Sunil vs Kritika Paliwal
2022 Latest Caselaw 4093 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Revision Petition No. 59/2021

Sunil S/o Devi Lal, by caste Meena, Aged About 33 Years, R/o 26-27, Shivnagar-A, Near SKIT College, Ramnagariya Jagatpura, Jaipur

----Petitioner Versus Kritika Paliwal W/o Sunil, D/o Shri Krishan Chandra Paliwal, by caste Paliwal, Aged About 30 Years, R/o Quarter No. 5 Type 3 Postal Colony, Barmer. At Present C/o Dr. Saroj Paliwal Hospital, Near Mother Teresa School, Balotra Tehsil Pachpadra, District Barmer.

                                                                ----Respondent


For Petitioner(s)        :     Mr. Sravan Saini
For Respondent(s)        :     Mr. Manish Tak



          HON'BLE MR. JUSTICE RAMESHWAR VYAS

                                    Order

15/03/2022

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:

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

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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.

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.

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

(3 of 6) [CR-59/2021]

under Order 7 Rule 11 CPC read with Section 2(2) of Hindu

Marriage Act was rejected.

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.

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.

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.

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

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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."

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."

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

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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.

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.

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

(6 of 6) [CR-59/2021]

with Order 7 Rule 11 CPC for seeking rejection of the divorce

petition.

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.

(RAMESHWAR VYAS),J 112-Mak/-

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