Customs usage cannot impede the rights of citizens to approach the court of law for seeking divorce

Both parties approaching the Court belonged to the Oraon Tribal Community and their marriage was performed as per the customs of the said community. On the grounds of adultery, the husband wanted a divorce. The Family Court referred to the book “The Customary Laws of the Munda and the Oraon” and held that there is no substantive codified law, applicable to the parties like the Hindu Marriage Act, Special Marriage Act and Divorce Act. Therefore, they were not governed by the Hindu Marriage Act.

Oraon community is governed by the Customary Laws, there is a hierarchy of Panchayats in the community such as ‘Padha Panchayat’, where the parties approach in case of divorce/dissolution of marriage. If the matters remain unresolved, it can also be taken up to the body called ‘Bisusendra’, a congregation of ‘Padha Panchayat’. The parties are summoned by the Panchayat and after hearing both sides, a decision is taken. Non-adherence to the summons or its verdict leads to social ostracization, which is described as ‘Hucca Pani Bandh’, ‘Kutumb Chilan’ and ‘Chuna tika’. The chances of non-adherence to the summons of the Panchayat are rare.

The Family Courts Act of 1984 created a forum for adjudication of matrimonial matters of the nature enumerated in the explanation to Section 7 of the Act, which forum can be resorted to by one and all, be it a member of the scheduled tribe or a person of any religion.

There is no precedent that bars members of the Scheduled Tribe to approach the Family Court. If at all, such matter is filed, seeking adjudication under the law, applicable to them i.e. Customary Laws, they cannot resort to the provisions of Hindu Marriage Act, if the parties are not governed by that Act. Conferment of the jurisdiction (or in other words- establishment of courts) is essentially a legislative function. Even customs usage cannot impede the rights of a citizen to approach the court of law, i.e. a family court seeking a divorce. If at all a custom forbids access to family court and relegates a person seeking divorce to Panchayat/Community court, the same will be violative of right to access to justice and any sanctification of customs, resulting in violation of fundamental rights ought not to be resorted to.

Patent lack of jurisdiction and latent lack of jurisdiction are different concepts. Family Court has procedural jurisdiction to entertain a suit for dissolution of marriage and there was no patent lack of jurisdiction. It is submitted that the learned Family Court posed unto itself a wrong question and answered it incorrectly, thereby, committing a grave error of jurisdiction. ‘Adjudicatory Facts’ and ‘Jurisdictional Facts’ are different. the facts or facts upon which the jurisdiction of a Court, a Tribunal or an Authority depends can be said to be ‘Jurisdictional Fact’. If the ‘Jurisdictional Fact’ exists, a Court, Tribunal or Authority has jurisdiction to decide other issues. If such fact does not exist, a Court, Tribunal or Authority cannot act. It cannot wrongly assume the existence of a jurisdictional fact and proceed to decide a matter by erroneously assuming the existence of a jurisdictional fact, a subordinate Court or an inferior Tribunal cannot confer upon itself jurisdiction which it otherwise does not possess.

It was thus necessary for the Family Court to call upon the party, seeking divorce under the customary law, to plead and establish such custom by leading evidence. In any event, learned Family Court would not have dismissed the suit as not maintainable, since the parties belonged to Tribal Community and are governed by Customary Law, which is not a codified substantive law.

Appearing Counsel/s : Mr. Ashutosh Anand, M/s K.K. Singh, Mr. Sanjay Kumar, Mr. Alok Lal, Mr. Kumar Vaibhav & Mr. Subhashis Rashil Soren