Family Courts Constituted Under Secular Law; Cannot Turn Away Parties Seeking Divorce Under Customary Laws

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Case: Baga Tirkey v. Pinki Linda & Anr.

Coram: Justice Aparesh Kumar Singh and Justice Anubha Rawat Choudhary

Case No: First Appeal No. 124 of 2018

Court Observation: “The Family Court fell in error in holding that the suit is not maintainable in absence of codified substantive law as are applicable to the parties…whether the parties are able to plead and prove the custom governing the matters of divorce between them for seeking relief was an issue to be decided on merits after considering the pleadings and evidence on record.”

“If at all, such matter is filed, seeking adjudication under the law, applicable to them, i.e. Customary Laws, they cannot resort to the provisions of Hindu Marriage Act, 1955, if the parties are not governed by the Hindu Marriage Act, 1955.”

“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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