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2023 DIGILAW 52 (TRI)

Amrit Lal Chakma v. Babita Chakma

2023-09-05

APARESH KUMAR SINGH, ARINDAM LODH

body2023
JUDGMENT (ORAL) 1. Heard Mrs. Sujata Deb (Gupta), learned counsel for the appellanthusband and Mr. S. Rahman, learned counsel for the respondent-wife. 2. This appeal under Section 28 of the Hindu Marriage Act, 1955 read with Section 19(1) of the Family Courts Act, 1984 seeks setting aside of the order dated 15.02.2022 passed by the learned Judge, Family Court, Kailashahar, Unakoti, Tripura in case No.T.S.(Divorce) 81 of 2021 by which the application for divorce through mutual consent under Section 13B of the Hindu Marriage Act, 1955 filed by the parties has been rejected, inter alia, holding as under: "Both the petitioners namely, Sri Amrit Lal Chakma and Smt. Babita Chakma are present before the Court. The instant petition has been filed u/s-13-B of the Hindu Marriage Act, 1955 jointly by Sri Amrit Lal Chakma, the husband-petitioner No.1 and Smt. Babita Chakma, wife-petitioner No.2 respectively, for dissolution of their marriage by way of decree of divorce on mutual consent. The petitioners have submitted that they are Buddhist by religion and though they are tribal, their marriage was solemnized as per Section-8(1) of The Hindu Marriage Act, 1955 and therefore, the petition may be allowed. Perused the petition and heard them, in person. It appears that both the petitioners belongs to Chakma Community and admittedly they are tribal within the meaning of Clause 25 of Article 366 of the Constitution of India. Now, let me examine whether the petition of the petitioners can be entertained in view of Section 2(2) of the Hindu Marriage Act 1955. Section 2 reads as follows.... 2. Application of Act. (1) This Act applies- (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, (b) to any person who is a Buddhist, Jaina or Sikh by religion, and (c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Explanation. Explanation. The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be: (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and (c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. (2) 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. (3) The expression 'Hindu' in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. State Amendment Pondicherry: In section 2, insert the following sub-section: (2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the Renoncants of the Union territory of Pondicherry. [Vide Regn. 7 of 1963, sec. 2 and Sch. (w.e.f. 1-10-1963).] There is no doubt that the parties are Buddhist by religion and they belong to 'Schedule Tribe' Community and being such, are very much within the purview of the Act. The marriage has been solemnized as per Section-8(1) of the Hindu Marriage Act, 1955 as have been stated by the parties. So, as per Section-2 of The Hindu Marriage Act it would appear that their petition is totally maintainable but from a bare reading of Sub-section-2 of the Act, it would appear differently and it is that the Legislatures has made a restriction in entertaining petition of this nature in respect to parties belonging from the Schedule Tribe Community in accordance to Clause 25 of Article 366 of the Constitution unless, Central Government by a notification in the 'official gazette' otherwise directs. Now, unless a notification is issued by the Central Government providing any other procedure in view of Section-2(2) of the Hindu Marriage Act 1955, the present petition cannot be held to be maintainable. Now, unless a notification is issued by the Central Government providing any other procedure in view of Section-2(2) of the Hindu Marriage Act 1955, the present petition cannot be held to be maintainable. This Court is, therefore, not able to entertain any petition for divorce in respect of any member of 'Schedule Tribe' Community within the meaning of Clause 25 of Article 366 of the Constitution. The Divorce relating to Tribal Community should be governed by the Customary and Tribal Rules of those societies but in no circumstance, this Court can entertain petition of this nature relating to any member of Schedule Tribe Community as per The Hindu Marriage Act, 1955. Hence, this suit is dismissed. It is, therefore, disposed of uncontested. Make necessary entry in the T.R." 3. It is pointed out that the learned Family Court despite taking note of the fact that the parties are Buddhist by religion though they are tribal and their marriage was solemnized as per Section 8(1) of the Hindu Marriage Act, 1955 refused to entertain the petition for divorce only on the ground that they are members of the Scheduled Tribe community within the meaning of Clause 25 of Article 366 of the Constitution and as such, the petition under the Hindu Marriage Act, 1955 could not be entertained. Learned counsel for the parties have submitted a joint written note, inter alia, assailing the impugned judgment on a number of grounds. 4. The bare facts of the case are that the marriage between the parties was solemnized on 20.04.2007 as per Section 8(1) of the Hindu Marriage Act, 1955. On 16.11.2009 said marriage was duly registered by the District Marriage Registrar, Kailashahar under Section 8(1) of the Hindu Marriage Act, 1955. On 21.07.2011 one male child namely Shreyan Chakma was born out of the wedlock. Due to maladjustment in conjugal relationship, they separated from each other from 29.08.2019. However, they again reunited on 01.02.2020 and stayed together as such up to 21.10.2020. Since 21.10.2020 they have finally separated from the life of each other and are residing separately. The son is living with the mother, i.e. the respondent since their separation. A copy of the marriage certificate has been annexed to the joint written notes as Annexure-A. They further submit that initiatives to reunite them and mitigate their matrimonial dispute by close relatives and well-wishers did not succeed. The son is living with the mother, i.e. the respondent since their separation. A copy of the marriage certificate has been annexed to the joint written notes as Annexure-A. They further submit that initiatives to reunite them and mitigate their matrimonial dispute by close relatives and well-wishers did not succeed. A village meeting was also held on 07.11.2021 as per their custom presided over by the President of Machmara Chagala Panchayat. Thereafter, parties decided to move the competent Family Court for a divorce through mutual consent under Section 13B of the Hindu Marriage Act, 1955 on 24.11.2021. As per the amicable settlement, the minor son would remain with the father and the respondent-mother would be allowed visitation rights by bringing him to her residence on his own expense. If the appellant got transferred, he will arrange to send their minor son to the respondent. The appellant will bear all expenses in respect of commuting, fooding and lodging during the stay of their minor son at the house of the respondent. Both the parties further came to an agreement that the respondent would get Rs.3,00,000/- (rupees three lakhs) as permanent alimony and thereafter, she would not make any claim for alimony from the appellant in future. 5. The following grounds have been urged to assail the impugned order:- "I. For that, the impugned order passed by Ld. Family Judge, Kailashahar is apparently a result of mis-appreciation of fact and law involved in the case. II. For that, the impugned order is fully dealt with misconception of law and unsustainable in the eye of law. III. For that, the Ld. Court below failed to appreciate and understand that the appellant and the respondent by religion Buddhist which is Hindu as per Hindu Marriage Act, 1955 as such they are belong to Hindu and guided by Hindu Marriage Act, 1955. IV. For that, the Ld. Court below appreciated that the appellant and respondent are Buddhist by religion and they belong to 'Schedule Tribe' Community and they are very much within the purview of the Hindu Marriage Act, 1955 despite that the Ld. Court dismissed the mutual divorce application illegally which is liable to be set aside and quashed. V. For that, the Ld. Court below appreciated that the appellant and respondent are Buddhist by religion and they belong to 'Schedule Tribe' Community and they are very much within the purview of the Hindu Marriage Act, 1955 despite that the Ld. Court dismissed the mutual divorce application illegally which is liable to be set aside and quashed. V. For that, the Ld. Court below could not understand that the marriage solemnized between the appellant and the respondent as per Sec. 8 of the Hindu Marriage Act and it must be dissolved accordance with the said Act but the Ld. Judge, Family Court rejecting the prayer of the appellant and the respondent under section 13B of the Hindu Marriage Act, 1955 whimsically and as such the said order is liable to be set aside. VI. For that, Section 2 of the Hindu Marriage Act, 1955 specifies that persons to whom the act is applicable. Clauses (a) (b) and (c) of subsection (1) of Section 2 make the Act applicable to a person who is Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj and to a person who is a Buddhist, Jain or Sikh by religion, it is also applicable to any other person domiciled in the territories of India who is not a Muslim, Christian, Parsi or Jew by religion. The applicability of the act is, therefore, comprehensive and applicable to all persons domiciled in the territory of India who are not Muslims, Christians, Parsis or Jews by religion. As the appellant and the respondents are Buddhist by religion they are covered by the Hindu Marriage Act, 1955. VII. For that, the appellant and the respondents admittedly are tribals who profess Hinduism as such the marriage ought to be dissolved only in accordance with the provision of the Hindu Marriage Act, 1955. VIII. For that, the impugned order passed by the Ld. Trial Court below is otherwise bad in the eyes of law and liable to be set aside by this Hon'ble Court. IX. For that, in view of the legal and factual infirmities in the impugned Judgment as submitted above, the order passed by the Ld. Trial Court in favour of the respondent is not sustainable and is liable to be set aside. X. For that, the Ld. IX. For that, in view of the legal and factual infirmities in the impugned Judgment as submitted above, the order passed by the Ld. Trial Court in favour of the respondent is not sustainable and is liable to be set aside. X. For that, the Ld. Court below has failed to consider the facts and circumstances properly, hence the Ld. Court below ought to allow the application of the dissolution of marriage filed by the appellant and respondent mutually." 6. Learned counsel for the parties have relied upon the provisions of Section 2 of the Hindu Marriage Act, 1955, in particular, Clauses (a), (b) and (c ) of sub-section (1) thereto which stipulate that the Act applies to any person who is a Hindu by religion in any of its forms or developments, including a person who is a Buddhist, Jaina or Sikh by religion as per Clause 2(1)(b). This Act applies to any person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with therein if this Act had not been passed. 7. It is submitted that the learned Family Court, however, relying upon sub-section (2) of Section 2 of the Hindu Marriage Act, 1955 has come to a conclusion that since the parties are Scheduled Tribe within the meaning of Clause 25 of Article 366 of the Constitution, unless the Central Government by a notification in the official gazette otherwise directs the Act would not apply to them. 8. Learned counsel for the parties have taken a plea that though the parties are tribal but their marriage was registered under Section 8(1) of the Hindu Marriage Act, 1955 and as such, the case of the parties should be governed under the Act of 1955. 9. Learned counsel for the parties also submit that instead of adjudicating the dispute on merits after framing issues, the learned Family Court has rejected the application on a misconceived understanding of the application of Hindu Marriage Act, 1955 to the case of the parties though their marriage was registered under the Hindu Marriage Act. 9. Learned counsel for the parties also submit that instead of adjudicating the dispute on merits after framing issues, the learned Family Court has rejected the application on a misconceived understanding of the application of Hindu Marriage Act, 1955 to the case of the parties though their marriage was registered under the Hindu Marriage Act. As such, they submit that the parties cannot be rendered remediless in the face of the provisions of such a secular Act, like the Family Courts Act, 1984 which applies to all communities and religions without distinction. 10. We have considered the submissions of learned counsel for the parties and taken note of the pleadings. 11. The Family Courts Act, 1984 has been enacted in public interest for the establishment of the Family Courts for speedy settlement of the family disputes in exercise of the legislative power of the Parliament traceable to Article 246(2) of the Constitution of India referable to Entry-11-A under List-III of Seventh Schedule as inserted by 42nd Amendment Act, 1976 i.e. 'Administration of justice, constitution and organization of all courts, except the Supreme Court and the High Court'. 12. The preamble to the Family Courts Act, 1984 states that it is an Act to provide for the establishment of Family Courts with a view to promote conciliation and to secure speedy settlement of the disputes relating to marriage and family affairs and for matters connected therewith. The Family Courts Act is a secular law applying to all religions. Section 7(1)(A) of the Family Courts Act, 1984 confers 'all the jurisdiction' hitherto exercised by any District Court or any Subordinate Civil Court in suits or proceedings relating to matters mentioned in Clauses-(a) to (g) of the Explanation. Clause-(a) of the Explanation reads as 'a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage'. Use of the words 'all the jurisdiction' makes the legislative intent clear that all the enumerated matters in the explanation to Section 7 would be the exclusive domain of the Family Courts established under the Family Courts Act, 1984. Use of the words 'all the jurisdiction' makes the legislative intent clear that all the enumerated matters in the explanation to Section 7 would be the exclusive domain of the Family Courts established under the Family Courts Act, 1984. In other words, the Family Courts Act, 1984 created a forum for adjudication of matrimonial matters of the nature enumerated in the explanation to Section 7 of the Family Courts Act, 1984, which forum can be resorted to by one and all, be it a member of scheduled tribe or a person of any religion. Reliance is placed on the decision of the High Court of Jharkhand in the case of Baga Tirkey vrs. Pinki Linda & another in First Appeal No.124 of 2018, judgment dated 08.04.2021. 13. In the case of K.A. Abdul Jaleel vrs. T.A. Shahida reported in (2003) 4 SCC 166 the Apex Court at paragraphs-11 and 14 thereof quoted hereunder has held that it is a well-settled principle of law that the jurisdiction of a Court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of the Act, in the opinion of the Apex Court, would frustrate the object wherefor the Family Courts were set up: '11.......The wordings 'disputes relating to marriage and family affairs and for matters connected therewith' in the view of this Court must be given a broad construction. The Statement of Objects and Reasons, as referred to hereinbefore, would clearly go to show that the jurisdiction of the Family Court extends, inter alia, in relation to properties of spouses or of either of them which would clearly mean that the properties claimed by the parties thereto as a spouse of other; irrespective of the claim whether property is claimed during the subsistence of a marriage or otherwise. 14. It is now a well-settled principle of law that the jurisdiction of a court created specially for resolution of disputes of certain kinds should be construed liberally. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up.' 14. In the case of Balram Yadav vrs. The restricted meaning if ascribed to Explanation (c) appended to Section 7 of the Act, in our opinion, would frustrate the object wherefor the Family Courts were set up.' 14. In the case of Balram Yadav vrs. Fulmaniya Yadav reported in (2016) 13 SCC 308 the Apex Court has explained the scope of jurisdiction under Section 7(1) Explanation (b) of the Family Courts Act as under: "...Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws.' 15. The illuminating opinion of the Apex Court leaves no room of doubt on an expansive and liberal interpretation of the jurisdiction of the Family Courts under the Family Courts Act, 1984. There is no precedent which bars members of the Scheduled Tribe to approach the Family Court by filing any suit or proceedings relating to matters mentioned in Clauses-(a) to (g) of the Explanation to Section 7 of the Family Courts Act, 1984. If at all, such matter is filed, seeking adjudication under the law, applicable to them i.e. the Customary Laws, they cannot resort to the provisions of Hindu Marriage Act, 1955, if the parties are not governed by the Hindu Marriage Act, 1955. 16. In the present case, the parties have pleaded that though they are Scheduled Tribes but they are Buddhist and have solemnised and registered their marriage under the Hindu Marriage Act, 1955. It is for the parties to plead and prove that they were sufficiently Hinduised for being governed by the provisions of the Hindu Marriage Act, 1955. 16. In the present case, the parties have pleaded that though they are Scheduled Tribes but they are Buddhist and have solemnised and registered their marriage under the Hindu Marriage Act, 1955. It is for the parties to plead and prove that they were sufficiently Hinduised for being governed by the provisions of the Hindu Marriage Act, 1955. The provisions of Section 2(1)(b) of the Hindu Marriage Act also provides that the Act applies to any person who is a Buddhist, Jaina or Sikh by religion. As such, the opinion of the learned Family Court that simply because the parties belong to Scheduled Tribe, their application under the Hindu Marriage Act, 1955 could not be entertained, would not be proper as the parties have professed that they have solemnized their marriage under Hindu Marriage Act and have also got it registered under Section 8(1) of the Act of 1955. The learned Court should have allowed the parties to plead and prove that they are Hinduised and are governed by the Hindu Marriage Act, 1955 and that they had got their marriage registered under Section 8(1) of the Hindu Marriage Act, 1955. 17. The Family Court has procedural jurisdiction to entertain a suit for dissolution of marriage and there is no patent lack of jurisdiction. The Family Court seems to have posed a wrong question and answered it incorrectly thereby committing error of jurisdiction. 'Adjudicatory Facts' and 'Jurisdictional Facts' are different. In this regard, the opinion of the Apex Court in the case of Carona Ltd. vrs. Parathy Swaminathan & Sons reported in (2007) 8 SCC 559 paragraphs-27, 29 and 36 are quoted hereunder: "27. Stated simply, the fact or facts upon which the jurisdiction of a Court, a Tribunal or an Authority depends can be said to be a 'jurisdictional fact'. If the jurisdictional fact exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist, a Court, Tribunal or Authority cannot act. It is also well settled that a Court or a Tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not possess. 29. But there is distinction between 'jurisdictional fact' and 'adjudicatory fact' which cannot be ignored. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not possess. 29. But there is distinction between 'jurisdictional fact' and 'adjudicatory fact' which cannot be ignored. An 'adjudicatory fact' is a 'fact in issue' and can be determined by a Court, Tribunal or Authority on 'merits', on the basis of evidence adduced by the parties. It is no doubt true that it is very difficult to distinguish 'jurisdictional fact' and 'fact in issue' or 'adjudicatory fact'. Nonetheless the difference between the two cannot be overlooked....... 36. It is thus clear 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.' 18. The above exposition makes the distinction absolutely clear. As per the opinion of the Apex Court, extracted hereinabove, the facts or facts upon which the jurisdiction of a Court, a Tribunal or an Authority depends can be said to be 'Jurisdictional Fact'. If the 'Jurisdictional Fact' exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist, a Court, Tribunal or Authority cannot act. It cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter by erroneously assuming existence of a jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not possess. 19. In the present case, the underlying jurisdictional fact as pleaded efore the Family Court was that though both the parties belong to a Scheduled Tribe community but they have adopted Buddhism. Their marriage was performed as per Hindu Marriage Act and has been registered under the Hindu Marriage Act. Whether the parties could plead and prove that they were sufficiently Hinduised to be governed by the Hindu Marriage Act, 1955 was a matter of determination on issues being the 'Adjudicatory Facts'. As such, simply being guided by the fact that the parties did belong to a Scheduled Tribe community, the suit ought not to have been dismissed. The learned Family Court ought to have framed an issue to that effect that whether the parties are sufficiently Hinduised to be governed by the Hindu Marriage Act. As such, simply being guided by the fact that the parties did belong to a Scheduled Tribe community, the suit ought not to have been dismissed. The learned Family Court ought to have framed an issue to that effect that whether the parties are sufficiently Hinduised to be governed by the Hindu Marriage Act. It was thus necessary for the parties, seeking divorce under the Hindu Marriage Act to plead and establish that they are sufficiently Hinduised. We, however, consciously refrain from making any observation on the above issues. 20. We accordingly set aside the impugned order dated 15.02.2022 passed in case No.T.S.(Divorce) 81 of 2021 by the learned Judge, Family Court, Kailashahar, Unakoti, Tripura and remand the matter to the Family Court to frame appropriate issues in that regard. We permit the parties to amend the pleadings, if they so desire and also to lead evidence on the issues that they are Hinduised and are governed by the Hindu Marriage Act and have got their marriage registered under Section 8(1) of the Hindu Marriage Act, 1955. The Family Court will consider the matter afresh without being influenced by the observations made by this Court hereinabove expeditiously. 21. In order to expedite the proceedings, the parties themselves or through their counsel should appear before the learned Family Court, Kailashahar, Unakoti, Tripura on 05.10.2023. 22. The appeal is allowed. Pending application(s), if any, also stands disposed of. 23. Let a copy of the judgment be communicated to the Court concerned without any delay. 24. Send down the lower Court records to the Court concerned.