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 Bhuvanendra Kala Mandira, Puttur, as per their customs. 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, raising several grounds, including 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 restitution of conjugal rights, which was dismissed for default on 04.01.2007 by the Principal Civil Judge (Jr.Dn.), Puttur. The respondent filed an appeal, R.A.No.23/2007, before the Principal Senior Civil Judge and A.C.J.M., Puttur, who on 30.07.2012 set aside the trial court's order and remanded the matter to the trial court with a direction to re-admit the suit and dispose it in accordance with law. Aggrieved, the appellant filed this Miscellaneous Second Appeal under Order 43 Rule 1(u) of the CPC. The core legal issue was whether the First Appellate Court's remand order was sustainable without first deciding the jurisdictional issue regarding the applicability of the Hindu Marriage Act to the parties, who are Scheduled Tribes. The appellant argued that the remand order was improper as the appellate court did not address the jurisdictional question. The respondent contended that the Hindu Marriage Act does not apply to them due to Section 2(2). The High Court analyzed that Section 2(2) of the Hindu Marriage Act, 1955, provides that the Act does not apply to members of Scheduled Tribes unless the Central Government by notification otherwise directs, or unless custom to the contrary is proved. The court noted that the respondent had raised this jurisdictional issue in the trial court, but the trial court dismissed the suit for default without deciding it. The First Appellate Court, while setting aside the dismissal order and remanding the matter, failed to consider this jurisdictional fact. The High Court held that the appellate court should have first decided whether the Hindu Marriage Act applies to the parties, as it is a jurisdictional fact that goes to the root of the matter. Without such a finding, the remand order was unsustainable. Consequently, the High Court allowed the appeal, set aside the impugned order dated 30.07.2012, and remitted the matter back to the First Appellate Court for fresh disposal in accordance with law, with a direction to decide the jurisdictional issue regarding the applicability of the Hindu Marriage Act, 1955, to the parties.
Headnote
A) Family Law - Hindu Marriage Act - Applicability to Scheduled Tribes - Section 2(2) of the Hindu Marriage Act, 1955 - The court considered whether the Hindu Marriage Act applies to parties belonging to Scheduled Tribes. The respondent contended that Section 2(2) bars application of the Act to Scheduled Tribes unless custom is proved. The appellant argued that the Act applies as they are Hindus. The High Court held that the jurisdictional issue regarding applicability of the Act must be decided first before proceeding with the merits of the case. The remand order without deciding this issue was set aside. (Paras 1-6) B) Civil Procedure - Remand Order - Jurisdictional Issue - Order 43 Rule 1(u) of CPC - The court examined the validity of the remand order passed by the First Appellate Court. The trial court had dismissed the suit for default, and the appellate court set aside that order and remanded the matter without addressing the jurisdictional issue raised by the respondent. The High Court held that the appellate court should have first decided whether the Hindu Marriage Act applies to the parties, as it is a jurisdictional fact. The remand order was set aside and the matter was remitted back to the First Appellate Court for fresh disposal. (Paras 1-6)
Issue of Consideration
Whether the order of the First Appellate Court setting aside the trial court's order and remanding the matter without deciding the jurisdictional issue regarding applicability of the Hindu Marriage Act, 1955 to the parties belonging to Scheduled Tribes is sustainable in law.
Final Decision
Appeal allowed. The impugned order dated 30.07.2012 passed in R.A.No.23/2007 by the Principal Senior Civil Judge and A.C.J.M., Puttur, D.K., is set aside. The matter is remitted back to the First Appellate Court for fresh disposal in accordance with law, with a direction to decide the jurisdictional issue regarding the applicability of the Hindu Marriage Act, 1955 to the parties.
Law Points
- Hindu Marriage Act
- 1955
- Section 2(2) bars application to members of Scheduled Tribes unless custom is proved
- Jurisdictional fact must be decided before proceeding with merits
- Remand order without deciding jurisdictional issue is unsustainable
