appellant and Rs.5000 for her son, Alex Debbarma. The baseless allegation made even in the written statement, were proved to be unfounded. Thus, on the ground of both cruelty and desertion, a decree of divorce was granted, coupled with the order of maintenance allowance at Rs.7000/- for the appellant and Rs.5000 for her son, Alex Debbarma. A sum of Rs. 12,000/- in aggregate has to be paid by the respondent within the first week of every English calendar month. 17. Mr. PK Ghosh, learned counsel appearing for the appellant has challenged the finding on maintainability of the suit and the finding on cruelty and desertion. Mr. Ghosh, leaned counsel has submitted that the suit is clearly barred in view of section 2(2) of the Hindu Marriage Act, 1955. By sub-section 2 of Section 2 of the Hindu Marriage Act , it has been provided 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. Mr. Ghosh learned counsel has submitted that the Central Government has not published any such notification by exempting the member of the scheduled tribes within the meaning of clause 25 of Article 366 of the constitution from the prohibition as stated and hence, no divorce can be granted on the basis of the suit filed under the provisions of the Hindu Marriage Act, 1955. 18. Mr. Ghosh learned counsel has, in this regard, relied on a decision of the apex court, in order to buttress his contention on the issue of the maintainability of the suit. In Dr. Surajmani Stella Kujur vs Durga Charan Hansdah and Another reported in (2001) 3 SCC 13 where the apex court has observed in para 6 as follows: In this appeal the parties are admittedly tribals, the appellant being an Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution, the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub-section (2) of Section 2 of the Act. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution, the Act can be applied to Scheduled Tribes as well by a further notification in terms of Sub-section (2) of Section 2 of the Act. It is not disputed before us that in the Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Order (Amendment) Acts 63 of 1956, 108 of 1976, 18 of 1987 and 15 of 1990, both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two tribals, who otherwise profess Hinduism, but their marriage being out of the purview of Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santal Customs and usage". 19. Mr. Ghosh learned counsel has relied a decision of Kerala High Court in Dr. Bini B vs. Jayan P.R (Judgment dated 27.09.2012 delivered MAT Appeal 769 of 2012. Almost in a resembling situation, the Kerala High Court having considered Dr. Surajmani Stella Kujur (supra), has observed at length as under: "13. The application of custom among the Tribes and restrictions under Section 2(2) of the Act were not considered by the Family Court. It has been clearly stipulated in the Act that the provisions of the Act are not applicable to members of the Scheduled Tribe unless there is a notification issued by the Central Government in the Official Gazette making the Act applicable to the scheduled tribes. No such notification has been produced before the Family Court, therefore the order passed by the Family Court, Kalpetta is liable to be set aside." 20. Mr. Ghosh, learned counsel, he has contended further that both the appellant and the respondent are admittedly the member of the scheduled tribe (Tripuri Community) within the meaning of Article 366, clause 25 of the Constitution of India and as such the suit under Hindu Marriage Act, 1955 cannot be maintained for purpose of dissolution of marriage by a decree of divorce on the postulates, provided by section 13(1)(a) and 13(1)(b) of the Hindu Marriage Act. He has further contended that the findings on cruelty and desertion are perverse as those are not supported by any evidence. 21. He has further contended that the findings on cruelty and desertion are perverse as those are not supported by any evidence. 21. From the other side, Mr. Samarjit Bhattacharjee, learned counsel has emphasized on the admitted fact that both the appellant and the respondent have themselves pleaded that their marriage was solemnized as per Hindu rites and customs and hence the Hindu Marriage Act, 1955 would apply in the matter of dissolution of the said marriage. In this regard, Mr. Bhattacharjee, learned counsel has relied on a decision of apex court in Labishwar Manjhi vs Pran Manjhi and Others reported in (2000) 8 SCC 587 where the apex court having taken note of sub-section (2) of section 2 of the Hindu Succession Act which prohibits the tribals in the same way, as has been provided in the Hindu Marriage Act. For purpose of reference, Section 2(2) of Hindu Succession Act, 1956 is reproduced hereunder: "2(2). Notwithstanding anything contained in subsection (1) nothing contained in this 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." 22. In Labishwar Manjhi (supra), the apex court has imported a new construct called "Hinduised" for including those who embraced the customs followed by the Hindus. In this context, it has been observed as follows: "6. The question which arises in the present case is, whether the parties who admittedly belong to Santhal tribe are still continuing with their customary tradition or have they after being Hinduised changed their customs to that what is followed by the Hindus. It is in this context when the matter came first before the High Court, the High Court remanded the case for decision in this regard. After remand, the first appellate court recorded the findings, that most of the names of their families of the parties are Hindu names. Even P.W. 1 admits in the cross examination that they perform the pindas at the time of death of anybody. Females do not use vermillion on the forehead after the death of their husbands, widows do not wear ornaments. Even P.W. 2 admits that they perform Shradh ceremonies for 10 days after the death and after marriage, females used vermillion on their foreheads. Females do not use vermillion on the forehead after the death of their husbands, widows do not wear ornaments. Even P.W. 2 admits that they perform Shradh ceremonies for 10 days after the death and after marriage, females used vermillion on their foreheads. The finding is that they are following the customs of the Hindus and not of the Santhal customs. In view of such a clear finding, it is not possible to hold that Sub-section (2) of Section 2 of Hindu Succession Act excludes the present parties from the application of the said Act. Sub-section (2) only excludes members of any Scheduled Tribe admittedly as per finding recorded in the present case though the parties originally belong to the Santhal Scheduled Tribe they are Hinduised and they are following the Hindu traditions. Hence, we have no hesitation to hold that Sub-section (2) will not apply to exclude the parties from application of Hindu Succession Act. The High Court fell into error in recording a finding to the contrary. In view of this, the widow of Lakhiram would become the absolute owner by virtue of Section 14 of the said Act, consequently the gift given by her to appellant Nos. 2 and 3 were valid gift, hence the suit of respondent No. 1 for setting aside the gift deed and inheritance stands dismissed." 23. As the finding of this court might have a serious impact on the jurisdiction of the courts, this court sought assistance from the eminent lawyers practicing in this court. At the request of this court, Mr. AK. Bhowmik learned Advocate General of Tripura, Mr. S. Lodh, learned counsel, Mr. M. Debbarma, learned Addl. GA. and Mr. A Pal learned counsel have placed their views which came handy for this court. Their contribution is acknowledged and noted with appreciation. Mr. A.K. Bhowmik, learned Advocate General has opined that there is no ambiguity in the provision of section 2(2) of the said Act and since exclusion since has been made on the basis ethnicity and not on the basis of any other consideration, the provision of Hindu Marriage Act cannot be applied in respect of dissolution of marriage and hence the court cannot wield jurisdiction under Hindu Marriage Act, 1955. 24. Mr. M. Debbarma, learned Addl. GA has produced a note before this court to place his views that marriage is a unique construct of the civilization. 24. Mr. M. Debbarma, learned Addl. GA has produced a note before this court to place his views that marriage is a unique construct of the civilization. According to him, the customs cannot be extended by analogy and it cannot be established by a priorari method. He has also made reference to Dr. Surajmani Stella Kujur (supra) to contend that even if two tribals who otherwise profess Hinduism but since their marriage has been taken out from the purview of the Hindu Marriage Act, 1955 in the light of Section 2(2) of the said Act, the dissolution cannot be permitted under the said Act. He has also made reference to Dr. Bini B (supra). Mr. Debbarma learned Addl. GA has asserted that by conversion the member of the scheduled tribe may enter under the purview of Hindu Marriage Act. In this regard, he has made reference to a Kerala High Court decision (Betsy vs. Nil, Judgment dated 16.10.2009) where the Kerala High Court accepted the conversion as bringing the members of the Scheduled Tribes under the purview of the Hindu Marriage Act. A relevant passage is extracted hereunder: "All these circumstances, if established, we find no reason why the uncontroverted assertion of the appellants that the 1st appellant had become a Hindu by conversion before marriage cannot be accepted and the marriage performed in accordance with Hindu rites cannot be accepted as valid under the Hindu Marriage Act by the court below." 25. Mr. Debbarma, learned Addl. GA has candidly submitted that the question still remains in the realm of quandary whether a declaration by the Tribal persons that marriage had been solemnized as per Hindu rites and customs can be treated as Hindu by religion or Hindu by conversion. 26. Mr. S. Lodh, learned counsel has submitted that there is no method of formal conversion in Hinduism which is a most accepted as a way of life. Acceptance of it customs and rituals makes someone's identity as Hindu. There is no question of any form. Only during the marriage, last rite and worshipping, the Hindus follow a different customs and rites. If someone embraced such rites may be treated as converted to Hinduism. Acceptance of it customs and rituals makes someone's identity as Hindu. There is no question of any form. Only during the marriage, last rite and worshipping, the Hindus follow a different customs and rites. If someone embraced such rites may be treated as converted to Hinduism. Unless such conversion is proved, in view of section 2(2) of the Hindu Marriage Act, 1955 the dissolution of marriage cannot be determined under the said act, when the marriage is admittedly between the members of Scheduled Tribes within the meaning of clause 25 of Article 366 of the Constitution. 27. Mr. A . Pal, learned counsel has contended that when the marriage has been solemnized following the Hindu customs and rites, a technical approach be avoided. In this context, a decision of the Gauhati High Court in Anom Apang vs Geeta Singh reported in (2012) 2 GLR 583 has been referred by him. In Anom Apang the Gauhati High Court has observed as follows: "15. In the present case, the appellant-husband has not shown that he was not governed by Hindu law at the time of marriage or even at the time of the presentation of the petition for divorce. True he was a member of a tribal community, but he was not a member of a tribal community within the meaning of clause (25) of article 366 of the Constitution. This clause was applicable to him only on the promulgation of Act No. 10 of 2003 passed on 8th January, 2003 when the Constitution (Scheduled Tribes) Order, 1950 was amended thereby including the Adi Tribe from Arunachal Pradesh as a Scheduled Tribe. But this event occurred several years after the solemnization of the marriage. 16. In our opinion, therefore, even if the parties were married according to the Adi Tribal custom, the solemnization of the marriage was, for all intents and purposes, under the provisions of the Hindu Marriage Act since at that time both parties were Hindus (with the appellant-husband being assumed or deemed to be a Hindu, in the absence of any proof that the was not governed by Hindu law). That one of the parties ceased to be a Hindu after the solemnization of the marriage does not take away the jurisdiction of the court to deal with the petition for dissolution of a Hindu marriage as per the provisions of the Act. 17. That one of the parties ceased to be a Hindu after the solemnization of the marriage does not take away the jurisdiction of the court to deal with the petition for dissolution of a Hindu marriage as per the provisions of the Act. 17. The alternative submission of learned counsel for the appellant-husband is that after 8.1.2003, when the Adi Tribes was recognized as a Scheduled Tribe by virtue of the Constitution (Scheduled Tribes) Order, 1950 the learned Trial Judge ceased to have any jurisdiction in the matter by virtue of section 2(2) of the Act. 18. In our opinion, the alternative submission cannot stand even a moments scrutiny. As we have already observed earlier, what is required to be seen is not the person or personality involved, but the manner in which the marriage was solemnized. In this case, since the marriage was solemnized in terms of the Act (which included the Adi customary law at the relevant time), the learned Trial Judge would not cease to have jurisdiction to continue with the matter only because the appellant husband became a member of a Scheduled Tribe in terms of the Constitution (Scheduled Tribes) Order, 1950." 28. The opinion as expressed by the Gauhati High Court, has not taken care of the decision in Dr. Surajmani Stella Kujur (supra). In that decision, the apex court refrained from elaborating in respect of inter play of the provision of Section 2(2) of the Hindu Marriage Act and adoption of Hindu customs and rites at the time of marriage. In Anom Apang (supra) while discarding the alternative submission, it has been observed that what is required to be seen is not the person or the personality involved, but the manner with which the marriage was solemnized. As the marriage was solemnized in that case as per Hindu rites and customs as was prevalent previously Adi Community which was declared Scheduled Tribe within the meaning of clause 25 of the Article 366 of the constitution much later than the marriage was solemnized, the Gauhati High Court accepted that the court had the jurisdiction to deal with the petition for dissolution of a Hindu marriage as per the provision of the Hindu Marriage Act, 1955. Therefore, two questions are relevant on the issue of the maintainability of the suit in the perspective of the present case viz, (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? 29. A plain reading of Section 2(2) has clearly excluded "the members of any scheduled tribe within the meaning of clause 25 of Article 366 of the Constitution unless Central Government by the notification otherwise directs. For purpose of meaning of 'Hindu' Section 2(3) of the Hindu Marriage Act has provided that the expression "Hindu" in any portion of the said act shall be construed as if it included a person who though not a Hindu by religion, is nevertheless a person whom this act applies by virtue of the provision contained under section 3 of the Hindu Marriage Act. 30. Clause 25 of the Article 366 of the constitution on the other hand defines the expression "scheduled tribe" and Article 342 lays the manner in which Tribe may be notified. This has been done by the Constitution (Scheduled tribe) Order, 1950 and by the Constitution (Scheduled tribe) Order 1956. Sub-section 2 of Section 2 of the said Act has the imminent effect of the statutory exclusion that the person belonging to such notified tribe will in the matter of marriage, continue to be governed by their customary laws, which are akin to the personal law and hitherto applied to them, and not by any provision of the said Act, unless the central government by the notification otherwise directs. There is no dispute at the bar that no such notification has been issued by the central government. Anom Apong (supra) is quite distinguishable. As Adi tribe was not notified when two man and woman married as per Hindu rites and customs which was prevalent at the time of their marriage in their community. There is no dispute at the bar that no such notification has been issued by the central government. Anom Apong (supra) is quite distinguishable. As Adi tribe was not notified when two man and woman married as per Hindu rites and customs which was prevalent at the time of their marriage in their community. But when the dissolution of marriage was sought by a suit instituted under Hindu Marriage Act the question that had been raised whether Sub-section 2 of Section 2 of the Hindu Marriage Act would create a bar in applying the Hindu Marriage Act. The objection has been negatived on the ground that since the marriage was solemnized as per Hindu customs and rites when the said tribe was not notified under Article 342 of the Constitution, the Hindu marriage act would apply for dissolution of marriage. But the same principle would not apply if the tribes are notified under Article 342 of the Constitution. 31. For the state of Tripura, Tripuri community with all its derivatives have been notified way back in 1950 by the Constitution (Scheduled Tribes) Order 1950 and in view that in view of section 2 (2) of the Hindu Marriage Act, the said 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. As such, the suit was not maintainable. 32. So far the question of conversion is concerned, 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. 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. This court however, will affirm the finding in respect of cruelty as returned by the Addl. District Judge. 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. This court however, will affirm the finding in respect of cruelty as returned by the Addl. District Judge. However, the desertion has not been proved on preponderance of probabilities in as much as, the appellant has clearly stated that she had intention to restitute the marriage. But this finding will have no effect in the suit as the suit itself is not maintainable having barred by Section 2(2) of the Hindu Marriage Act, 1955. Accordingly, the appeal stands allowed. Before parting with the records and having considered the provision of Section 15 of Special Marriage Act, 1954, this court considers it appropriate to note that the said provision provides a very complex structure for registration of marriage. Even 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. Draw the decree accordingly. Send down the LCRs forthwith.