The High Court of Jharkhand recently comprising of a bench of Justice Aparesh Kumar Singh & Justice Anubha Rawat Choudhary observed that Family Courts constituted under secular law cannot turn away parties seeking divorce under Customary laws. (Baga Tirkey v. Pinki Linda & Anr.)
The bench remarked that in absence of codified substantive law, The Family Courts Act, 1984 being secular law applying to all religions would be applied as there is no precedent that bars members of the Scheduled Tribe to approach the Family Court by filing any suit or proceeding relating to people.
Facts of the Case
The Court was hearing an appeal against an order of the Family Court, Ranchi dismissing a suit for Divorce filed by the Appellant, a member of the Oraon community, on the ground of adultery, as non-maintainable.
Contention of the Parties
The learned amicus curiae submitted that even customs and usage cannot impede the rights of a citizen to approach the Court of Law, i.e. a family court seeking a divorce. It was contended that if at all a custom forbids access to Family Court and relegates a person seeking divorce to Panchayat/Community court, the same will be violative of right to access to justice and any sanctification of customs, resulting in violation of fundamental rights ought not to be resorted to.
Courts observation & Judgment
The bench noted, “The Family Court fell in error in holding that the suit is not maintainable in absence of codified substantive law as are applicable to 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.”
The bench further observed, “If at all, such matter is filed, seeking adjudication under the law, applicable to them, i.e. 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.
The Family Court Act, being a secular law, applying to all religions and communities and conferred with the power to adjudicate on matters mentioned in Clauses (a) to (g) of the Explanation to Section 7 of the FCA, could not have held that the suit is not maintainable in the absence of a codified Customary Law of the parties.”
The bench allowing the appeal remarked, “Family Court would not have straightaway dismissed the suit as not maintainable holding that there is no codified substantive law, governing the parties. In such a case, where parties claimed to be governed by Customary Law, the learned Family Court 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.”
Read Judgment @Latestlaws.com
Picture Source : https://commons.wikimedia.org/wiki/File:Jharkhand_High_Court.jpg
