Cannot Turn Away Parties Seeking Divorce Under Customary Laws: Jharkhand HC

In the present case, the Jharkhand High Court ordered that the Family Court can’t always turn away parties who seek divorce under their customary laws.

Background 

An appeal was filed against the order of Ranchi Family Court that dismissed the suit on the ground of non-maintainability for divorce filed by Appellant Husband who is a member of Oraon community on the ground of adultery.

The family court referred to the Customary Laws of the Munda and the Oraon books and held that as there no substantive codified law that applies to the parties and further noted that section 2(2) under the Hindu Marriage Act, 1955 making it inapplicable to the Scheduled Tribe members within the meaning of Article 366 of the Indian Constitution unless notified by Central Government.

The family Court was further of the view that since appellants were seeking the divorce considering the customs and usage applicable to the parties hence the same cannot be adjudicated before the court of law. Only the Community Panchayat can look into it. 

Jurisdictional Facts & Adjudicatory Facts     

Division Bench Headed by Justice Aparesh Kumar Singh and Justice Anubha Rawat Choudhary discussed both the concept of 'Adjudicatory Facts and Jurisdictional Facts.

The Adjudicatory Facts are fact in issue and determined on merits of the case by tribunal, court, or Authority by taking into account pieces of evidence, adduced by parties. Such facts are decided by taking into account the pleadings of parties. Whereas the facts on which jurisdiction of the Court is decided are Jurisdictional facts and decided by the Court, Tribunal, or Authority along with other issues.

The Bench explained the jurisdictional facts pleaded before the family court was that both the parties belonged to Oraon Community and their marriage solemnized as per the Customary Law of Oraon.

Core Issue

Whether a suit for divorce filed before Family Court can be dismissed by considering it as non-maintainable on the ground that the parties to suit solemnized their marriage per the Customary Law of Oraon.

Courts Observation 

It was observed by the HC that family court being a secular law applies to all the communities and religions and also confers the power to adjudicate under the explanation of Section7 clause (a) to (g) of FCA and could have not considered as suit being non-maintainable.

It further added that the family court should have framed the issue to effect that parties are governed by Customary Law and allowed the parties to plead and prove the customs under which they are governed and not straightaway dismissed the suit as non-maintainable.

Findings of Court

The Court observed that use of the words 'all the jurisdiction' under Section 7 of the Family Courts Act makes the legislative commitment unblemished that the enumerate matters stated in the provision would be the limited domain of the Family Courts. Such reliance was placed on the Supreme Court's remarks in KA Abdul Jaleel v. TA Shahida, (2003) 4 SCC 166, that jurisdiction of a court is created particularly for resolution of disputes of certain kinds must be interpreted liberally.

The Family Courts Act creates a forum for adjudicating the matrimonial matters of the nature enumerated under Section 7 explanation of FCA and this forum can be resorted to by one and all including the scheduled tribe or a person of any religion.

It was submitted by Amicus Curiae Kumar Vaibhav and Shubhashis Rasik Soren that even customs and usage cannot obstruct the rights of a citizen to approach the Court of Law for seeking divorce and was contended that if at all a custom bars access to Family Court and transfers a person seeking divorce to Panchayat/Community court will violate the right to access to justice and any elevation of customs results in violation of fundamental rights ought not to be resorted to.

Court’s Decision

A Division Bench comprising of Justices Aparesh Kumar Singh and Anubha Rawat Choudhary decided the Family Court fell in error in holding that the suit is not maintainable in absence of codified substantive law as applicable to the parties. Further, the issue that whether the parties can plead and prove the custom must be decided on merits after taking into account pleadings and evidence on record.

The Court also highlighted that the Family Courts Act, 1984 being secular law applies to all religions and thus there is no precedent that bars members of Scheduled Tribe to approach the Family Court by filing any suit or proceedings relating to matters mentioned in Section 7 of the Family Courts Act.

The Court also orders that if the matter is filed for seeking adjudication under the law, applicable to them, i.e., Customary Laws then they can’t resort to the provisions of Hindu Marriage Act, 1955 if the parties are not governed by it.

Conclusion

The court’s decision that the Family Court is empowered to adjudication of a suit of divorce filed before it irrespective of the fact that marriage solemnized was as per customary law is appropriate as customs and usage cannot obstruct the rights of a citizen to approach the Court of Law for seeking divorce and if customs bars access to Family Court and transfers a person seeking divorce to Panchayat/Community court will violate the right to access to justice and will be violative of fundamental rights of a person.