Del HC | Can members of Scheduled Tribes following Hindu customs claim to be kept out of purview of HMA? HC answers; highlights need for Uniform Civil Code

Delhi High Court: Prathiba M. Singh, J., held that,

“…relegating parties to customary Courts when they themselves admit that they are following Hindu customs and traditions would be antithetical to the purpose behind enacting a statute like the HMA, 1955.”

Question for Consideration:

Applicability of the Hindu Marriage Act, 1955, in respect of the parties who belonged to the Meena community in view of the exclusion under Section 2(2) of the HMA,1955.

Petitioner and respondent sought divorce under Section 13-1(ia) of the HMA, 1955.

An FIR was lodged by the Respondent under The Protection of Women from Domestic Violence Act, 2005 as also an application seeking maintenance, under Section 125 of The Code of Criminal Procedure, 1973.

In the divorce petition, since the respondent did not appear, she proceeded ex-parte. However, after she was permitted to participate by the Supreme Court, she filed an application under Order VII Rule 10 and Order VII Rule11 of the Code of Civil Procedure, 1908 before the family court.

In the said application respondent sought for rejection of the divorce petition, on the ground that the provisions of the HMA, 1955 do not apply to the parties, on the ground that the provisions of the HMA do not apply to the parties concerned as they are members of a notified Scheduled Tribe in Rajasthan, and hence the HMA, 1955 would not be applicable to the case of the said parties in view of Section 2(2) of the HMA, 1955.

Family Court held that the provisions of the HMA, 1955 do not extend to the Meena community, which was a notified Scheduled Tribe. The said order was under challenge in the present petition.

Analysis, Law and Decision

Bench noted that the case of the wife was that the Meena community was covered by the exclusion under Section 2(2) of the HMA.

Divorce petition under Section 13-1(ia) of the HMA was dismissed by the trial court on the basis of the exclusion in Section 2(2) of the HMA, 1955. The trial court had not conducted the trial in the petition or considered the evidence in the matter, but summarily dismissed the petition simply on the ground that since the parties belong to the Meena Community, the provisions of the HMA, 1955 would not be applicable.

Court noted that the parties have since inception pleaded that they belong to the Meena community, however, their marriage was solemnized according to Hindu rites and ceremonies, and they follow Hindu customs.

Respondent-wife had admitted that:

(i) that the marriage was conducted as per the “Hindu Riti Riwaz”

(ii) that the marriage was effected by following the “Saptapadi”

(iii) that the marriage was conducted in front of `Agni’ – fire.

Whether in view of the above facts, parties ought to be governed by the provisions of the HMA or should they be relegated to procedures of the Meena tribe?

The word `Hindu’ is not defined in any of the statutes. It is in view of the fact that there is no definition of Hindu, that the Supreme Court has held in Labishwar Manjhi  v. Pran Manjhi, (2000) 8 SCC 587, that if members of Tribes are Hinduised, the provisions of the HMA, 1955 would be applicable.

Further, the High Court expressed that the manner in which the marriage had been conducted in the present matter and the customs being followed by the parties show that as in the case of Hindus, the marriage is conducted in front of the fire. The Hindu customary marriage involves the ceremony of Saptapadi which has also been performed in the present case. The various other ceremonies, as is clear from the marriage invitation are also as per Hindu customs.

Hence,

If members of a tribe voluntarily choose to follow Hindu customs, traditions and rites they cannot be kept out of the purview of the provisions of the HMA, 1955.

Adding to the above, High Court also stated that nothing was placed before the Court to show that the Meena community Tribe had a specialized Court with proper procedures to deal with the issues.

Therefore, if the Court has to choose between relegating parties to customary Courts which may or may not provide for proper procedures and safeguards as against codified statutes envisioning adequate safeguards and procedures, this Court is inclined to lean in favour of an interpretation in favour of the latter, especially in view of the binding precedent of the Supreme Court.

Divorce Proceedings

Court held that if proper tribal customs were not established or the following of Hindu customs or rites was admitted by the parties, there was no reason to hold that the provisions of the HMA, 1955 would not apply. 

The trial court erred in noting the admissions of Respondent-wife which led to the incorrect conclusion. 

Courts have been repeatedly confronted with the conflicts that arise in personal laws

Bench remarked that persons belonging to various communities, castes, and religions, who forge marital bonds, struggle with such conflicts. It is with the hope of bringing uniformity and to eliminate these struggles and conflicts, that the Supreme Court way back in 1985, in Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556 observed:

“…A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.”

In Jordon Diengdeh v. S.S. Chopra, (1985) 3 SCC 62, the Supreme Court observed in the context of dissolution of marriage between a couple wherein the wife belong to the Naga Tribe and the husband was a Sikh by religion that Article 44 of the Constitution needs to be implemented in its letter and spirit.

Need for a Uniform Code has been again echoed by the Supreme Court in ABC v. State (NCT of Delhi), (2015) 10 SCC 1.

Lastly, the Court concluded stating that the need for a Uniform Civil Code as envisioned under Article 44, has been reiterated from time to time by the Supreme Court. Cases like the present one repeatedly highlight the need for such a Code – ‘common to all’, which would enable uniform principles being applied in respect of aspects such as marriage, divorce, succession etc., so that settled principles, safeguards and procedures can be laid down and citizens are not made to struggle due to the conflicts and contradictions in various personal laws.

The hope expressed in Article 44 of the Constitution that the State shall secure for its citizens Uniform Civil Code ought not to remain a mere hope.

The Supreme Court had, in 1985 directed that the judgment in Jordon Diengdeh v. S.S. Chopra, (1985) 3 SCC 62, to be placed before the Ministry of Law to take appropriate steps. However, more than three decades have passed since then and it is unclear as to what steps have been taken in this regard till date.

In view of the above discussion, the appeal was allowed.[Satprakash Meena v. Alka Meena, 2021 SCC OnLine Del 3645, decided on 7-07-2021]

Advocates before the Court:

For the Petitioner: F.K. Jha, Advocate

For the Respondent: Abhinav Gupta and Nitesh Ranjan, Advocates