Jharkhand High Court
Smt. Sajni Tudu Wife Of Bhogta Tudu vs Sri Bhogta Tudu on 9 September, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.212 of 2023
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Smt. Sajni Tudu wife of Bhogta Tudu, daughter of Ganesh
Chandra Murmu, permanent resident of village Jondragora, P.O.
Sundernagar, P.S. Sundernagar, Town Jamshedpur, District
East Singhbhum, Jharkhand and at present resident of village
Nandlalpur, P.O. Akana Nischintpur, P.S. Lalgarh, District
Midanpur, West Bengal. ----- Appellant
Versus
Sri Bhogta Tudu, son of Chetan Tudu, permanent resident of
village Jondragora, P.O. Sundernagar, P.S. Sundernagar, Town
Jamshedpur, District East Singhbhum, Jharkhand and at
present resident of Sundernagar, Near Ram Mandir, Singh Galli,
Near Factory, Mouza Bayangbil, P.O. & P.S. Sundernagar, Town
Jamshedpur, District East Singhbhum, Jharkhand.
----- Respondent
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CORAM:HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Kaushik Sarkhel, Advocate
Mr. Ritesh Kumar, Advocate
For the Respondent : Mr. Shilpi Sandil Gadodia, Advocate
Ms. Shruti Shekhar, Advocate
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Per R. Mukhopadhyay, J.
08/09.09.2024 Heard Mr. Kaushik Sarkhel, learned counsel
appearing for the appellant and Mrs. Shilpi Sandil Gadodia,
learned counsel appearing for the respondent.
2. This appeal is directed against the order dated
28.4.2023 passed by Sri Amitesh Lal, learned Principal Judge,
Family Court, Jamshedpur in Original Suit No. 819 of 2022
whereby and where under the suit preferred by the appellant
under Section 18 of the Hindu Adoption and Maintenance Act
has been dismissed as not maintainable.
3. For the sake of convenience, both the parties are
referred to in this judgment as per their status before the
learned trial court.
4. The applicant (appellant herein) had preferred a Suit
against the respondent (respondent herein) wherein it has
been stated that the marriage of the applicant and the
respondent was solemnized as per Sarna rituals and customs
and the marriage was additionally solemnized as per Hindu
rites and customs. Out of the said wedlock, a son was born
who is now a major and gainfully employed in Haryana.It has
been stated that the applicant and the respondent worship
Hindu Gods and Goddesses and use Hindu names for
themselves and their son since the time of their ancestors,
who had followed the Hindu Sanatan religion. The applicant
was maintained by the respondent and both had jointly
purchased a land atBayangbil, Sundar Nagar, East
Singhbhum and constructed a house where they resided till
2020.Allegation has been leveled that the respondent was
having an illicit relationship with one Sangeeta Sorengand he
hadstopped maintaining the applicant. It has been stated that
the applicant has some ailment in her uterus and tumor has
also been detected in her breast and as such she is in need of
Rs.Two Lakhs for her treatment at Vellore. The respondent,
being a bank employee,drawing a salary of Rs.1,50,000/- will
receive an amount of Rs. 50 Lakhs towards his
superannuation benefits. The applicant has therefore prayed
that an amount of Rs. 50,000/- as maintenance, Rs.Two
Lakhs for her treatment as well as an amount of Rs. 20 Lakhs
as permanent alimony be directed to be extended to her by
the Respondent.
5. On being noticed, the respondent had filedhis written
statement in which it has been stated that the Suit preferred
by the applicant is not maintainable as the parties are
scheduled tribes. The applicant is residing with the
respondent at villageJondragora, Sundar Nagar,District
EastSinghbhum and that no document has been filed in
support of her ailment. It has been stated that the marriage
was solemnized as per tribal customary laws. The son of the
parties had completed his B. Tech course and it was the
respondent who had borne the entire educational expenses of
his son. It has further been stated that a land at Bayangbil,
Sundar Nagar was acquired in 2018in the joint name of the
parties. The applicant was in an alleged relationship with one
Shiva Tudu and when heprotested, the applicant and her
paramour had threatened that he and his son will be done to
death, for which a written information was given to the Officer
In-Charge, Sundar Nagar PS and SSP, Jamshedpur on
4.9.2022 and 6.9.2022 respectively.In spite of the conduct of
the applicant, the respondent used to sendRs. 30,000/- per
month to his son but stopped providing maintenance for the
applicant.The applicant hadpreferred Original Maintenance
Case No. 298 of 2022 which was withdrawn and later on in
connivance with Shiva Tudu she had filed the present
Suit.The respondent has denied of having any illicit
relationship with Sangeeta Soreng. The monthly salary has
been admitted to be Rs.1,37,000/- but only Rs. 6000/- is left
with the respondent on account of the deductions. It has been
stated that the applicant is unwilling to reside with the
respondent at Chakradharpur without any justifiable reasons.
6. During the pendency of the Suit, the respondent
had filed an application under Order 14, Rule 1 and 2 read
with Section 151 CPC to decide the issue of maintainability of
the Suit as a preliminary issue. This application was allowed
by the learned trial court and consequently the suit was
dismissedvide order dated 28.04.2023 which is the order
impugned to the present appeal.
7. Mr. Kaushik Sarkhel, learned counsel for the
appellant/applicant has submitted that the issue of
maintainability of the Suit cannot be decided as a preliminary
issueas the same involves mixed questions of law and facts,
particularly in the context of the present suit. The preliminary
issue in such situation has to be therefore decided together
with the other issues at the time of final disposal. The Hindu
rites and rituals are prevalent in marriages as well as in other
customary rituals so far as the parties are concerned and
which can only be proved by leading evidence. Mr. Sarkhel
has relied upon the case of Sathyanath&Ors. Vrs.
Sarojamanireported in AIR 2022 SC 2242.
8. Mrs. Shilpi SandilGadodia has defended the
impugned order dated 28.4.2023 by submitting that both the
parties are governed by customary rituals and even the
marriage between the respondent and the applicant was
solemnized as per Sarna rituals. It has been submitted that
Section 2(2) of the Hindu Adoption and Maintenance Act is
anexclusion clause and members of the scheduled tribe are
not governedby the provisions of the said Act. It has been
contended that the Suit itself is not maintainable as has
rightly been held by the learned trial court.
9. We have heard the learned counsel for the respective
parties.
10. Themaintainability issue raised by the respondent is
on account of his assertion that both the parties areSanthals
and are governed by their customary rites and therefore the
embargo under Section 2 of the Hindu Adoption and
Maintenance Act will come into play which will denude the
appellant of her objective involving the provisions of Section
18 of the Hindu Adoption and Maintenance Act for making
her claim. The applicant has stated that after her marriage
was solemnized as per the customary ritualsboth the parties
had also subjugated themselves to Hindu customs and
traditions and that their forefathers had abandoned the tribal
customs and have been hinduised in their faith, belief and
rituals. The issue raised by the respondent and controverted
by the applicant cannot be decided as a preliminary issue as
the same is a mixed question of law and facts. This issue has
to be conjointly decided with the other issues at the time of
final disposal of the Suit. While deciding such issue there
cannot be any hypothetical analysis as the same
dependsupon leading evidence. The absence of additional
facts and circumstances and failure to explain the necessity of
performing rituals as per Hindu rites and customs as noted by
the learned Principal Judge, Family Court, Jamshedpur have
acted as a pivotal ground for rejecting such claim. The
additional facts and circumstances can only be in the form of
evidence which can be led during trial, as such presumptive
conclusion will be against the spirit and intent of Order 14
Rule 2 CPC. We may at this juncture refer to the case of
Sathyanath&Ors. Vrs. Sarojamani(supra) wherein it has
been held as follows :-
"31. We find that the order of the High Court to direct
the learned trial court to frame preliminary issue on the
issue of res judicata is not desirable to ensure speedy
disposal of the lis between parties. Order XIV Rule 2 of
the Code had salutary object in mind that mandates the
Court to pronounce judgments on all issues subject to the
provisions of Sub-rule (2). However, in case where the
issues of both law and fact arise in the same suit and the
Court is of the opinion that the case or any part thereof
may be disposed of on an issue of law only, it may try
that suit first, if it relates to jurisdiction of the Court or a
bar to the suit created by any law for the time being in
force. It is only in those circumstances that the findings
on other issues can be deferred. It is not disputed that res
judicata is a mixed question of law and fact depending
upon the pleadings of the parties, the parties to the suit
etc. It is not a plea in law alone or which bars the
jurisdiction of the Court or is a statutory bar under Clause
(b) of Sub-rule (2).
11. As we have held that the issue of maintainability of
the suit is a mixed question of law and facts in the backdrop of
the claim and counter-claim of the parties, the impugned order in
such scenario dated 28.04.2023 is liable to be set aside.
Accordingly, the order dated 28.04.2023 passed by Sri Amitesh
Lal, learned Principal Judge, Family Court, Jamshedpur in
Original Suit No. 819 of 2022 is hereby quashed and set aside
andthe application preferred by the respondent under Order 14
Rule 1 and 2 read with Section 151 CPC is dismissed.
12. This appeal is allowed.
13. Pending Interlocutory application, if any, stands
closed.
(Rongon Mukhopadhyay, J.)
(Pradeep Kumar Srivastava, J.)
Shamim/-
