JUDGMENT : RADHAKISHAN AGRAWAL, J. 1. This appeal is filed under Section 19(1) of the Family Courts Act, 1984 (for brevity ‘Act of 1984’) by the appellant/husband (for brevity ‘husband’) against the judgment and decree dated 06.11.2017 passed by the Judge Family Court, Kabirdham (Kawardha), C.G. in Civil Case No. 22-A of 2016 whereby the application under Section 13 (1) of the Hindu Marriage Act, 1955 (for brevity ‘the Act of 1955’) filed by the husband for grant of decree of divorce, has been dismissed. 2. The husband moved an application with the averments that he and respondent//wife (for brevity ‘wife’) were belong to Scheduled Tribe, namely, Gond caste. Their marriage was solemnized in the year 2001 as per Hindu rituals and customs and from their wedlock, they were blessed with three daughters, who were aged about 12 years, 10 years and 6 years, respectively. In the year 2007, husband was appointed as Constable in the Police Department and after completion of training, he was posted at Police Station Rengakhar on 23.10.2009. Thereafter, attitude of wife towards the husband started changing and she refused to accompany him in his workplace whenever and wherever he was transferred. In the month of September 2011, without there being any sufficient cause, wife left the company of husband and spread rumour in her relatives that the husband had performed second marriage with another lady, who was residing with him. In the month of November 2011, she went to her parental house along with her children and thereafter she did not return. The husband made efforts and went to wife’s residence along with his relatives to bring back his wife, but, she refused to join and resume matrimonial chord. 3. The wife has filed reply to divorce petition, in which, it was pleaded that husband and wife both belong to Gond caste under Scheduled Tribe. The wife denied all adverse pleadings made therein and pleaded that she is always ready and willing to live with husband and discharge her matrimonial obligations and it is the husband who refused to live with her and he himself has disclosed to her that he is having extramarital affair with some lady. It is, therefore, pleaded that husband is not entitled to get decree of divorce and Family Court is rightly justified in dismissing the petition filed by the husband. 4. Mr. It is, therefore, pleaded that husband is not entitled to get decree of divorce and Family Court is rightly justified in dismissing the petition filed by the husband. 4. Mr. Ram Kumar Tiwari, learned counsel for the husband would submit that learned Family Court has committed illegality by not considering the fact that wife is staying at her parental house on her own will since 2011, and thus, wife has committed cruelty towards the husband and his parents. He further submits that Family Court has also committed illegality in not appreciating the evidence in its correct perspective. It is contended that the finding recorded by the Family Court that application for grant of divorce is not maintainable in view of provisions contained in Section 2(2) of the Act of 1955, is not correct. The marriage between husband and wife was solemnized as per Hindu rites and customs, hence, the provisions of the Act of 1955 would apply in the matter of dissolution of said marriage. 5. Per contra, Ms. Usha Chandrakar, learned counsel for the wife would submit that both the parties belong to Gond caste under Scheduled Tribe, therefore, in view of provisions contained in Section 2(2) of the Act of 1955, Family Court has rightly dismissed the petition for divorce under the Act of 1955 filed by the husband. It is contended that the husband does not prove his case beyond reasonable doubt and the wife has raised an objection with regard to maintainability of application under section 13 (1) of the Act of 1955 stating that both the parties belong to Schedule Tribe Community, hence, the suit for divorce is clearly barred in view of provisions contained in Section 2 (2) of the Act of 1955. 6. We have heard learned counsel for the parties and perused the record of the Family Court. 7. Perusal of the record would show that after filing of written statement, during pendency of the case in Family Court, wife filed an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for brevity ‘CPC’) on 28.01.2017 and sought amendment in her pleading. In the said application, it is mentioned that on 07.02.2015, husband has previously filed a petition for divorce under section 13(1) of the Act of 1955. In the said application, it is mentioned that on 07.02.2015, husband has previously filed a petition for divorce under section 13(1) of the Act of 1955. The wife has filed reply to the said petition stating therein that Hindu Law is not applicable whereas Customary Law prevailing for Gond caste is applicable. Considering the overall facts and circumstances of the case, the Family Court dismissed the petition. It further shows that such fact was concealed by the wife and husband has again filed an application for grant of decree of on 10.05.2016 under section 13 (1) of the Act of 1955. The wife was requested to amend the pleadings regarding that both the parties were governed by Gond caste under Scheduled Tribe, as such, Hindu Law is not applicable. The Family Court in its order dated 01.02.2017 only allowed the jurisdiction of hearing of the case and other amendments proposed are not allowed. It is not disputed that both the parties belong to Gond caste under Scheduled Tribe community. 8. The Family Court in paragraph 22 of the impugned judgment held as follows: ^^22- Ádj.k esa ;g Lohd`r rF; gS fd mHk;i{k xksaM tkfr ds gS rFkk mUgksaus xksaM tkfr ds jhfr&fjokt ds vuqlkj fookg lEiUu fd;s FksA vr% ,slh fLFkfr esa /kkjk 02 ds mifu;e 02] mi/kkjk 01 esa varfoZ"V fdlh ckr ds gksrs gq, bl vf/kfu;e esa varfoZ"V dksbZ Hkh ckr fdlh ,slh tutkfr ds lnL;ksa dks tks lafo/kku ds vuqPNsn 366 ds [k.M 25 ds vFkZ ds varxZr vuqlqfpr tutkfr gks] ykxw u gksxh] tc rd fd dsUæh; ljdkj 'kkldh; jkti= esa vf/klwpuk }kjk vU;Fkk fofufnZ"V u dj nsaA dsaæ ljdkj }kjk vuqlwfpr tutkfr dk fookg vFkok rykd fgUnw fookg vf/kfu;e 1955 ls 'kkflr gksxk] ,slk dksbZ 'kkldh; jkti= ;kfpdkdrkZ }kjk ÁLrqr ugha fd;k x;k gSA ,slh fLFkfr esa U;k;n`"Vkar lwjtef.k ¼MkW½ cuke nqxkZpj.k] ,ŒvkbZŒvkjŒ 2001 ,lŒlhŒ 938 esa i{kdkj vuqlwfpr tutkfr gksus ds QyLo#i mudk fookg laca/kh fo"k;d fgUnw&fookg vf/kfu;e] 1955 dh /kkjk 2¼2½ dh ifjf/k ls ijs gksuk ekuk x;k gSA ,slh fLFkfr esa ;kfpdkdrkZ dk Ádj.k Ápyu ;ksX; Hkh gksuk ugha ik;k tkrk gSA** 9. The Family Court has recorded a specific finding regarding maintainability of divorce petition that the parties being members of Scheduled Tribe, issue relating to their marriage is beyond the purview of the Act of 1955, and therefore, it is not maintainable. 10. The Family Court has recorded a specific finding regarding maintainability of divorce petition that the parties being members of Scheduled Tribe, issue relating to their marriage is beyond the purview of the Act of 1955, and therefore, it is not maintainable. 10. The word “Jurisdiction” is defined under Section 7 of the Act of 1984. Family Court having a jurisdiction to decide a suit or proceeding between the parties for dissolution of marriage and other related matters, above provision is applicable to all religions and communities and the Court is conferred with a power to adjudicate the matters under Section 7 of the Act of 1984. There was no material to support such finding and it has been arrived at without there being any pleading and necessary specific issue in this regard. 11. In the case at hand, without there being any averment/objection relating to maintainability of divorce petition under the Act of 1955, the Family Court arrived at such an untenable conclusion that the divorce petition is not maintainable being outside the purview of Section 2 (2) of the Act of 1955, and thereby committed an jurisdictional error i.e. exercise of jurisdiction vested in it by law with material irregularity evident on the face of record. 12. It is well settled proposition of law that when custom becomes part of the tribal community as a law, it will guide their attitude and practice in their social and economic life. Custom is considered as the guiding principle amongst them, which will acquire the status of law, the Family Court has not considered the application of custom amongst the Tribes as well as restrictions under Section 2(2) of the Act of 1955. Even if a finding is arrived at as above by the Family Court without giving an opportunity to plead and adduce evidence to prove the legal evidence, it will amount to a jurisdictional error while exercising the jurisdiction. 13. It is also a well settled principle that for assumption of jurisdiction by a Court or a Tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the Court or Tribunal has power to decide adjudicatory facts or facts in issue, based upon the pleadings of the parties. 13. It is also a well settled principle that for assumption of jurisdiction by a Court or a Tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the Court or Tribunal has power to decide adjudicatory facts or facts in issue, based upon the pleadings of 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. In such a case, where parties claimed to be governed by Customary Law, a Court or a Tribunal 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. 14. While dealing with the course to be followed by the Family Court in a matter of divorce involving Customary Law, Hon’ble Supreme Court in case of Yamanaji H. Jadhav vs. Nirmala, (2002) 2 SCC 637 , observed as follows: “7...........As per the Hindu Law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the Court......” 15. Further, Hon’ble Supreme Court in case of Subramani and Others vs. M. Chandralekha, (2005) 9 SCC 407 observed as follows: “10. It is well established by long chain of authorities that prevalence of customary divorce in the community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by the person propounding such custom......” 16. It was thus necessary for the Family Court to call upon the party, seeking divorce under the Customary Law to plead and establish such custom by leading evidence. In any event, learned Family Court would not have dismissed the suit as not maintainable, since the parties belonged to Tribal Community and are governed by Customary Law, which is not a codified substantive law, like the Hindu Marriage Act, 1955, Special Marriage Act, 1954 and Divorce Act, 1869. 17. As observed at the outset, we have consciously refrained from referring to one or the other custom, said to be operating in the Oraon Community regarding divorce, since it is for the party to plead and prove such customs for seeking relief before the Family Court. 18. The illuminating opinion of the Supreme Court rendered in case of Salekh Chand (Dead) by LRs. vs. Satya Gupta and Others, (2008) 13 SCC 119 , followed in case of Rathnamma and Others vs. Sujathamma and Others, (2019) 19 SCC 714 , paragraph 16 is reproduced below: “16. This Court in a judgment reported as Salekh Chand (Dead) by LRs. vs. Satya Gupta and Others, (2008) 13 SCC 119 , while dealing with the claim of adoption under the Hindu Adoption and Maintenance Act, 1966, held as under: “21. In Mooka Kone vs. Ammakutti, AIR 1928 Mad. 299, it was held that where custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy. It is not disputed that even under the old Hindu Law, adoption during the lifetime of a male issue was specifically prohibited. In addition, I have observed that such an adoption even if made would be contrary to the concept of adoption and the purpose thereof, and unreasonable. It is not disputed that even under the old Hindu Law, adoption during the lifetime of a male issue was specifically prohibited. In addition, I have observed that such an adoption even if made would be contrary to the concept of adoption and the purpose thereof, and unreasonable. Without entering into the arena of controversy whether there was such a custom, it can be said that even if there was such a custom, the same was not a valid custom.” 19. In case of Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah and Another, (2001) 3 SCC 13 , Hon’ble Supreme Court has held as follows: “10. For custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence.” 20. Hence, it is the duty of the Court to record only such findings, which are to be followed on a proper appreciation and a legitimate inference from the evidence on record. In such circumstance, we are of the considered view that finding of the Family Court with regard to maintainability of the divorce petition without proper material, pleadings or evidence, is an error apparent on the face of record, which suffers from vice of exercise of jurisdiction in an irregular manner. Such irregularity in exercise of jurisdiction vested in Family Court by law, undoubtedly, gave rise to a jurisdictional error and, therefore, occasioned an erroneous order within the meaning of Section 13 of the Act of 1955. 21. In view of the above authoritative pronouncements of law on the issue by the Hon’ble Supreme Court as well as in view of the facts and circumstances of the instant case, the matter needs to be remanded back to the Family Court for reconsideration/correction of apparent jurisdictional error. 22. Since an order which suffers from jurisdictional error is a void order, and as such, the finding of the Family Court on the issues of ‘cruelty’ and ‘desertion’ are irrelevant, hence, the same are not touched by us in this judgment. 23. In the result, the appeal is allowed. 22. Since an order which suffers from jurisdictional error is a void order, and as such, the finding of the Family Court on the issues of ‘cruelty’ and ‘desertion’ are irrelevant, hence, the same are not touched by us in this judgment. 23. In the result, the appeal is allowed. Impugned judgment and decree dated 06.11.2017 passed by the Family Court, Kabirdham (Kawardha), C.G. is set aside. The matter is remanded to the Family Court, Kabirdham (Kawardha) to reconsider the point of maintainability as well as merits of the case, in accordance with law. The Family Court is also directed to frame a specific issue in regard to customary divorce. In this regard, we permit the parties to amend their pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce. The Family Court shall make endeavour to conclude the proceedings expeditiously. The parties are directed to appear before the Family Court concerned on 31.01.2023. Record of the Family Court be sent back forthwith.