IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present :- Hon’ble Justice Amrita Sinha Hon’ble Justice Ajay Kumar Gupta FA 7 of 2026 (CAN 2 of 2026) Priya Tamang Vs. Ningma Dorjay Tamang For the appellant :- Mr. Ajoy Singhal, Adv. Mr. Thaneshwar Kumai, Adv. For the respondent :- Mr. Bedanta Koushik, Adv. Mr. Hillol Saha Podder, Adv. Ms. Mousumi Das, Adv. Heard on :- 07.07.2026 Judgment on :- 10.07.2026 Uploaded on :- 10.07.2026 Amrita Sinha, J.:- 1. The instant appeal is at the instance of the respondent wife in the matrimonial suit. She assails the judgment passed by the learned Trial Court on 6th March, 2024 in MAT Suit no. 6 of 2021 dissolving the marriage solemnized between the parties on 10th October, 2018 under the Hindu Marriage Act, 1955, hereinafter referred to as ‘HMA’ for the sake of brevity. 2. The matrimonial suit was filed by the husband averring that the parties were covered by the provisions of HMA. 2 3. Specific case made out by the appellant is that the parties belong to the community of scheduled tribe, ‘Tamang’, which is duly notified by the Union of India and published in the Gazette of India (Extraordinary) on 8th January, 2003 under The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002. Provisions of HMA will not apply to the parties. 4. The marriage between the parties cannot be treated to be a marriage under HMA in view of the restriction imposed under Section 2 (2) of HMA. Such marriage could not have been dissolved under the provision of HMA. 5. In support of the submission that the appellant belongs to the notified scheduled tribe, learned advocate for the appellant relies upon the tribal certificate dated 31st August, 2015 issued in her favour by the Sub-Divisional Officer, Kalimpong. 6. It has been submitted that the appellant failed to disclose the aforesaid fact before the learned Trial Court. The tribal certificate has been filed by the appellant before this Court by way of an interlocutory application being CAN 2 of 2026 to be treated as an application under Order XLI Rule 27 CPC. 7. It has been submitted that the aforesaid document would be extremely vital for the purpose of proper adjudication of the matrimonial suit. Due to sheer inadvertence on the part of the learned advocate of the appellant, the said document was not placed before the learned Trial Court. The certificate has a direct bearing on the maintainability of the matrimonial suit and the legality of the decree impugned in the appeal. 8. It has been argued that the appellant will suffer irreparable loss and injury if the said certificate is not permitted to be relied upon resulting in grave 3 prejudice to her. The appellant was not properly guided or advised by the learned advocate. The principle that, a litigant ought not to suffer for the error on the part of the conducting counsel, has been relied upon. 9. It has been contended that a suit cannot be held to be maintainable by consent of the parties on the face of the express bar provided in the Act. 10. In support of such submission, learned advocate for the appellant relies on the judgment delivered by the Hon’ble Supreme Court in the matter of Dr. Surajmani Stella Kujur vs. Durga Charan Hansdah & Anr. reported in (2001) 3 SCC 13. 11. Prayer has been made to consider the tribal status of the parties and adjudicate upon the validity of the impugned decree. 12. Learned advocate representing the husband opposes the prayer of the appellant for introducing the tribal certificate by way of an application under Order XLI Rule 27 CPC at the appellate stage. It has been submitted that there is no dispute with regard to the tribal status of the parties. Irrespective of the aforesaid fact, as both the parties practice Hinduism, the matrimonial proceeding under HMA would be maintainable. 13. It has been contended that the tribal status has been brought up in the appeal for the first time as an afterthought after the appellant lost the suit. The appellant abandoned the point of law which could have been raised at the initial stage. The appellant never denied that their marriage would not be governed by the provisions of HMA. On the contrary, the appellant applied under HMA for grant of maintenance pendete lite. 4 14. It has been pointed out that, in the written objection filed by the appellant before the learned Trial Court, the fact of solemnization of the marriage in accordance with HMA has been admitted. The same implies that, the appellant all along believed that the marriage between the parties was solemnized in accordance with the provisions of HMA. 15. It has been stressed by the learned advocate representing the husband that, admittedly, the parties practice Buddhism, but at the same time, the parties follow Hinduism and would be guided by the provisions of HMA. Reliance has been placed on Section 2 (1)(b) of HMA wherein it has been specified that the Act applies to persons who are Buddhist. 16. In support of such submission, learned advocate for the respondent relies on the judgment delivered by the Hon’ble Chhattisgarh High Court on 03.03.2026 in the matter of Gudiya Nagesh & Anr. Vs. XXX [FA(MAT) No. 344 of 2025]. 17. Reliance has been placed on the judgment delivered by the Hon’ble Delhi High Court in the matter of Ajmera Ramulu vs. B Chandrakala reported in 2025 SCC Online Del 8248. 18. Reliance has also been placed on the judgment delivered by the Hon’ble Supreme Court in the matter of Labishwar Manjhi vs. Pran Manjhi & Ors. reported in 2001 (2) Supreme 568 & (2000) 8 SCC 587. 19. Prayer has been made to dismiss the appeal and affirm the judgment passed by the learned Trial Court. 20. Upon hearing the submissions made on behalf of both the parties and upon perusal of the documents on record it appears that, the appellant relies 5 upon Section 2(2) of HMA which is as follows: 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. 21. The respondent relies upon Section 2 (1)(b) of HMA which mentions that the Act applies to any person who is a Buddhist, Jaina or Sikh by religion. 22. In the instant case, the parties may follow the Hindu law but at the same time they belong to the scheduled tribe which has been notified by the Central Government in the Official Gazette. The fact of incorporation of the tribe in the Official Gazette was not placed before the learned Trial Court. No case was at all made out before the learned Trial Court that the matrimonial proceeding cannot be adjudicated under HMA. 23. Learned advocate representing the appellant specifically mentions that, none of the rituals required to be performed for conducting marriage under HMA was performed at the time of marriage between the parties. The marriage was not registered under HMA. The parties merrily imagined that they were married in accordance with HMA. 24. Though the factum of marriage has not been denied by the appellant, but the law under which the marriage will be governed is disputed by the appellant. 25. It appears from records that the issue as to whether the proceeding would at all be maintainable under the Act was not specifically argued before the learned Trial Court. In the absence of a challenge to the maintainability of the suit, the learned Court did not have an opportunity to adjudicate the issue. 6 26. Whether actually the ceremonies under HMA were performed or not is required to be ascertained. The same is a question of fact required to be adjudicated upon evidence to be adduced by the parties. Proof of the ceremonies would be essential to decide as to whether the marriage was performed under HMA. In the absence of the ceremonies required to be performed under HMA, it cannot be held that the marriage was conducted under HMA. 27. The appellant relies on the decision in support of her submission that HMA cannot be applied in the present case; whereas, the respondent relies on precedents which lays down that the provisions of HMA will be applicable irrespective of the fact whether the parties belong to the notified scheduled caste or tribe. As this Court is not minded to decide the issue of maintainability of the marriage under HMA at the appellate stage, accordingly, this Court consciously refrains from dealing with the judgments separately so that none of the parties are prejudiced. 28. Order XLI Rule 27 (1)(b) CPC lays down that if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. 29. It is evident that neither the tribal certificate nor the gazette notification was placed before the learned Trial Court for which the learned Court did not have the opportunity to ascertain as to whether the proceeding would be a bar under Section 2(2) of the Act. 7 30. It is settled law that jurisdiction of the Court cannot be invoked by consent of the parties. The said issue is a very vital one and the same goes to the root of the matter. It is a pure question of law required to be raised and adjudicated at the very first instance. 31. The issue has been raised by the appellant for the first time at the appellate stage and the appeal court ought not to brush aside the said issue lightly. The same will amount to miscarriage of justice. 32. To allow both the parties to raise the issue for adjudication of the same, we are of the considered opinion that for ends of justice, the parties ought to be relegated to the learned Trial Court. This Court would not like to decide the issue at the appellate stage or else the parties will lose a forum before which the issue could have been adjudicated. 33. In view of the discussions made herein above, the appeal stands disposed of by setting aside the impugned judgment dated 6th March, 2024 passed by the learned Trial Court dissolving the marriage between the parties. 34. The learned Trial Court is directed to decide the issue no. 1 framed in the suit and adjudicate as to whether the matrimonial proceeding will be maintainable under the provision of HMA. The parties shall be given opportunities to adduce evidence in support of their respective stand. The other issues framed in the suit shall be decided subsequently relying upon the conclusion arrived at in respect of the issue no. 1. 35. It is made abundantly clear that this Court has not adjudicated the issue on merits and all points are left open to be decided by the learned Trial Court 8 on the application that may be filed and upon hearing the submissions made by the respective parties. 36. The appeal and the connecting application both stand disposed of. 37. No costs. 38. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities. (Amrita Sinha, J.) I agree. (Ajay Kumar Gupta, J.)