Case Note & Summary
The appellant, Narayana Naik, and the respondent, Smt. Leelavathi N., belong to the Marathi Community, which is a Scheduled Tribe. Their marriage was performed on 07.05.2001 at Puttur. Subsequently, marital discord arose, and the appellant filed M.C. No. 25/2003 before the Principal Civil Judge (Senior Division), Puttur, seeking dissolution of marriage under Section 13(1)(ib) of the Hindu Marriage Act, 1955. The respondent contested the petition, inter alia, on the ground that Section 2(2) of the Hindu Marriage Act bars its application to persons belonging to Scheduled Tribes. The appellant then filed O.S. No. 20/2006 seeking a declaration that the marriage was null and void. The Trial Court dismissed the suit. The appellant appealed in R.A. No. 23/2007 before the Principal Senior Civil Judge and A.C.J.M., Puttur, who set aside the Trial Court's order and remanded the matter for fresh disposal. The appellant filed the present Miscellaneous Second Appeal under Order 43 Rule 1(u) of the CPC against the remand order. The High Court framed the issue of whether the remand order was sustainable without deciding the applicability of the Hindu Marriage Act to the parties. The Court noted that Section 2(2) of the Act provides that the Act applies to all Hindus, including members of Scheduled Tribes, unless it is proved that the custom or usage governing them excludes such application. The burden of proof lies on the party claiming exclusion. The First Appellate Court had not decided this jurisdictional issue before ordering remand. The High Court held that the remand order was unsustainable and set it aside, directing the First Appellate Court to first decide the issue of applicability of the Act and then proceed in accordance with law.
Headnote
A) Family Law - Applicability of Hindu Marriage Act to Scheduled Tribes - Section 2(2) of Hindu Marriage Act, 1955 - The Act applies to all Hindus including members of Scheduled Tribes unless it is proved that the custom or usage governing them excludes such application. The burden of proof lies on the party claiming exclusion. The Appellate Court erred in remanding the matter without deciding this jurisdictional issue. (Paras 1-6) B) Civil Procedure - Remand Order - Order 41 Rule 23 CPC - Remand without deciding a preliminary jurisdictional issue is improper. The Appellate Court must first determine whether the Act applies before ordering a remand. (Paras 5-6)
Issue of Consideration
Whether the order of the First Appellate Court remanding the matter to the Trial Court without deciding the issue of applicability of the Hindu Marriage Act, 1955 to the parties belonging to Scheduled Tribes is sustainable in law.
Final Decision
The High Court allowed the appeal, set aside the remand order dated 30.07.2012 passed in R.A. No. 23/2007, and directed the First Appellate Court to first decide the issue of applicability of the Hindu Marriage Act, 1955 to the parties and then proceed in accordance with law.
Law Points
- Hindu Marriage Act
- 1955 applies to Scheduled Tribes unless custom to the contrary is proved
- Section 2(2) of Hindu Marriage Act
- 1955
- burden of proof on party claiming exclusion
- remand order without jurisdictional finding is unsustainable
