Need for Reform in “Contested Divorce Cases”

May 22, 2021 | Shahenaz Begum

Source: Wikimedia Commons

 

Marriage and divorce in India are regulated by codified and uncodified personal laws. The Hindu Marriage Act, 1955 governs marriage and divorce between Hindus. However, the legal framework governing the marriage and divorce between members of the Scheduled Tribes community has been unclear.

 

Section 2(2) of the Hindu Marriage Act, 1955 (‘HMA’) has explicitly excluded the application of the Act to the members of a Scheduled Tribe. The expression “Scheduled Tribe” is defined under clause 25 of Article 366 of the Constitution of India, 1950. And the procedure to notify a particular tribe is laid down in Article 342 of the Constitution. 

 

S. 2(2) of HMA categorically excludes the applicability of the Act to marriages between members of Scheduled Tribe. However, the Central Government may specifically pass a notification extending the applicability of the Act to identified tribes. Since the passing of HMA, the Central Government has not notified any Scheduled Tribes for whom HMA would apply. 

 

In a gist, members of the Scheduled Tribe are governed by their customary and personal laws. So, marriage and dissolution of marriage in Hindus and members of the Scheduled Tribe is differently tackled. Whereas for the former HMA applies, to the later customary law, rituals and usages are enforced.

 

In situations where HMA is inapplicable, to save oneself from the menace of customary divorce, one can register his/her marriage under Section 15 of the Special Marriage Act, 1954 (‘SMA’). This section provides for the registration of marriages celebrated in other forms. But what if marriage is celebrated following customary laws between two members of notified scheduled tribe and the same has not been registered under SMA?

 

This situation arose before Tripura High Court in Smt. Rupa Debbarma v. Sri Tapash Debbarma, where the Court noted the conspicuous lack of a legal provision for dissolution of the said marriage. The Court highlighted that “customary divorces are problematic as no records can be created”. It further added that “the statutory embargo has been generating ingenious means for coming under the statutory provision for having dissolution of marriage”. Considering the complexity of the situation, the Court urged the Central Government to immediately consider this legal rigmarole.

 

This is yet another area where the law needs to be reformed for reconciliation of the rights of the litigants who are the members of the Scheduled Tribe community. 

 

Shahenaz Begum

Equality Fellow

View profile