Validity of customary divorce and applicability of hindu marriage act over st community
Mahesh
(Querist) 29 May 2017
This query is : Resolved
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.
Adv Shailendra Deshpande
(Expert) 30 May 2017
HMA is applicable to all Hindus including Jains, Buddhist & Sikhs & not on caste. Divorce cannot be granted and considered valid without court order.
Rajendra K Goyal
(Expert) 30 May 2017
You asked:
(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?
Reply:
Any divorce without court decree is not legal.
Not aware under which law HMA is not applicable to STs as mentioned by you.
You asked:
(2) if yes, then how and what should be the approach for it?
Reply:
Try for amicable settlement and if not possible go for Mutual Consent Divorce. Contested divorce may take years.
Guest
(Expert) 30 May 2017
Agree with Mr.RK Goyal
Rajendra K Goyal
(Expert) 30 May 2017
You asked:
(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.
Reply:
Try for amicable settlement and prefer for Mutual Consent Divorce.
You asked:
(4) whether can she file maintenance case against him even after customary divorce?
Reply:
Customary divorce not legal, she can claim maintenance.
Guest
(Expert) 30 May 2017
Any divorce with out court orders not legally valid please in Hindu marriages
Guest
(Expert) 30 May 2017
Agree with Mr RK Goyal
Rajendra K Goyal
(Expert) 30 May 2017
You asked:
(5) whether cases like dowry , domestic violence can be filed after divorce?
Reply:
The divorce is not legal, such cases can be filed.
Guest
(Expert) 30 May 2017
She Can Claim Maintenance Please
Guest
(Expert) 30 May 2017
Try for Amicable settlement please
Guest
(Expert) 30 May 2017
Agree with Mr RK Goyal
Guest
(Expert) 30 May 2017
Divorce with out court orders not legally valid please
Guest
(Expert) 30 May 2017
You could try for MCD Please
Guest
(Expert) 30 May 2017
Agree with Experts Please
Guest
(Expert) 30 May 2017
Well Advised Please
Mahesh
(Querist) 30 May 2017
@R K Goyal sir,
HMA is not applicable on STs as per section 2 (2) of HMA
"Notwithstanding anything contained in sub-section (1),nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs."
Also refer to the links:
http://legalpoint.co/hindu-marriage-act-is-not-applicable-to-scheduled-tribes/
http://www.thehindu.com/2001/02/16/stories/0216000g.htm
Therefore it is clear that HMA is not applicable on STs.
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, so how can he approach to the court under HMA. Further, 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
krishna mohan
(Expert) 31 May 2017
I agree with Mr.R.K.Goyal views. However in the light of your cited exclusions for ST you may check for amendment if any, the written divorce order issued by elders which you claim is valid with a legal expert specialized on divorce matters for right advise.
Mahesh
(Querist) 02 June 2017
Pls advise some good lawyer in Delhi for the same
Mahesh
(Querist) 06 June 2017
Pls advise some good lawyer in Delhi for the above case
