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2022 DIGILAW 900 (RAJ)

Sunil v. Kritika Paliwal

2022-03-15

RAMESHWAR VYAS

body2022
ORDER Rameshwar Vyas, J. - The instant revision petition has been filed by husband being aggrieved by the order dated 15.4.2021 passed by the learned Additional District Judge No.1, Barmer in Civil Misc. Case No. 94/2015 (07/2014), whereby application under Section 2(2) of the Hindu Marriage Act read with Order 7 Rule 11 CPC filed by him during proceedings under Section 13 of Hindu Marriage Act was dismissed. Brief facts of the case are as under: 2. Petitioner - wife preferred a petition under Section 13 of the Hindu Marriage Act seeking dissolution of marriage against the husband with the averment that she is Paliwal by caste and respondent - husband is by caste Meena. The provisions of Hindu Marriage Act are applicable for them. There was love affair between them since 2005. After that she realized the ill-behavour of the petitioner, she tried to keep distance from the petitioner. Then the respondent started to make mental and psychological pressures on respondent and they got married in the year 2011 in Arya Samaj Temple, Jaipur. Petitioner - wife. Alleging some incidents of cruelty committed against her, she filed the petition under Section 13 of Hindu Marriage Act for dissolution of marriage solemnized between them on 14.2.2011. 3. In reply to the petition under Section 13 of the Hindu Marriage Act, respondent admitted averments regarding caste of the parties and applicability of the provisions of Hindu Marriage Act on them. However, he denied the allegations of cruelty levelled against the respondent. 4. After framing of issues, on 4.3.2016 evidence of petitioner side was started. However, during cross-examination an application was filed by the respondent - revisionist herein to the effect that he is Meena by caste and member of Scheduled Tribe category. Therefore, the provisions of Hindu Marriage Act are not applicable in the matter. The said application was rejected by the impugned order upholding that marriage was solemnized between the parties in Arya Samaj Temple and not as per customs of the Scheduled Tribe. Only one member belongs to Scheduled Tribe. Learned trial court was of the opinion that the petition for dissolution of marriage is maintainable under the provisions of Hindu Marriage Act. Hence, the application filed by the respondent under Order 7 Rule 11 CPC read with Section 2(2) of Hindu Marriage Act was rejected. 5. Only one member belongs to Scheduled Tribe. Learned trial court was of the opinion that the petition for dissolution of marriage is maintainable under the provisions of Hindu Marriage Act. Hence, the application filed by the respondent under Order 7 Rule 11 CPC read with Section 2(2) of Hindu Marriage Act was rejected. 5. Aggrieved against the above order, this revision petition has been filed by the respondent - husband. The application was contested by the petitioner - wife by filing reply. Heard the learned counsel for the parties and perused the material available on record. 6. While relying on the judgment of Jharkhand High Court in the matter of Rajendra Kumar Singh Munda vs. Smt. Mamta Devi : FA No.186/2008 decided on 20.8.2015 and judgment of Tripura High Court in the matter of Smt. Rupa Debbarma vs. Sri Tapash Debbarma : MAT APP 06 of 2018, learned counsel for the respondent - revisionist herein submits that one of the party to the marriage is a member of Scheduled Tribe. Hence, the provisions of Hindu Marriage Act are not applicable on them and the learned trial court committed error in rejecting his application. 7. On the other hand, learned counsel for the petitioner relied on the judgment of Hon'ble Apex Court in the matter of Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah & Anr : Appeal (Crl.) No. 186/2001 (SLP (Crl) No. 2436/2000), decided on 14.2.2001, and judgment passed by this Court in the matter of Badri & Ors. vs. Gokul & Ors : S.B. Civil Second Appeal No. 72/1986 decided on 8.8.2013. 8. Provisions of Section 2(2) of Hindu Marriage Act reads as under:- Notwithstanding anything contained in sub-section (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. 9. It will be beneficial to reproduce the provisions of Section 29(2) of Hindu Marriage Act also, which reads as under: Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act. 10. It will be beneficial to reproduce the provisions of Section 29(2) of Hindu Marriage Act also, which reads as under: Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act. 10. After considering above provisions, it emerges that custom and usage of any tribe has been given importance over the provisions of Hindu Marriage Act. In the case of Dr. Surajmani Stella Kujur (supra) the expression 'custom and usage' has been explained. Hon'ble Apex Court held that 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. In this judgment provisions of Section 29 has also been referred. Hon'ble Apex Court held that the importance of the custom in relation to the applicability of the Act has been acknowledged by the Legislature by incorporating Section 29 saving the validity of a marriage solemnized prior to the commencement of the Act which may otherwise be invalid after passing of the Act. Hon'ble Apex Court further held that nothing in the Act can affect any right, recognized by custom or conferred by any said enactment to obtain the dissolution of a Hindu Marriage whether solemnized before or after the commencement of the Act even without the proof of the conditions precedent for declaring the marriage invalid as incorporated in Section 10 to 13 of the Act. 11. Rajasthan High Court also in the judgment cited by the respondent herein while interpreting similar provision of Section 2(2) of Hindu Adoption and Maintenance Act, 1954 held that this Court can take judicial cognizance of the fact that Meenas are notified Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution of India, but that by itself does not prove the alleged custom or usage, which in itself is an independent fact, required to be not only pleaded but also proved by cogent evidence. In absence thereof, it is to be presumed that Meenas, who otherwise follow Hindu religion, celebrate all Hindu festivals and go by Hindu customs and rites, would be governed by the normal law, which includes requisites of valid adoption envisaged in Section 6 of the Act of 1956. 12. Coming to the facts of the present case, it emerges that respondent in his reply to the divorce petition did not plead that their marriage was solemnized as per customs and usage of Meena community. No reference of any custom was also pleaded regarding dissolution of marriage. On the other hand, respondent admitted in reply that provisions of Hindu Marriage Act are applicable on them. In the absence of pleading, no issue was framed regarding applicability of the provisions of Hindu Marriage Act on the parties. Only during cross-examination respondent filed an application under Section 2(2) of the Hindu Marriage Act read with Order 7 Rule 11 CPC for seeking rejection of the divorce petition. 13. In the considered opinion of this Court, trial court committed no error in rejecting application. Trial court has assigned valid reasons for rejecting the same. In the impugned order it has been specifically held that marriage between the parties was solemnized in Arya Samaj Temple and not according to customs and usage of Scheduled Tribe. In the divorce petition, respondent - husband did not disclose any custom or usage which confers right upon him against maintainability of divorce petition in accordance with Hindu Marriage Act. In the absence of any pleading, respondent - husband cannot be permitted to raise this issue at the stage of evidence. Before raising this issue, petitioner was required to plead that their marriage was solemnized as per custom and usage of Scheduled Tribe community i.e. Meena in this case as also custom regarding dissolution of marriage, which he failed to plead. There is no force in this petition, hence, the present revision petition is dismissed.