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Report No. 114

6.4. Matrimonial Jurisdiction.-

Under heading III of para. 2.7, it is suggested that the family disputes such as (i) marriage; (ii) divorce; (iii) custody of children; (iv) inheritance and succession of property; (v) maintenance, arising from rural areas should be within the jurisdiction of the Gram Nyayalaya.

It is now suggested that Parliament has enacted Family Courts Act, 1984, and it has been put into operation. It was said that the said Act, having come into force, an exclusive forum is created for certain types of cases specified therein and these is likelihood of a conflict of jurisdiction if the Commission persists with the proposals specified in the Working Paper. Undoubtedly, Family Courts Act, 1984, has been enacted and brought into operation. To the knowledge of the Commission only one Family Court has come into existence, at Jaipur in Rajasthan manned by a male judge. Even disputes relating to marriage, divorce, and custody of children have a distinct local flavour. Urban elite couples have their own disputes relating to marriage or divorce and which has little or nothing in common with rural poor illiterate couples belonging to backward communities. In fact, customary divorce is admissible amongst some of the tribes.

Therefore, though undoubtedly the Family Courts Act, 1984, has been enacted and has been brought into operation, the Commission is of the considered opinion that in the matter of matrimonial despites arising from rural areas, the Gram Nyayalaya just have jurisdiction to deal with the same. The forms of marriage and divorce and consequent custody of children amongst Adivasis and different backward communities are traditional in character, and the knowledge of tradition is very relevant in resolution of such disputes.

To illustrate, when the Commission visited inhabited by members of scheduled tribe known as Mundas in the interior of Bihar State, the leaders of Munda tribe were critical of the judgment of the Supreme Court in N.E. Horo v. Jahan Ara Jaipal Singh, AIR 1972 SC 1840. in which the Court held that a non-Munda in marrying a member of Munda tribe becomes a member of the tribe. The leaders asserted that since hoary past no one can become member of Munda tribe except by birth. For want of finance the tribe did not appear before the Supreme Court. A Gram Nyayalaya manned by a trained Judge and two lay Judges, which may preferably included woman lay judges would be better suited to deal with matrimonial disputes arising in rural areas.

The suggestion that these disputes are likely to be complicated and may involve complex questions of personal law and would be beyond the reach and understanding of the Gram Nyayalaya, must be dismissed as wholly unwarranted. The caste panchayats effectively dealt with divorce or re-unions or maintenance and custody of children. It is not for a moment suggested that the society must move backward to the tyranny of caste panch but this justifies a belief that Gram Nyayalaya would be better suited than even the Family Courts to deal with matrimonial problems arising from rural areas. Therefore, the jurisdiction in matrimonial matters set out in para. 6.2, must be conferred on Gram Nyayalaya.

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