No matter how hard it is to digest, there are things in our life which are inevitable. If we talk of one such issue that is bitterly painful, it is the tragic occurrence of divorce that engulfs married couples.
In a country where marriage is considered sacred and indispensable for men and women, divorce is considered a nightmare, the consequence of this idea will be that either both parties will be riddled with stigma for a long time to come or they will find a new life to start with.
Generally the law that governs Divorce for Hindu, Buddhist, Jains and Sikhs is the Hindu Marriage Act, 1955 and unlike these religions, other religious groups and communities too have their own set of rules that govern their personal laws. When we talk about the applicability of law of marriages and divorce to the Schedule Tribes, many important things comes up for consideration.
And now when we talk especially about the laws of marriages and divorces that govern the Scheduled Tribes like Bhutias, Lepchas, etc., living in Sikkim, we find them to be the most helpless – deprived and vulnerable like a warrior whose sword has rusted or a sprinter whose knees are fractured.
Position of Law
The Hindu Marriage Act which is a socially beneficial legislation was codified in the year 1955 to maintain marital relationship among the Hindus, Buddhists, Jains and Sikhs. This act extends to the whole of India except the State of Jammu and Kashmir, and applies to all Hindu, Buddhist, Jains, Sikhs and any other domiciled individuals living in territories of India except J&K and who is not Muslim, Christian, Parsi or Jew by religion.
The aforementioned law allows divorce either through mutual consent or without mutual consent of the parties.
The Hindu Marriage Act, 1955 has no application to the Scheduled Tribes, which means that this act in any case will not be applicable to the Scheduled Tribes like Bhutias, Lepchas etc., living in Sikkim. The relevant section is Section 2 (2) of the Hindu Marriage Act, 1955 is reproduced below.
…Nothing contained in this Act shall apply to the members of any Schedule Tribes within the meaning of clause (25) of Article 366 of the Constitution under the Central Government, by notification in the official Gazette, otherwise directs.
To further substantiate this, there are cantena of judgments which has held that a member of the Scheduled Tribe’s Petition under Section 13 of the Hindu Marriage Act, (Divorce Petition) will not be maintainable in view of the above provision under Section 2(2).
Issue under consideration.
The main issue that requires serious consideration is that if any individual belonging to the Scheduled Tribe communities is aggrieved with regard to his/her marriage then under which provision of law members of tribal communities can redress their grievances.
This issue requires wider acknowledgement as it involves the fate of many married couples belonging to tribal communities who are at the brink of their marital breakdown and want to live their post-divorce stage of life happily and peacefully.
The Solution to this issue is through an applicability of the customary law that governs the Tribal Communities of Sikkim like Bhutias, Lepchas, etc. The legislative intent while enacting the Hindu Marriage Act, the parliamentarians were very precise to define the word “custom and usage” u/s. 3(a) of the Act.
“the expression ‘custom’ and ‘usage’ and rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family.”
So, to further substantiate this, Supreme Court in its judgment delivered in 1963, Mirza Raja Pushpavati Vijayaram Gajapathi Raj & ors. V. Sri Pushavathi Visweswar Gajapathiraj Rajkumar of Vizianagram & Ors. MANU/SC/0247/1963 while upholding the decision of the Privy council in Ramlingam Ammal’s case has accepted the principal to establish a custom upon which a party relies. The Court held (emphasis supplied)
“it is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.”
The importance of the custom has been further acknowledged by the legislature by incorporating Section 29 of the Hindu Marriage Act, 1955.
Section 29 of Hindu Marriage Act, 1955 (simple word) if any rights are recognized by any custom or if any rights are conferred by any special enactment to obtain the dissolution of a Hindu marriage then the Hindu Marriage Act shall not affect any rights recognized by the custom and special enactment.
Customary Law on Right to Divorce with regard to Scheduled Tribes like Bhutias, Lepchas, etc.
Members belonging to the above tribes are deeply aggrieved by the non application of law i.e Hindu Marriage Act that governs divorce, so the only option left for the member of the Scheduled Tribe is to follow the customary practice of divorce which is a recognized method of separation without involving the court if such custom is recognized.
The Supreme Court judgement in Yamanaji H. Jadhav Vs. Nirmala MANU/SC/0073/2002 has held that Divorce Deed executed before the Sub-Registrar office will be valid only if the parties contends the existence/prevalance of the Customary divorce in the community to which the parties belong and therefore, it has to be substantiated by the evidence on record. If the custom is against the law of the land and is further left unproved before the civil court than this will be a practice opposed to public policy.
So if I put it in simple words, it if any party who challenges a Divorce Deed before the civil court, that party has to come up with material evidence to show the prevalence of any customary divorce in the community to which the parties belong to.
As of now with very limited publication it is very difficult to ascertain as to which customary laws in Sikkim will govern the Scheduled Tribes like Bhutia, Lepcha, etc. One unknown publication uploaded by a website Soudhganga has mentioned a title Report of Customary Laws of Bhutia, but the author could not verify its authenticity.
What we can all vouch for is that this parallel legal system based on customary law needs to be fixed at the earliest to fade away the confusion that is prevailing in the minds of the Tribal Communities.
By Pramit Chettri. The author is an Advocate who hails from Malbassey, Budang village under Soreng Sub-Division, West Sikkim and is currently practicing law before the Supreme Court of India and Delhi High Court. He can be contacted via his email id email@example.com.
The views expressed in this article are intended for the sole purpose of generating a public debate and eliciting public response.