Allowed

Shri Honnappa S/O Guddappa Karakappanavar v. Smt Sarojini W/O Honnappa Karakappanavar

Karnataka HC8 Sept 2023MFA/102866/2022

Case brief

AI extract

What is this about?

This Marriage First Appeal concerned the maintainability of a divorce petition filed by a husband belonging to the Scheduled Tribes against his wife. The Family Court dismissed the petition holding Section 2(2) of the Hindu Marriage Act inapplicable due to their ST status. The High Court allowed the appeal, ruling that since the parties had Hinduised through their customs and conduct, the Act appl

What did the court decide?

The appeal was allowed and the impugned order of the Family Court was set aside. The matter was remitted to the Family Court for reconsideration afresh.

Shri Honnappa S/O Guddappa Karakappanavar Vs Smt… — Matrimonial and Divorce | Karnataka HC (2023)

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1 - NC: 2023:KHC-D:10267-DB MFA No. 102866 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF SEPTEMBER, 2023

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PRESENT

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THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA MISCELLANEOUS FIRST APPEAL NO. 102866 OF 2022 (FC)

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BETWEEN:

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SHRI HONNAPPA S/O. GUDDAPPA KARAKAPPANAVAR, AGE: 56 YEARS, OCC: GOVT. SEVANT, R/O: BASAPUR, HAVERI TQ. AND DIST., NOW WORIKING AT, PRIMARY SCHOOL, KURAGUNDA, HAVERI TQ. AND DIST.-581110.

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…APPELLANT

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(BY SRI PRAKASH R. BADIGER AND SRI. M.R. HIREMATHAD, ADVOCATES)

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AND:

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ROHAN HADIMANI T

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Digitally signed by ROHAN HADIMANI T Date: 2023.09.14 10:33:17 +0530

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SMT. SAROJINI W/O. HONNAPPA KARAKAPPANAVAR, AGE: 47 YEARS, OCCUPATION: HOUSE HOLD, R/O: BASAPUR, HAVERI TQ. AND DIST., NOW AT BICHAVALLI, HANGAL TQ, HAVERI DIST-581104. …RESPONDENT (BY SRI N.R. KUPPELUR, ADVOCATE)

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THIS MISCELLANEOUS FIRST APPEAL FILED UNDER SECTION 19(1) OF FAMILY COURT ACT, PRAYING TO SET ASIDE THE ORDER PASSED BY THE FAMILY COURT HAVERI, DATED 23.08.2022 IN M.C.NO. 61/2022 AND ALLOW THE PETITION OF THE PETITIONER/APPELLANT IN THE INTEREST OF JUSTICE AND EQUITY AND ALLOW THE APPEAL AND GRANT DIVORCE/DISSOLUTION OF MARRIAGE WITH RESPONDENT ON 14.12.2015 AT SRI. MAILARLINGESHWAR TEMPLE, MAILAR OF HUVINHADAGALI TQ/DIST. BALLARI.

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NC: 2023:KHC-D:10267-DB MFA No. 102866 of 2022

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, S.R. KRISHNA KUMAR, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is directed against the impugned order dated 23.08.2022 passed in MC.No.61/2022 by the Family Court, Haveri, whereby the said petition filed by the appellant/husband against the respondent/wife seeking dissolution of marriage solemnized between them on 14.12.2015 by a decree of divorce on the ground of cruelty under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 (for short, ‘the HM Act’) was dismissed by the Family Court as not maintainable.

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2. The material on record discloses that the appellant filed the aforesaid petition seeking dissolution of his marriage with respondent, which was said to have been solemnized on 14.12.2015 on the ground that she had treated him with cruelty as contemplated under Section 13(1)(i-a) of the HM Act. It is an undisputed fact that both appellant and respondent belong to Scheduled Tribes within the meaning of Article 366 Clause 25 read with Article 342 of the Constitution of India. The respondent contested the petition inter alia denying the various contentions and claims of the appellant on merits and also

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NC: 2023:KHC-D:10267-DB MFA No. 102866 of 2022

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contended that the petition was not maintainable since the parties belong to the Scheduled Tribes and in the light of Section 2(2) of HM Act, the same was not applicable and the petition was liable to be dismissed.

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3. After hearing the parties, the Family Court came to the conclusion that in the light of Section 2(2) of the HM Act read with Article 366(25) of the Constitution of India, the said Hindu Marriage Act of 1955 was not applicable to the parties, who belonged to Scheduled Tribes and consequently, the petition was not maintainable and accordingly, dismissed by the Family Court. Aggrieved by the impugned order, the appellant is before this Court by way of present appeal.

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4. A perusal of the impugned order will indicate that the Family Court has dismissed the petition placing reliance upon Section 2(2) of the HM Act, which provides that the Act is not applicable to the parties to the marriage belonged to the Scheduled Tribes within the meaning of Section 2(2) of the HM Act Article 366 (25) of the Constitution of India. In the instant case, it is the specific contention of the appellant that THOUGH they originally belong to Scheduled Tribes, the marriage between himself and the respondent was solemnized according

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- 4 - NC: 2023:KHC-D:10267-DB MFA No. 102866 of 2022

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to Hindu customs, rites and traditions and that the parties were Hinduized by their day-to-day conduct and that they are following Hindu traditions. This specific assertion on the part of the appellant has also not been disputed by the respondent and she has also categorically admitted the same in her affidavit inlieu of examination in-chief in Crl.Misc.57/2020 filed under Section 125 of Cr.P.C. on the file of learned Principal Senior Civil Judge and JMFC, Hangal. The other material on record produced by the parties also clearly establishes their marriage was solemnized according to Hindu rites, customs and traditions and that they had been hinduised by virtue and on account of their conduct.

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5. The Hon’ble Apex Court in the case of Labishwar

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Manjhi Vs. Pran Manjhi & Others¹ at paragraph-3 to 6 held as under:

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3. The short facts are that the father of Respondents 2 and 3 and husband of Respondent 1 filed a suit against the appellant for declaration that they being agnates of the deceased husband, inherited the property according to the custom of the Santhal Tribe where females are excluded from the right of succession. He further challenged the gift made by the widow of the deceased Lakhiram, namely, by Appellant 1 to Appellants 2 and 3. The trial court dismissed the suit by holding that parties have become sufficiently Hinduised and as such the Hindu law of succession would apply and thus the widow will inherit the property of the deceased, consequently

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1 (2000) 9 SCC 587

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NC: 2023:KHC-D:10267-DB MFA No. 102866 of 2022

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the gift made by her to Appellants 2 and 3 is also valid. The appeal filed by the plaintiff-respondent was allowed. In second appeal the High Court remanded the case back to the first appellate court for recording the finding whether the parties were sufficiently Hinduised after setting aside the first appellate court's judgment.

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4. After remand the first appellate court held that parties were sufficiently Hinduised and the Hindu law of succession would be applicable and confirmed the judgment of the trial court.

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5. The respondent filed second appeal before the High Court challenging the said finding contending that the courts below had committed error in recording the finding that the Hindu Succession Act will apply. However, the High Court allowed the appeal of the respondent by holding that Hindu law as it stood prior to enactment of the Hindu Succession Act, 1955 would apply, hence Appellant 1 inherited the property during her lifetime and on her death it would devolve to the agnates of her husband viz. contesting Respondent 1. Challenging the said finding, the submission on behalf of the appellant is that the High Court committed error in concluding that the parties would be governed by the law as prevailed prior to coming into force of the Hindu Succession Act, 1956. The submission is, once finding is recorded by the first appellate court and confirmed by the High Court that the parties are Hinduised then they would be governed by the law as is applicable to any Hindu and if that be so the Hindu Succession Act, 1956 would be applicable to the parties. Challenging this submission learned counsel for the respondent submits that the parties being tribals by virtue of sub-section (2) of Section 2, the Hindu Succession Act, 1956 would not be applicable. It excludes the members of any Schedule Tribes from application of the said Act to them. Based on this, submission is, even if the parties have Hinduised, the parties being of the Santhal Tribe they are following their customary law of Santhal, hence the Hindu Succession Act would not be applied. Reliance was placed on the decision of the Patna High Court, reported in Satish Chandra Brahama v. Bagram Brahma [(1967) 15 Bihar LJ 323] . This decision dealt with the case of Scheduled Tribes, namely, Uraon. The Court held that the Uraon Tribe is a Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution of India and by virtue of sub-section (2) of Section 2 of the Hindu Succession Act the provision of that Act will not apply to this tribe, consequently Section 14 would also not apply. The said decision further records, the Uraon can change their religion but by changing of the religion alone they do not cease to be Uraon for other purposes. The Court has to base its findings on various other factors such as

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religious functions, marriages, disposal of the dead bodies by cremation or by burying the dead body etc. which have to be tested before such changing.

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6. The question which arises in the present case is, whether the parties who admittedly belong to the Santhal Tribe are still continuing with their customary tradition or have they after being Hinduised changed their customs to that which is followed by the Hindus. It is in this context when the matter came first before the High Court, the High Court remanded the case for decision in this regard. After remand the first appellate court recorded the finding that most of the names of the families of the parties are Hindu names. Even PW 1 admits in the cross-examination that they perform the pindas at the time of death of any body. Females do not use vermilion on the forehead after the death of their husbands, widows do not wear ornaments. Even PW 2 admits that they perform shradh ceremonies for 10 days after the death and after marriage females used vermilion on their foreheads. The finding of the words is that they are following the customs of the Hindus and not the Santhal customs. In view of such a clear finding it is not possible to hold that sub-section (2) of Section 2 of the Hindu Succession Act excludes the present parties from the application of the said Act. Sub-section (2) only excludes members of any Scheduled Tribe admittedly as per finding recorded in the present case though the parties originally belong to the Santhal Scheduled Tribes they are Hinduised and they are following the Hindu traditions. Hence we have no hesitation to hold that sub-section (2) will not apply to exclude the parties from application of the Hindu Succession Act. The High Court fell into error in recording a finding to the contrary. In view of this, the widow of Lakhiram would become the absolute owner by virtue of Section 14 of the said Act, consequently the gift given by her to Appellants 2 and 3 was a valid gift, hence the suit of Respondent 1 for setting aside the gift deed and inheritance stands dismissed.

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6. As can be seen from the aforesaid judgment, the Hon’ble Apex Court has categorically held that merely because

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a person who was originally belonging to ST, his/her subsequent conduct in becoming hinduised would make the provisions of the HM Act become applicable to him/her on account of him/her becoming Hinduised, as a result of which,

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NC: 2023:KHC-D:10267-DB MFA No. 102866 of 2022

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the parties would not be excluded from the applicability/operation of the HM Act by virtue of Section 2(2) of the HM Act read with Article 366(25) of the Constitution of India. In the instant case, the pleadings and evidence of the parties clearly establish that though they originally belonged to ST (Valmiki), but their marriage was solemnized and performed in accordance with Hindu rites, customs and traditions. The appellant discloses that they were living as Hindus and they have been Hinduised as established by the material on record. It is therefore clear that the Family Court committed an error in holding that the HM Act was not applicable to the parties by without proper appreciation of the material on record warranting interference by this Court in the present appeal. Accordingly, we deem it just and appropriate to set-aside the impugned order passed by the Family Court and remit the matter back to the Family Court for reconsideration afresh in accordance with law by holding that the petition was maintainable before the Family Court.

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7. In the result, we proceed to pass the following:

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ORDER

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a) The appeal stands allowed .

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NC: 2023:KHC-D:10267-DB MFA No. 102866 of 2022

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b) The impugned order dated 23.08.2022 passed by the Family Court in MC No.61/2022 is hereby set-aside.

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c) The matter is remitted back to the Family Court for reconsideration afresh in accordance with law by holding that the petition filed by the appellant under Section 13(1)(i-a) of the HM Act was maintainable in law.

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d) All rival contentions between the parties except issue/question with regard to maintainability of the petition qua HM Act which stands concluded in favour of the appellant are kept open and no opinion is expressed on the same.

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e) Liberty is reserved in favour fo the parties to adduce additional evidence in support of their respective claims.

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f) Parties to appear before the Family Court on 09.10.2023 without expecting further notice from the Family Court.

Sd/JUDGE

Sd/JUDGE

CKK/JTR

LIST NO.: 1 SL NO.: 48

Shri Honnappa S/O Guddappa Karakappanavar v. Smt Sarojini W/O Honnappa Karakappanavar

Case brief

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Shri Honnappa S/O Guddappa Karakappanavar v. Smt Sarojini W/O Honnappa Karakappanavar

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