Member of notified scheduled tribe, converted to Hinduism, is not barred from invoking provisions of Hindu Marriage Act, especially when spouse is non-tribal Hindu

The husband is a non-tribal Hindu, while the wife is a tribal Hindu. Their marriage was performed under the Hindu Marriage Act, 1955. Section 5 of the Act states that marriages under the Act can be solemnized only between two Hindus. In such a case, the Petitioner can certainly contend, subject to proof, that she is a Hindu, following Hindu practices and beliefs and would be entitled to the benefits and remedies available under the Act.

Another facet of this case is that the petitioner cannot divorce her husband according to the customs of the tribe to which she belongs, as the husband is not tribal. Simultaneously, if she is not permitted to divorce the husband under the Act on the ground that subsection (2) of Section 2 of the Act bars her from initiating any proceedings under the said Act, the Petitioner would have no remedy.

The provisions of Section 2(2) of the Act would have to be interpreted to mean that any member of a notified tribe can refuse to participate in any proceeding under the Act of 1955 on the ground that he/she is a member of a notified tribe and is following tribal customs and is not bound by or following Hindu customs. However, the same cannot bar a member of a notified scheduled tribe who is converted to Hinduism from invoking the provisions of the Act of 1955, especially when the spouse is a non-tribal Hindu.

Accordingly, the petitioner would be entitled to move an application for dissolution of marriage, under the Hindu Marriage Act, 1955, before the appropriate Civil/ Family Court having jurisdiction.

Appearing Counsels - N.H.Akbar , Asst. Solicitor General of India, GP for Social Welfare