Dismissed

Motai Bandra Alias Ganesh Bandra v. Smt Madhuri Bandra Alias Madhuri Sadad

Jharkhand HC2 Nov 2022FA/20/2019

Case brief

AI extract

What is this about?

In this appeal from a Family Court dismissal, the High Court upheld the trial court's decision that a restitution of conjugal rights suit was not maintainable under the Hindu Marriage Act. Relying on Supreme Court precedent, the Court held that the Act does not apply to Scheduled Tribes absent a Central Government notification. The dismissal was affirmed.

What did the court decide?

The First Appeal was dismissed with no order for costs. Appellant advised to seek remedy under Special Marriage Act.

Motai Bandra Alias Ganesh Bandra Vs Smt Madhuri… — Matrimonial and Divorce | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Appellate Jurisdiction)

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FA No. 20 of 2019

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Motai Bandra @ Ganesh Bandra, son of Shri Jambira Bandra, present address Teacher's Colony, Kendriya Vidyalaya, Tatanagar, Qr. No. Old Type 3/2, Near Railway Station, P.S. Bagbera, PO- Khasmahal, Jamshedpur, District- Singhbhum East, permanent address Vilalge- Tanto (Chaibasa), PO Ghagri PS Muffasil District West Singhbhum. … …. Appellant

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Versus

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Smt. Madhuri Bandra @ Madhuri Samad, wife of Motai Bandra, daughter of Mango Samad, present and permanent resident of village Bankasai, PO Icha, PS Rajnagar, District-West Singhbhum … …. Respondent

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-------

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CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant(s) : Mr. Jitendra Nath Upadhyay, Advocate For the Respondent : Mr. Gautam Kumar, Advocate

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------ O R D E R

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2^nd November 2022

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Per, Shree Chandrashekhar,J.

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Motai Bandra @ Ganesh Bandra filed an application under section 9 of the Hindu Marriage Act, 1955 seeking restitution of his conjugal rights with Smt. Madhuri Bandra @ Madhuri Samad with whom his marriage was solemnized on 18^th April 2011. According to him, his marriage was solemnized as per Hindu rites and customs at village- Bankasai, POIcha, PS- Rajnagar, District- West Singhbhum.

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The respondent in her written statement filed before the Family Court stated that both parties are Scheduled Tribe belonging to ‘HO’ caste and their marriage was solemnized as per ‘HO’ customary law and, as such, petition under section 9 of the Hindu Marriage Act, 1955 was not maintainable.

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The aforesaid petition under section 9 of the Hindu Marriage Act, 1955 which was registered as Original Suit No. 528 of 2015 (in short, “restitution suit”) has been dismissed by the judgment dated 25^th July 2018, on the ground that in view of the Section 2(2) of the Hindu Marriage Act,

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2 FA No. 20 of 2019

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1955 which was elucidated by the Hon'ble Supreme Court in “ Surajmani Stella Kujur (Dr) v. Durga Charan Hansdah” (2001) 3 SCC 13 , the restitution suit was not maintainable.

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The Principal Judge, Family Court, East Singhbhum at Jamshedpur has held as under:

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“8. Heard and perused the record. Admittedly both the sides herein, are Tribals and their marriage was solemnized in accordance with Sarna customs. As per settled law, the Hon'ble Jharkhand High Court has, vide judgment dated 20.08.2015, in F.A. no. 186/2008, in the case of Rajendra Singh Munda Vs. Mamta Devi, by referring to the judgment of the Hon'ble Supreme Court in the case of Dr. Surajmani Stella Kujur Vs. Durga Chandra Hansda, reported in AIR 2001 SC 939 has held that, as the parties therein were members of Tribal Community, therefore, looking to section 2(2) of the Hindu Marriage Act, 1955 the said Act was not applicable upon the parties, therein. Section 2(2) of the Hindu Marriage Act, 1955 provides that, "Notwithstanding anything contained in Sub-section (1), nothing contained in this act shall apply to the member 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”. 9. On the basis of above discussions, I conclude that, in the instant case, Hindu Marriage Act is not applicable upon the parties herein. As such, this suit is not maintainable and accordingly, it is dismissed as not maintainable.”

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In course of hearing, the learned counsel for the appellant tried to persuade this Court as regards maintainability of restitution suit on the ground that Smt. Madhuri Bandra @ Madhuri Samad has filed an application under section 125 of the Code of Criminal Procedure in which the appellant has been directed to pay maintenance to the tune of Rs. 15,000/- per month.

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The learned counsel for the appellant has further drawn our attention to the judgment passed by this Court in “Baga Tirkey v. Pinki Linda & another” [FA No.124 of 2018] , wherein this Court has observed as under:

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“27. Therefore, on a detailed consideration of the submissions of learned counsel for the parties and valuable assistance rendered by the learned Amicus Curiae, we are of the considered opinion that the learned Family Court committed an error of jurisdiction in holding that the suit instituted by the petitioner/appellant herein was not maintainable, as there was no codified substantive law applicable to the parties to marriage, like Hindu Marriage Act, 1955, Special Marriage Act, 1954 and Divorce Act, 1869. It also committed an error in holding that the petitioner is seeking relief of divorce on the basis of customs and usage, applicable to the parties, which can be exercised only by the Community Panchayat and not by Court of Law. The legislature having consciously conferred jurisdiction upon the Family Court to adjudicate on matters, enumerating under Clauses-(a) to (g) of the Explanation to Section 7(1) including a suit or proceeding between the parties to the marriage for decree of nullity of marriage or restitution of conjugal rights or judicial separation or dissolution of marriage, the learned Family Court could not have held the suit to be not

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3 FA No. 20 of 2019

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maintainable, as there is absence of a substantive codified law, governing the parties.”

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Without going into the observations made by this Court in “Baga Tirkey” , we intend to refer to section 22 of the Special Marriage Act, 1954 which contains provision for restitution of conjugal rights. There are specific provisions under the Special Marriage Act, 1954 which deal with judicial separation, void marriages, voidable marriages and divorce. Apparently, the appellant had an opportunity to amend the petition of Original Suit No. 528 of 2015 and to seek relief for restitution of conjugal rights under section 22 of the Special Marriage Act, 1954 but the said opportunity was not availed of by the appellant and, resultantly, he suffered the judgment of dismissal of the restitution suit.

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Sub-section (2) to section 2 of the Hindu Marriage Act, 1955 reads as under:

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“2. Application of Act.- (1) This Act applies-

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(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.”

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9. In “ Surajmani Stella Kujur (Dr)” which is a case originating

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from Jharkhand, the Hon'ble Supreme Court has observed as under:

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“6. In this appeal the parties are admittedly tribals, the appellant being an 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 further notification in terms of sub-section (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 1976, 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 the Hindu Marriage Act, 1955 in light of Section 2(2) of the Act, are thus governed only by their Santhal customs and usage”.”

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In view of the judgment in “ Surajmani Stella Kujur (Dr)” passed by the Hon'ble Supreme Court, we find no error in the judgment dated 25^th July 2018 in Original Suit No. 528 of 2015 passed by the Family Court, East Singhbhum, at Jamshedpur and, accordingly, First Appeal No. 20 of

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4 FA No. 20 of 2019

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2019 is dismissed.

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However, we may indicate that the appellant may work out his future remedy as available to him under the law.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 2^nd November, 2022 SB/Nibha-NAFR

Motai Bandra Alias Ganesh Bandra v. Smt Madhuri Bandra Alias Madhuri Sadad

Case brief

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Motai Bandra Alias Ganesh Bandra v. Smt Madhuri Bandra Alias Madhuri Sadad

Case brief

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