Family Courts Constituted Under Secular Law Cannot Turn Away Parties Seeking Divorce Under Customary Laws: Jharkhand High Court

In absence of codified substantive law, The Family Courts Act, 1984 being secular law applying to all religions would be applied as there is no precedent that bars members of the Scheduled Tribe to approach the Family Court by filing any suit or proceeding relating to people. The judgement was passed by the High Court of Jharkhand in the case of Baga Tirkey v. Pinki Linda & Anr. [First Appeal No. 124 of 2018] by Division Bench consisting of Hon’ble Justice Aparesh Kumar Singh & Justice Anubha Rawat Choudhary.

The Court was hearing an appeal against an order of the Family Court, Ranchi dismissing a suit for Divorce filed by the Appellant, a member of the Oraon community, on the ground of adultery, as non-maintainable.

Learned amicus curiae submitted that even customs and usage cannot impede the rights of a citizen to approach the Court of Law, i.e. a family court seeking a divorce. It was contended that if at all a custom forbids access to Family Court and relegates a person seeking divorce to Panchayat/Community court, the same will be violative of right to access to justice and any sanctification of customs, resulting in violation of fundamental rights ought not to be resorted to.

The Court emphasized that the Family Courts Act, 1984 is a secular law applying to all religions.

“Section 7 thereof relates to Jurisdiction of Family Courts and sub-section (1)(A) of the provision confers on them “all the jurisdiction” hitherto exercised by any District Court in suits or proceedings relating marriage, divorce, etc. Thus, it is held that there is no precedent which bars members of the Scheduled Tribe to approach the Family Court by filing any suit or proceedings relating to matters mentioned in Section 7 of the Family Courts Act.”

The court while allowing the petition observed that “the Family Court Act, being a secular law, applying to all religions and communities and conferred with the power to adjudicate on matters mentioned in Clauses (a) to (g) of the Explanation to Section 7 of the FCA, could not have held that the suit is not maintainable in the absence of a codified Customary Law of the parties. Family Court would not have straightaway dismissed the suit as not maintainable holding that there is no codified substantive law, governing the parties. In such a case, where parties claimed to be governed by Customary Law, the learned Family Court ought to have framed an issue to that effect. Once it is found that the parties are governed by the Customary Law, the parties are required to plead and prove the customs, by which, they are governed in matters concerning, marriage and divorce.”

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