Satprakash Meena v. Alka Meena). He submits, the question answered by the judgment was that the
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MATA No. 256 of 2022 Ramahari Naik …. Appellant -versus- Sujata Naik …. Respondent Advocates appear in the case: For appellant : Mr. Abhisek Agarwal, Advocate Mr. Ramesh Agarwal, Advocate For respondent : Mr. R. K. Pradhan, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE M.S. SAHOO J U D G M E N T -------------------------------------------------------------------------------------------------- Date of hearing and judgment : 31st January, 2024 -------------------------------------------------------------------------------------------------- ARINDAM SINHA, J. 1. Mr. Agarwal, learned advocate appears on behalf of appellant- husband. He submits, his client is aggrieved by judgment dated 18th July, 2022 made by the family Court. By it there was order made for dismissal of the suit. According to him, the family Court erred in treating the suit as Page 1 of 12 // 2 // one carrying claim for dissolution of the marriage under provisions in Hindu Marriage Act, 1955. His client had invoked article 441 in Mulla’s Principles of Hindu Law, 13th Edition published by N. M. Tripathy, Private Limited, Bombay. 2. Appellant had invoked principles of Hindu Law because he had earlier filed for divorce invoking section 13 in the Act of 1955. The case was registered and numbered as Mat. Case no.118/295 of 2013-12 before the family Court. On 31st October, 2016 the suit was dismissed on contest on ground of maintainability, considering statutory bar provided under section 2(2). Respondent-wife had brought false complaint against appellant-husband causing him to be taken into custody. In appeal arising in the criminal proceeding, appellant-husband stood acquitted. Appellant- husband be released from the bond of marriage and for that he had again petitioned the family Court. 3.
Legal Reasoning
Mr. Agarwal relies on view taken by learned single Judge in the High Court of Delhi on judgment dated 7th July, 2021 in, inter alia, C.R.P 1/2021 (Satprakash Meena v. Alka Meena). He submits, the question answered by the judgment was that the civil proceeding initiated Mata No.256 of 2022 Page 2 of 12 // 3 // by the parties belonging to a Scheduled Tribe was maintainable inspite of the bar under section 2(2) in the Act of 1955. 4. On merits Mr. Agarwal submits, his client wants declaration for dissolution of the marriage on ground of cruelty. He relies on judgment dated 12th September, 2019 made by the Additional Sessions Judge in Criminal Appeal no.28 of 2017, being his client’s appeal against judgment of conviction passed by the Judicial Magistrate First Class in G.R. Case no.571 of 2012. He submits, the judgment was tendered as exhibit-2 in the family Court. It would appear from said judgment, even parents-in-law of his client had no complaint against him but respondent- wife had withdrawn herself from his society, lodged false complaint to initiate criminal case and get conviction, set aside in appeal. 5. On query from Court he submits, custom in the Scheduled Tribe, to which his client and respondent-wife belongs is that the village elders deliberate over marital disputes. There was such a panchayat and decision made for respondent-wife to rejoin his client’s society but she deliberately stayed away. In the circumstances, there should be declaration for dissolution of the marriage. Mata No.256 of 2022 Page 3 of 12 // 4 // 6. Mr. Pradhan, learned advocate appears on behalf of respondent-wife and submits, on the contrary it is appellant-husband who physically attacked his client because she came to know about his illicit affair with his brother’s wife. He tried to kill her. She escaped to her parental home and accordingly lodged complaint, pursuant to which there was criminal case and conviction. On query from Court he submits, his client has not taken any step to prefer appeal against said judgment dated 12th September, 2019 passed by the Additional Sessions Judge, to this Court. Without prejudice he submits, the civil proceeding stood barred under section 2(2). Inspite of earlier civil proceeding dismissed by reason of the bar, appellant-husband again filed the civil proceeding in abuse of the process. There should be no interference in appeal. 7. On perusal of impugned judgement it appears, there was no adjudication on merits. We reproduce below a sentence from paragraph 6 in impugned judgement. “6. ... ... ... Though there is allegation and counter allegation between the parties for cruelty against each other and both the parties are residing separately since 2012 and there is no conjugal relationship between them, Mata No.256 of 2022 Page 4 of 12 // 5 // this court has no inherent power to pass a decree for dissolving the marriage between the parties belonging to Scheduled Tribe community.” In the circumstances, we have to first deal with the contention regarding bar under section 2(2). The provision is reproduced below. “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.” Clause (25) under article 366 and article 342 in the Constitution of India, in that order, are reproduced below. (emphasis supplied) “366(25). “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution; 342. Schedule Tribes--(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal Mata No.256 of 2022 Page 5 of 12 // 6 // communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” 8. We have ascertained from the learned advocates for the parties that the parties belong to a Scheduled Tribe mentioned in the Presidential Order. Nothing was shown to us that there was a Central Government notification to negate the bar in respect of the parties’ Scheduled Tribe. As such, the bar applies squarely inasmuch as neither of them can claim any relief in terms of provisions in the Act of 1955. However, that does not mean they or either of them are remediless. 9. Family Courts Act, 1984 by section 7 provides for jurisdiction. The provision includes territorial and subject matter jurisdiction. Matters over which family Courts have jurisdiction include jurisdiction to receive, try and determine a suit or proceeding for a declaration, inter Mata No.256 of 2022 Page 6 of 12 // 7 // alia, of dissolution of marriage. In providing for the jurisdiction there is no mention of any applicable law. 10. This brings us to the petition filed by appellant-husband. By it was invoked article 444 in Mulla’s Principles of Hindu Law, subsequently corrected as article 441. There is no dispute before us on the parties following the Hindu way of life. The article says divorce is not known to general Hindu Law. The article, however, does provide for divorce by custom. Submission on behalf of appellant-husband is, the custom is for the village panchayat to decide. There was decision taken for respondent-wife to return to appellant-husband. Mr. Pradhan submits, on the contrary the village panchayat left the decision to be taken by the parties themselves. On query from Court he submits, his client did not return to appellant-husband thereafter. 11. View taken by the learned single Judge in Satprakash Meena (supra) is not binding on us. It is of no consequence that parties follow the Hindu way of life or therefore, inspite of them belonging to a Scheduled Tribe, can seek relief on application of provisions under the Act of 1955. The bar under section 2(2) is clear. Legislative mandate Mata No.256 of 2022 Page 7 of 12 // 8 // can be subject to judicial review. That said, Courts cannot overcome legislative mandate in proceeding for adjudication of a lis. The mandate can only be interpreted by Court. We have already found that parties are not remediless by reason of the bar, as can invoke the jurisdiction provision in Family Courts Act, 1984. 12. Notwithstanding the family Court having had jurisdiction to receive, try and determine the civil proceeding of appellant-husband seeking dissolution of the marriage, as made under article 441 in Mulla’s Principles of Hindu Law, said Court erred in treating the civil proceeding as invoking provisions in the Act of 1955. This obviously was at instance of respondent-wife. Said Court having had jurisdiction, ought to have gone into the merits of allegations made by appellant- husband in claiming declaration for dissolution of the marriage. In adjudicating the controversy, said Court nor we are bound by provisions in the Act of 1955. As the bar operates, therefore, the adjudication can be at best, on principles borrowed therefrom. 13. On merits we have before us documentary evidence by way of said judgment dated 12th September, 2019 made by the Additional Mata No.256 of 2022 Page 8 of 12 // 9 // Sessions Judge, from which respondent-wife chose not to prefer appeal to this Court. The judgment has become final. The judgment clearly says, inter alia, as have been extracted and reproduced below. “5. I perused the LCR. That the deposition of father of the complainant Purna Chandra Naik stated in his cross- examination since 29.04.2012 the informant was residing with him. He further stated that his daughter and her husband were residing in a rented house of one Akshay Mallick of Nayapalli, Bhubaneswar. For the last time he visited to the rented house of his daughter in the month of January 2012. He admitted that he has good relationship with his son-in-law and he had never seen any disturbance between his daughter and son-in-law. Only he heard this matter from his daughter. P.W.2 Panchamani Naik, the mother of the informant- victim she stated in her cross-examination that her son- in-law (appellant) gave respect to them and they also affectionate towards him. She further stated that she can not say when and what happened between the informant- victim and the accused at Bhubaneswar. In the month of December, 2011 her victim daughter left Bhubaneswar and came to her house since then and her daughter remained with her in her house. After 3-4 months her Mata No.256 of 2022 Page 9 of 12 // 10 // daughter lodged FIR after she left Bhubaneswar. Other prosecution witnesses not supported to the prosecution. 6. … … … She further stated in her cross- examination that she left the house on 15.04.2012 at morning. At that time her husband was not present and he had left for duty after trying to kill her. She further stated that her husband is giving her monthly maintenance of Rs.4,000/- per month and one divorce case is also pending before the Family Court, Baripada. Now she has taken decision to divorce her husband and she further stated that her husband is only earning member of his family. The family depends upon his salary. It is crystal clear that the accused–appellant is no way involved guilty of an offence U/s 498(A) IPC.” (emphasis supplied) 14. Relying on above documentary evidence we have clear and reliable proof that respondent-wife left company of appellant-husband. While appellant-husband asserted that the village panchayat directed restitution, on behalf of respondent-wife submission was that the village panchayat left it to the parties to take their own decision. It appears, respondent-wife took decision to not return to appellant-husband. This again is borne out from said judgment, wherein the Additional Sessions Mata No.256 of 2022 Page 10 of 12 // 11 // Judge had recorded intention of respondent-wife, expressed that she had taken decision to divorce her husband. In the facts and circumstances, we declare the marriage solemnised on 12th May, 2009 as dissolved. 15. Keeping in mind that provisions in the Act of 1955 do not have any application to the parties and that respondent-wife admitted before the Additional Sessions Judge that appellant-husband was taking care of his parents, presently him holding rank of Assistant Sub-Inspector (ASI), we think it fit to direct him to make fixed deposit of ₹10,00,000/- in favour of the minor child with any nationalised bank on instruction for automatic renewal till the girl child achieves 21 years of age or gets married, whichever is earlier. Nominee on the deposit will be respondent-wife. There must also be instructions given to the bank for crediting monthly interest to account of the minor, to be opened jointly with respondent-wife. The deposit is to be made by 29th February, 2024. Appellant-husband will go on paying maintenance hereby enhanced to ₹5,000/- per month, co-terminus on her getting her re-married, if she does. We expect that respondent-wife will not have occasion to file for execution. Mata No.256 of 2022 Page 11 of 12 // 12 // 16.
Decision
Impugned judgment is set aside. The appeal is disposed of. The decree be drawn up expeditiously. (Arindam Sinha) Judge (M.S. Sahoo) Judge Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR SAHOO Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 01-Feb-2024 18:21:05 Mata No.256 of 2022 Page 12 of 12