SUMAN K SHRIVASTAVA
Ranchi, Dec. 21: In a State where tribal custom constitutes a living social order alongside constitutional adjudication, matrimonial disputes have increasingly become markers of social transition. For generations, marriage, separation, and reconciliation within tribal communities in Jharkhand were largely regulated through customary institutions deeply embedded in their collective life. With changing economic conditions, migration, education, and greater interaction with urban legal systems, matrimonial breakdown has assumed new social and legal dimensions. Individuals—often women—now approach constitutional courts not to abandon custom, but to seek formal recognition of rights where community mechanisms prove inadequate or inaccessible.
It is within this evolving socio-legal landscape that the judgment of the Jharkhand High Court in Baga Tirkey v. Pinki Linda (2021), authored by Justice Aparesh Kumar Singh and delivered by a Division Bench comprising Justice Aparesh Kumar Singh and Justice Anubha Rawat Choudhary, assumes particular significance. The decision neither displaces customary law nor introduces new doctrinal innovation. Its enduring contribution lies in correcting an institutional drift that had quietly taken root within family justice administration in the State.
Custom, Courts, and an Institutional Blind Spot
Before Baga Tirkey, Family Courts in Jharkhand had developed a practice of rejecting matrimonial petitions filed by members of Scheduled Tribe communities at the threshold. The reasoning was recurrent: since the parties were governed by customary law and not by codified personal statutes such as the Hindu Marriage Act, disputes relating to marriage and divorce were considered matters for community Panchayats alone. Maintainability, rather than merits, became the point of exit.
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This practice, while ostensibly respectful of tribal custom, resulted in a paradox. Litigants were denied access to a statutory forum created precisely to adjudicate family disputes, not because their claims lacked substance, but because their social identity placed them outside codified personal law. Custom, in effect, became a jurisdictional barrier rather than a matter for judicial determination. The consequence was a legal vacuum—where constitutional rights existed in theory but lacked an effective institutional pathway.
Living Custom and Social Reality
The judgment records, with care, the customary dispute-resolution structure prevalent among the Oraon community. Matrimonial disputes are ordinarily addressed before the Padha Panchayat, and, if unresolved, escalated to the Bisusendra. Decisions are enforced through powerful social mechanisms, including ostracisation, making non-compliance rare. These findings were placed before the Court through the assistance of amicus curiae and institutional inputs from the Tribal Research Institute, the Judicial Academy, Jharkhand, and the National University of Study and Research in Law.
The Court did not question the legitimacy or vitality of these customary institutions. On the contrary, it acknowledged them as lived law. But it refused to accept that the presence of such mechanisms could justify the exclusion of constitutional courts. Custom, the Court implicitly recognised, operates within society; courts operate within the Constitution. One cannot be allowed to extinguish the other.
Jurisdiction Not Conditioned by Codification
At the doctrinal core of the judgment lies a decisive clarification: the jurisdiction of the Family Court does not depend upon the existence of codified substantive personal law. The Court drew a clear distinction between jurisdictional facts—such as the existence of a matrimonial dispute between parties—and adjudicatory facts, including whether a custom permitting divorce exists and whether it satisfies the tests of antiquity, certainty, and reasonableness.
The Family Court’s error, as identified by the High Court, was institutional rather than interpretive. By treating the absence of codified law as a bar to jurisdiction, it collapsed adjudication into maintainability. The Family Courts Act, the Court emphasised, is a secular, forum-creating statute. Its mandate extends to “all the jurisdiction” relating to matrimonial disputes enumerated under Section 7, irrespective of the personal law—statutory or customary—ultimately found to govern the parties.
Justice Aparesh Kumar Singh and Tribal Custom: A Consistent Judicial Sensibility
The reasoning in Baga Tirkey reflects a judicial sensibility that has been consistently visible in Justice Aparesh Kumar Singh’s engagement with questions involving tribal communities in Jharkhand. Across matters touching upon land, social rights, and customary practices, his judgments have exhibited a calibrated approach: one that recognises the normative force of tribal custom while insisting that such recognition cannot result in constitutional exclusion.
Rather than treating custom as either inviolable or irrelevant, this judicial approach locates it within a framework of legality, reason, and rights. Custom is respected as a lived social practice, but it is not permitted to operate as an absolute, particularly where it intersects with access to justice and institutional remedies. Baga Tirkey exemplifies this balance. The Court did not validate or invalidate the claimed customary divorce; it insisted that the question be judicially examined through pleadings, evidence, and reasoned adjudication.
Access to Justice as a Constitutional Constant
The submissions of the amicus curiae brought the constitutional dimension into sharp focus. While community forums may remain socially effective, access to a court of law is a constitutional entitlement. Any understanding of custom that compels litigants to remain confined to extra-judicial bodies, to the exclusion of statutory courts, would be inconsistent with Articles 14 and 21. The judgment accepts this premise without antagonism towards custom, reaffirming that constitutional remedies must remain open to all citizens.
Accordingly, the High Court set aside the impugned order. It remanded the matter to the Family Court, directing it to frame appropriate issues, allow amendments to pleadings, permit evidence, and decide the dispute on the merits. The observations were expressly confined to the question of maintainability, preserving the integrity of the trial process.
Correcting Course Without Disrupting Custom
In the broader arc of the Jharkhand High Court’s twenty-five-year journey, Baga Tirkey stands as a moment of institutional self-correction. It acknowledges social change within tribal communities, respects the continuing relevance of customary institutions, and yet firmly restores the constitutional role of Family Courts.
The judgment does not suggest that courts should replace custom. It insists only that custom cannot be used to deny access to courts. In a State where law and lived tradition intersect daily, this measured affirmation carries lasting significance.
Custom may govern social life—but constitutional courts remain the guardians of rights.
