Jharkhand High Court
Rajendra Kumar Singh Munda vs Mamta Devi on 20 August, 2015
Author: D.N.Patel
Bench: D.N. Patel, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 186 of 2008
Rajendra Kumar Singh Munda Son fo Late Mangal Singh Munda resident
of Village Sonahatu, P.O. & P.S. Sonahatu and District Ranchi (Now
Khunti)
... ... Appellant/Petitioner
Versus
Smt. Mamta Devi w/o Sri Rajendra Kumar Singh Munda, D/o Late
Bishwanath Singh Munda residing at Village Amlesha, P.O. & P.S. Tamar
District Ranchi (Now Khunti)
... ... Respondent/Opp.Party
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CORAM: HON'BLE MR. JUSTICE D.N. PATEL HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant: M/s Jai Prakash, Sr. Advocate For the Respondent: Satish Kumar Deo, Advocate
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th 07/Dated 20 August , 2015 Per D.N.Patel,J.
1. This appeal has been preferred against the judgment and order dated 26th August, 2008, passed by the Principal Judge, Family Court, Ranchi in Matrimonial Title Suit No. 246 of 2007, whereby an application preferred by this appellant for divorce under Section 13 of the Hindu Marriage Act, 1955 has been dismissed and therefore, original applicant has preferred this appeal.
2. Having heard counsel for both sides and looking to the facts and circumstances of the case, it appears that this appellant is a member of a tribal community, viz. Munda and, therefore, looking to Section 2(2) of the Hindu Marriage Act, 1955, this act is not applicable to the appellant as the appellant is a member of a Scheduled Tribe within the meaning of Article 366(25) of the Constitution of India. For the ready reference Section 2(2) of the Hindu Marriage Act, 1955 is quoted as under:
""2. Application of Act.(1)..................... (2) Notwithstanding anything contained in subsection (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.
(3)...................""
In view of the aforesaid provisions and as this appellant is a Member of a Scheduled Tribe within the meaning of Article 366(25) of the Constitution of India, Hindu Marriage Act, 1955 is not applicable to him.
-2-3. For ready reference, Sub-Clause 25 of the Article 366 is quoted hereunder:
"366.Definitions. In this Constitution, unless the context otherwise requires, the following expression have the meanings hereby respectively assigned to them, that is to say (1) .......................................................................................................... (2) .........................................................................................................
......................................................................................................... ......................................................................................................... (25) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within 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; ................................................................................................... ................................................................................................... ................................................................................................... (30)............................................................................................ ...................................................................................................."
(Emphasis supplied) In view of the Article 366(25) of the Constitution, Scheduled Tribe means such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of Constitution of India.
4. It further appears that by the Notification (The Constitution(Scheduled Tribes)Order, 1950), the President of India, in exercise of the powers conferred under Article 342 (1) of the Constitution of India, has declared the tribes or tribal communities under Article 342(1). For ready reference, relevant part of The Constitution (Scheduled Tribes) Order, 1950, especially for erstwhile State of Bihar reads as under:
" THE CONSTITUTION (SCHEDULED TRIBES) ORDER, 1950 In exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India, the President, after, consultation with the Governors and Rajpramukhs of the States concerned, is pleased to make the following Order, namely:
1. This Order may be called the Constitution (Scheduled Tribes) Order, 1950.
2. The tribes or tribal communities, or parts of or groups within, tribes of tribal communities, specified in Parts 1 to XVI of the Scheduled to this Order shall, in relation to the States to which those parts respectively relate, be deemed to be Scheduled Tribes so far as regards member thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule.
Any reference in this Order to State or to a district or other territorial division thereof shall be construed as a reference to the State, district or other territorial division as constituted on the 1st day of May, 1976.
3
THE SCHEDULE
*** ***
"PART IIIBIHAR
1. Asur [Agaria] 17. Kharwar
2. Baiga 18. Khond
3. Bhanjara 19. Kisan, [Nagesia]
4. Bathudi 20. Kora, Mudikora
5. Bedia 21. Korwa
6. Bhumij (In North Chotanagpur and 22. Lohara, Lohra
South Chotanagpur divisions and 23. Mahli
Santhal Parganas districts) 24. MalPaharia, Kumarbhag
7. Binjhia Paharia
8. Birhor 25.
Munda, Patar
9. Birjia 26. Oraon, [Dhangar (Oraon)]
10. Chero 27. Parhaiya
11. Chik Baraik 28. Santhal
12. Gond 29. Sauria Paharia
13. Gorait 30. Savar
14. Ho 31. Karwar
15. Karmali 32. Kol
16. Kharia, [Dhelki Kharia, Dudh Kharia, 33. Thare] Hill Kharia] *** *** *** "
(Emphasis supplied)
5. Synchronizing the aforesaid, i.e. the notification issued by the President of India to be read with Article 366(25) of the Constitution of India to be read with Sub-Section 2 of Section 2 of the Hindu Marriage Act, 1955, it appears that Mundas are Scheduled Tribes and Hindu Marriage Act, 1955 is not applicable either to them or to their marriages, much less for dissolution of the same, and hence, no error has been committed by the Principal Judge, Family Court, Ranchi in dismissing the Matrimonial Title Suit No. 246 of 2007 vide Order dated 26th August, 2008 as not maintainable.
6. It has been held by the Hon'ble Supreme Court in the case of Surajmani Stella Kujur v. Durga Charan Hansdah reported in AIR 2001 SC 939 in paragraph no.6 as under:
"6. In this appeal the parties are admittedly tribals, the appellant being a Oraon and the respondent a Santhal. In the absence of a notification or order under Article 342 of the Constitution they are deemed to be Hindus. Even if a notification is issued under the Constitution, the Act can be applied to Scheduled Tribes as well by a furgther notification in terms of subsection(2) of Section 2 of the Act. It is not disputed before us that in the Constitution (Scheduled Tribes) Order, 1950 as amended by Scheduled Castes and Scheduled Tribes Order (Amendment Acts) 63 of 1956. 108 of 1076. 18 of 1987 and 15 of 1990, both the tribes to which the parties belong are specified in Part XII. It is conceded even by the appellant that "the parties to the petition are two Tribals. Who otherwise profess Hinduism, but their marriage being out of the purview of Hindu Marriage Act, 1955 in 4 light of Section 2(2) of the Act, are thus governed only by their Santal Customs and usage." "
(Emphasis supplied) In view of the aforesaid decision also marriage of the parties to this First Appeal is not governed by the Hindu Marriage Act, 1955 looking to Subsection 2 to Section 2 thereof, to be read with the aforesaid provisions of the Constitution and the declaration made by the President.
7. Hence, there is no substance in this First Appeal, which is, hereby, dismissed.
(D.N.Patel, J.) (Ratnaker Bhengra, J.) s.m.