1 2025:CGHC:20128-DB AFR HIGH COURT OF CHHATTISGARH, BILASPUR FA (MAT) No. 338 of 2024  Smt. Tanuja, W/o Dinesh Kumar, aged 26 years, Gond Tribal, R/o Shivnagar, Kanker, Tahsil and District – Uttar Bastar Kanker (C.G.). ---- Appellant Versus  Dinesh Kumar, S/o Lt. Shri Bihari Lal Dhruv, aged 28 years, Gond Tribal, R/o Uday Nagar, Tahsil and District – Uttar Bastart Kanker (C.G.) ---- Respondent For Appellant : Ms. Priyanka Shukla, Advocate. For Respondent : Mr. Shreyansh Pathak, Advocate through V.C. Hon'ble Smt. Justice Rajani Dubey & Hon'ble Shri Justice Sachin Singh Rajput (Judgment on Board) Per Rajani Dubey, J. 02.05.2025 1. The present appeal under Section 19(1) of the Family Courts Act, 1984 has been preferred by the applicant/wife against the judgment and decree dated 21.08.2024 passed by the Judge, Family Court, Kanker, District Kanker (C.G.), 2 in Misc. Civil Suit No.02-A/2023 whereby, application preferred by the applicant/wife for retrieval her Stree-dhan, was dismissed. 2. Briefly stated fact of the case are that marriage of applicant/wife was solemnized with the non-applicant/husband on 16.02.2020 according to Tribal Gondwana customs at village Shivnagar, Kanker (C.G.). After the marriage and during her stay in in-law’s house, she was harassed by non-applicant/husband, his mother and sister. On 20.12.2020, such a situation arose that on the occasion of her birthday she was compelled to come to her parental home in Shivnagar, Kanker, and is staying at her parental house. It was also pleaded that a case being Criminal Case No.665/2021 under Sections 498, 323, 34 of IPC against non-applicant/husband, his mother and sister is also pending before the trial Court. It was also pleaded that applicant/wife has the right over articles given to her at the time of marriage as Stree-dhan. It was not possible for the applicant/wife and non-applicant/husband to live together as husband and wife and lead a married life, therefore, applicant/wife submitted the application for return of Stree- dhan from non-applicant/husband. 3. The non-applicant/husband was ex-parte before the Family Court. 4. The learned Family Court, after examining oral and 3 documentary evidence, recorded its finding that the non- applicant/husband was ex-parte in the case, as such, the statement of applicant/wife could not be refuted. The learned Family Court also recorded its finding that both the parties are member of Gond Scheduled Tribe and according to the provision of Section 2 of the Hindu Marriage Act, 1955, until the Central Government declares by notification that the Hindu Marriage Act shall be applicable to the Scheduled Tribes within the meaning of clause 25 of Article 366 of the Constitution, the Hindu Marriage Act shall not be applicable to the members of Gond Tribe community, in-fact, Section 27 of the Hindu Marriage Act would not be applicable in relation to the property between the parties to the case. In any case, Section 27 of the Act is applicable only at the time of decree of divorce and separate application is not maintainable. The learned Family Court has also recorded its finding that the applicant/wife has filed an application for return of Stree-dhan without mentioning any provision, which does not fall within the jurisdiction of the Family Court as given in Section 7 of the Family Court Act, 1984, and dismissed the application. 5. Learned counsel for the applicant/wife submits that the impugned order is unsustainable in law and based on erroneous facts. The learned Family Court has erred in considering the application of the appellant under Section 4 27 of the Hindu Marriage Act, whereas the appellant has not referred to the said section, or the said Act anywhere in her application. The application by the appellant for return of the appellant’s property ought to have been considered by the learned Judge as an independent application under Section 151 of the Code of Civil Procedure, which is maintainable under Explanation (c) of Section 7 of the Family Court Act 1984. Learned counsel further submits that the learned Family Court has erroneously decided that in absence of any provision of a codified personal law, the application for return of appellant’s property (Stree-dhan), is not within his his jurisdiction. Learned counsel also submits that according to the guidelines of this Court, the Family Court has the jurisdiction to decide the family matters of Scheduled Tribes also, as such, the finding recorded by the learned Family Court is not sustainable and the same is liable to be set- aside. In support of her submission, learned counsel placed reliance on the decision of Full Bench of this Court in Babulal Yadav V. Sonu Yadav (Order dated 04.07.2023 passed in FA(MAT) No. 40/2022) and order dated 21.11.2022 passed in FAM No.203/2014 in the matter of Dilharan Markam Vs. Smt. Gayavati Markam [Neutral Citation : 2022:CGHC:26670-DB] . 6. On the other hand, learned counsel for respondent 5 appearing through video conferencing supported the impugned judgment and submits that the learned Family Court has rightly appreciated the material available on record as also provisions of Hindu Marriage Act, provisions of Family Court Act and passed the impugned order, which does not call for any interference by this Court. The appeal being without any merit is thus liable to be dismissed. 7. We have heard learned counsel for the parties and perused the material available on record. 8. Admittedly, the appellant/wife filed an application for return of her Stree-dhan which she had received at the time of marriage but the appellant/wife did not mention any Section of Hindu Marriage Act in her application, under which the relief was sought for. For ready reference, the heading of application is reproduced herein as under :- Þvkosnu i= okLrs fookg ds le; migkj Lo#i fn;s lkeku okil vkosfndk dks fnyk;s tkus ckcr~ß 9. The non-applicant/husband filed his objection that both the parties belong to “Gond” community which falls under Scheduled Tribe category and the application filed by the applicant/wife filed application under Section 27 of the Hindu Marriage Act, therefore, the same is not maintainable. 10. The learned Family Court, on the basis of pleading of the parties, framed as many as 04 issues, which for ready 6 reference are reproduced herein as under :- dz- vo/kkj.kh; iz’u fu”d”kZ 1- D;k vkosfndk] vukosnd ls ngst@migkj esa izkIr L=h/ku dks okil izkIr djus dh vf/kdkfj.kh gS \ Þizekf.kr ughß 2- D;k mHk;i{k xksaM ¼vkfnoklh½ vuqlwfpr tutkfr ds lnL; gS \ Þizekf.krß 3- D;k /kkjk&27 fgUnq fookg vf/kfu;e 1955 dk izdj.k la/kkj.kh; gS \ Þughß 4- lgk;rk ,oa okn O;;A Þ[kkfjtß 11. The learned Family Court while discussing the aforesaid issues recorded its finding that the application filed by the applicant/wife is not maintainable in view of Section 27 of the Hindu Marriage Act and dismissed the application of the appellant herein. 12. Dealing with the issue, this Court in the matter of Dilharan (supra) held in para 18, 19 and 20 as under :- “18. The illuminating opinion of the Supreme Court rendered in case of Salekh Chand (Dead) by LRs. v. Satya Gupta and Others reported in (2008) 13 SCC 119, followed in case of Rathnamma and Others v. Sujathamma and others reported in (2019) SCC 714, paragraph 16 is reproduced below : 16. This Court in a judgment reported as Salekh Chand (Dead) by Lrs V. Satya Gupta & Ors., [(2008) 13 SCC 119)], while dealing with the claim of adoption under the Hindu Adoption and Maintenance Act, 1966, held as under : “21. In Mooka Kone V. Ammakutti [AIR 1928 7 Mad 299], it was held that where customs is set up to prove that it is a variance with the ordinary law, it has to be proved that it is not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly forbidden by the legislature and not opposed to morality or public policy. It is not disputed that even under the old Hindu Law, adoption during the lifetime of a male issue was specifically prohibited. In addition, I have observed that such an adoption even if made would be contrary to the concept of adoption and the purpose thereof, and unreasonable. Without entering into the arena of controversy whether there was such a custom, it can be said that even if there was such a custom, the same was not a valid custom. 19. In case of Dr. Surajmani Stella Kujur v. Durga Charan Hansdah and Another reported in (2001) 3 SCC 19, Hon’ble Supreme Court has held as follows : “10. For custom to have the colour of a rule or law, it is necessary for the party claiming it to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being in derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence.” 20. Hence, it is the duty of the Court to record only such findings, which are to be followed on a proper appreciation and a legitimate inference from the evidence on record. In such circumstances, we are of the considered view that finding of the Family Court with regard to maintainability of the divorce petition without proper material, pleadings or evidence, is an error apparent on the face of record, which suffers from vice of exercise of jurisdiction in an irregular manner. Such irregularity 8 in exercise fo jurisdiction vested in Family Court by law, undoubtedly, gave rise to a jurisdictional error and, therefore, occasioned an erroneous order within the meaning of Section 13 of the Act of 1955.” 13. Further, the Full Bench of this Court in the matter of Babulal (supra) held in para 28 as under :- “28. In light of the above-stated findings and answer, the judgment rendered by this Court in Smt. Babita lias Gyatri (supra) followed in Smt. Anjali Trived (supra) cannot be held to be laying down the good law, accordingly they are overruled, however, the judgment rendered in Smt. Devika Josh (supra) to the extent that wife is entitled to recover stridhan by filing appropriate proceeding before the Family Court is the correct law, but , further, the finding that it would be maintainable under Section 27 of the Act of 1955 cannot be said to be laying down the correct law in view of the reference answered herein. The question of law is answered accordingly.” 14. In the light of aforesaid, it is clear that separate application filed by applicant/wife under Section 151 of Cr.P.C. is maintainable under Explanation (c) to sub-section (1) of Section 7 of the Act of Family Court Act, 1984, and the learned Family Court did not appreciate this fact that non- applicant/husband has not rebutted the application of applicant/wife and only on the ground of maintainability the learned Family Court dismissed the application of the 9 applicant/wife for return of stree-dhan. 15. In view of the aforesaid decisions, the matter needs to be remanded back to the Family Court for reconsideration/correction of apparent jurisdictional error. 16. In the result, the appeal is allowed. Impugned judgment and decree dated 21.08.2024 passed by the Family Court, Kanker, District Kanker (C.G.) is set aside. The matter is remanded to the Family Court, Kanker to reconsider the point of maintainability as well as merits of the case, in accordance with law. The Family Court is directed to give an opportunity to non-applicant/husband to file his written statement/reply and after framing issue and taking evidence of both the parties, decide the matter on merit. We permit the applicant/wife to amend her pleading, if she so desires. The Family Court shall make endeavor to conclude the proceedings as expeditiously as possible preferably within a period of 06 months from the date of receipt of copy of this order and record. The parties are directed to appear before the Family Court on 01.07.2025. The record of the Family Court be sent back forthwith. Sd/- Sd/- (Rajani Dubey) (Sachin Singh Rajput) Judge Judge Pekde Digitally signed by VIJAY BHARATRAO PEKDE