Section 2(2) of the Hindu Marriage Act, 1955, states as under:
“(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribes within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.”
Therefore, the Hindu Marriage Act contains a specific provision laying down that this Act is not applicable to members of any Scheduled Tribe. However, power has been given to the Central Government to issue a notification in the official gazette for making the provisions of this Act applicable also to the members of Scheduled Tribes. In the absence of any such notification issued by the Central Government, by virtue of above Section 2(2), the provisions of the Hindu Marriage Act shall not be applicable to members of Scheduled Tribes (ST). I am not aware of any such notification having been issued by the Central Government. Therefore, it appears that the divorce petition of tribal people cannot be filed under the Hindu Marriage Act.
As an example of this, please read the judgment of Himachal Pradesh high court in the case of Ms. Sushma alias Sunita Devi vs. Shri Vivek Rai, [FAO (HMA) No. 229 of 2014, decided on 16 October 2014] [read the judgment].
Also see, the case of Sobha Hymavathi Devi v. Setti Gangadhara Swamy, (2005) 2 SCC 244 : AIR 2005 SC 800, in which the Supreme Court indirectly accepted the proposition that divorce was permissible as per the custom prevailing in the community in the facts of that case wherein both parties to the marriage were members of the same scheduled tribe.
In the case of Surajmani Stella Kujur (Dr) v. Durga Charan Hansdah, (2001) 3 SCC 13, a similar observation is seen pointing out that the provisions of the Hindu Marriage Act are not applicable to members of scheduled tribes, in the absence of a notification, and that a valid custom may govern the field.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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