Validity of customary divorce & applicability of HMA over ST

Originally posted by : Mahesh
	Sir, my friend belongs to schedule tribe. He got married in 2011. His marriage was without taking dowry. His wife started to create nuisance and problems in his family, like senseless fights with husband, relatives & in-laws. She has been living with her parents for last 3 years. In the mean while, she filed complaints against him, his parents n relatives in police station like under section 406. Later the police after investigation found that the alleged complaints were false and filed just to harass my friend and his relatives. My friend n his relatives did their best to reconciliation between him n his wife, but all in vain. Since my belongs to ST community and he can't go for divorce under Hindu Marriage Act, he went to his community elders as per custom prevailed in his community. After hearing from both sides n making numerous failed attempt for reconciliation, elders decided for divorce. They gave their decision in written to my friend. This happened few months back. He consulted few lawyers, he was informed that getting a decree of divorce from the court in his case is not necessary as he belongs to ST and divorce are done based on their customs only. Now my queries are: (1) whether my friend has to go for any kind of decree from the court even when hindu marriage act is not applicable to him? (2) if yes, then how and what should be the approach for it? (3) if No, then what should be done so that false cases against him like dowry etc can be avoided, as the probability of filing false case by his former wife always be there. (4) whether can she file maintenance case against him even after customary divorce? (5) whether cases like dowry , domestic violence can be filed after divorce? Sorry for the long list of queries. I have to ask these queries as my friend has been receiving threats from his former in-laws n wife of various cases & due to this he is mentally very disturbed & depressed. He already suffered alot since his marriage. Please advise over the queries above at the earliest. Thanks.

If you belong to ST as described under Art 366, then customary divorce is enough, but you will have to take dissolution of marriage declaration through the competent court which is the district court.

Family court is the district court.

You have to apply under section 13b of the Hindu Marriage Act or Section 28 of Special Marriage Act.

https://legalpoint.co/hindu-marriage-act-is-not-applicable-to-scheduled-tribes/

https://www.thehindu.com/2001/02/16/stories/0216000g.htm

If false cases are filed, you will have to go and stand at the door of family court or magistrate court like anybody else, there is no special treatment for ST candidates here like reservation or quick relief for ST candidates.

Any case can be filed after divorce or during the proceedings of divorce or before filing of divorce in court of law.

Maintenance case will be filed and you will have to pay maintenance till the cases are over and until she remarries.

Even if you don’t approach court with divorce petition, still she can file any number of cases on you including maintenance. 

You engage a Family court lawyer and formally obtain dissolution of marriage decree through Family court by your lawyer. Or second alternative. Approach Lok Adalat under section 21 Legal Authorities Act and file for divorce mutually. Imean both of you file a fresh divorce petition in District  court which forwards your case to lok adalat and  there  you   obtain divorce decree within 1/2 an hour which is equivalent to a civil court decree and binding on both of you.Lok Adalat is equivallent to formal court.

Originally posted by : Mahesh
	Dear Sir, Thanks for your prompt reply. I understand your reply for point 2,3 ,4 & 5 of queries. She can file any number of cases as & when she wants. For query #1 , on the one hand u suggested that my friend have approach the district court for dissolution of marriage under section 13b of HMA or section 28 of SMA , but on other hand u provided links of two articles /news which are stating opposite to ur advise. As per stated in these links, if the court doesn't have jurisdiction over the subject matter than the court can't give any decree over the subject matter even with the consent of both parties. Here in my friends case, his marriage doesn't fall under HMA or registered under SMA, so how can he approach to the court under sections 13b HMA or sec 28 SMA. Further, after reading the links u provided, I did little research over internet. I understood that the family court or other court can't entertain or decide over divorce cases of ST community unless the specific ST community notified by the government under the preview of HMA /SMA. Divorce/ Dissolution of marriage in such cases can only be done as per customs of prevailed in these community. As I already told that the divorce is already done by the elders of his community as per their customs. So, there is no question of contesting the divorce again in the court. So again my query is that whether there is any need of validating the customary divorce by mean of decree by the court.? If yes than how...What r the section applicable in this case? Please reply the queries with specific sections & cases if possible. Thanks

Your friend is caveman? tht you are doing postman duty for him?

Well, you have been sufficiently advised already by Advocate Martyn and also in Expert section.

Dont use brains which you dont have.

If you want divorce legally, you need to file petition under 13b of HMA if girl agrees to give consent. or you can also apply under SMA. If girl does not consent, you will have to roam to court like anyone else, file regular divorce and take it if court grants.

Your customary divorce is like gudda guddi khel.  Court does not recognize it, only divorce decree awarded by court is valid.

Contact a good advocate locally and proceed as it suits you.