HC: Members of Meena community to be considered Hindu for the purpose of divorce under the Hindu Marriage Act

  

On 7^th July,  a bench of Delhi High Court consisting of Justice Pratibha M. Singh allowed and appeal while directing the trial court to proceed with the adjudication of a divorce under section 13-1(ia) of the Hindu Marriage Act, 1955. The court while giving the decision relied on Art. 44 of the Constitution which promotes Uniform Civil Code.

The court has also reiterated various decisions of the Supreme Court in stating that the time has come for enacting a uniform code of marriage and divorce and urged for a ‘complete reform’.

Facts of the case:

The present petition was filed seeking answers as to whether The Hindu Marriage Act, 1955 is applicable to persons belonging to the Meena community in view of the exclusion under Section 2(2) of the HMA, 1955. The question arose out of a petition seeking divorce under Section 13-1(ia) of the HMA, 1955 between two persons belonging to the Meena Community. The maintainability of the petition was questioned as per section 2(2) of the Hindu Marriage Act. The divorce petition under Section 13-1(ia) of the HMA was dismissed by the trial court on the basis of the exclusion in Section 2(2) of the HMA, 1955. Thus, an appeal was preffered.

Contention of the petitioner:

 

The learned counsel for the petitioner contended the following:

1. It was submitted that the Respondent had admitted in various pleadings that the marriage was solemnized as per Hindu rites and customs therefore the provisions of HMA, 1955 would be fully applicable to the facts of the case and hence the divorce petition under the provisions of the HMA, 1955 ought to be maintainable.
2. It was urged that once a Scheduled Tribe follows the customs and practices of the particular religion.
3. It was further contended that it is held that the Scheduled Tribe of Meena would not be governed by the HMA,1955 it would lead to enormous difficulties for women as bigamy would be recognised and could even lead to desertion of women.
4. It was also submitted that all the documents of marriage would show that the marriage of the parties took place as per Hindu reeti riwaz through the Saptpadi and in front of the fire. Thus, the parties completely adhered to the Hindu way of conducting a marriage, customs and rites. Therefore, the HMA, 1955 would applicable to them

Contention of the respondent:

Mr. Gupta, ld. Counsel appearing for the Respondent on the other hand, submitted the following:

 

1. At the outset it was submitted that Hinduism is not considered to be a religion but only a way of life. Though, the parties follow the customary principles and rites of Hinduism, the status of a tribe of the Meena community cannot be taken away.
2. It was also urged that due to the Meena tribe being a Scheduled Tribe in the State of Rajasthan, it’s right to constitutional protection would be excluded if the provisions of the HMA, 1955 are held to be applicable.
3. On the question of methods of obtaining divorce in the meena community, the counsel submitted that it is to be done through a Panchayat and there is a Board for the said purpose.
4. It was further submitted that since there is a child in the present case, the Scheduled Tribe status of the child cannot also be taken away.

Observation and Judgement of court:

The Hon’ble bench of the court observed the following:

1. The trial court had not conducted the trial in the petition or considered the evidence in the matter, but summarily dismissed the petition simply on the ground that since the parties belong to the Meena Community, the provisions of the HMA, 1955 would not be applicable.
2. The exclusion under Section 2(2) of the HSA, 1956 would not apply to the parties as per the decision of the Supreme Court where it held that though the parties belonged to the Santhal tribe, they followed the customs of Hindus and not of the Santhal tribe hence they were considered as Hindus.
3. The evidence on record cleary admitted to the facts that that the marriage was conducted as per the “Hindu Riti Riwaz” and effected by following the “Saptapadi” in front of `Agni’ – fire. Thus all the Hindu customs were followed.
4. The court also realised that Supreme Court had expressed hope and observed that the time has come for enacting a uniform code of marriage and divorce and urged for a ‘complete reform’.

In the light of the above, the impugned judgment was set aside and the appeal was allowed. 

 

The trial court was further directed to proceed with the adjudication of the petition under 13-1(ia) of the HMA, 1955 on merits and render a decision within six months.

Read Judgment ;

 

SOURCE ;  .latestlaws.com

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