Gullipilli Sowria Raj vs Bandaru Pavani @ Gullipili Pavani

the marriage was registered on 2.11.1996 under 2 Section 8 of the Hindu Marriage Act, 1955,

hereinafter referred to as the "1955 Act".

3. Soon thereafter, on 13.3.1997, the respondent-

wife filed a petition before the Family Court

at Vishakapatnam, being O.P. No.84 of 1997,

under Section 12(1)(c) of 1955 Act, for a

decree of nullity of the marriage entered into

between the parties on 24.10.1996 on the

grounds mentioned in the said petition.

4. The main ground for declaring the marriage to

be a nullity was mainly misrepresentation by

the appellant regarding his social status and

that he was a Hindu by religion, although it

transpired after the marriage that the

appellant and his family members all professed

the Christian faith. The Family Court dismissed

the said petition against which an appeal was

preferred by the respondent before the High

Court, which allowed the appeal by its judgment

and order dated 12.9.2002 upon holding that

the marriage between a Hindu and a Christian 3

under the 1955 Act is void ab initio and that

the marriage was, therefore, a nullity.

5. A few months thereafter on 23.1.2003 the

respondent married one Dr. Praveen. Thereafter,

on 23.4.2003 the appellant filed a Special

Leave Petition out of which the present appeal

arises.

6. There is no dispute that at the time of the

purported marriage between the appellant and

the respondent the appellant was a Christian

and continues to be so whereas the respondent

was a Hindu and continues to be so. There is

also no dispute that the marriage was alleged

to have been performed under the Hindu Marriage

Act, 1955, and was also registered under

Section 8 thereof. As against the above, a

novel argument has been advanced on behalf of

the appellant, the substance whereof is that

the Hindu Marriage Act, 1955 does not preclude

a Hindu from marrying a person of some other 4

faith. In order to assist the Court in regard

to such a submission, the Court had requested

Mr. U.U. Lalit, learned Senior Advocate, to

assist the Court in the matter.

7. Mr. Lalit firstly took us through the

provisions of Section 5 of the 1955 Act which

prescribes the conditions for a Hindu marriage.

The opening words of Section 5 are as follows:

"A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :..."

8. Mr. Lalit submitted that the use of the word

`may' in the opening words of Section 5 seems

to indicate that the conditions were not

mandatory and that as a result, the said

conditions would not be binding on the marriage

performed between the appellant and the

respondent.

5

9. Mr. Lalit then took us through the provisions

of Section 11 of the 1955 Act, which deals with

void marriages and indicates as follows :

"11. Void marriages :- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5."

10. Mr. Lalit submitted that none of the

conditions, as indicated in Section 11, apply

to the facts of this case and as such the

marriage between the appellant and the

respondent could not be said to be a void

marriage. According to Mr. Lalit, at best the

marriage could be said to be a voidable

marriage and the High Court appears to have

proceeded on an erroneous footing that the

marriage was ab initio void.

6

11. Adopting the line of submission advanced by Mr.

Lalit, Mr. C. Mukund, learned counsel for the

appellant, submitted that the Heading of

Section 5 - `Conditions for a Hindu marriage'

was a misnomer, having regard to the use of

the expression `may' in the opening lines of

the Section. Mr. Mukund submitted that the

conditions indicated in Section 5 must be held

to be optional and that Section 7 of the said

Act where also the expression `may' has been

used in Sub-section (1) must be understood to

refer to a marriage and not the parties to the

marriage. Mr. Mukund submitted that Section 11

of the Hindu Marriage Act, 1955, would,

therefore, have an overriding effect over the

provisions of Section 5 which, according to

him, were optional. Mr. Mukund reiterated that

the Hindu Marriage Act, 1955, does not

contemplate a valid marriage only between two

Hindus, and urged that the High Court had erred

in allowing the respondent's application under 7 Section 12(1)(c) of the above Act on such

misconception of the provisions thereof.

12. Mr. Y. Rajagopala Rao, learned advocate

appearing for the respondent wife, submitted that

it will first have to be decided whether the

marriage performed between the parties was a valid

Hindu marriage or not. According to Mr. Rao, the

other questions would arise only thereafter. In

this regard, Mr. Rao submitted that the Preamble to

the Hindu Marriage Act, 1955, in unambiguous terms

makes it clear that the Act was promulgated to

amend and codify law relating to marriage amongst

Hindus. He urged that the language of the Preamble

leaves no room for doubt that the Act and its

provisions would apply to Hindus only, as defined

in Section 2, Sub-section (1)(c) whereof

specifically excludes a person professing the

Christian faith from the its ambit. Mr. Rao urged

that each religious community in India had their

own form of marriages which excluded members of

other religious communities, though the Indian 8 Marriage Act did recognize a marriage between a

Christian and non-Christian to be valid, though

under the provisions of the Special Marriage Act.

13. Mr. Rao also referred to Section 2 of the

above Act which reads as follows:

2.-Application of Act- (1) This Act applies,-

(a) to any person who is a Hindu by religion in any of of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;

(b) to any person who is a Buddhist, Jaina or Sikh by religion, and

(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

Explanation.- The following persons are Hindus, Buddhists, Jainas or 9

Sikhs by religion, as the case may be,-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist Jaina or Sikh by religion and who is brought up as a member of tribe, community, group or family to which such parents belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindus, Buddhist, Jaina or Sikh religion.

(2) 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.

(3) The expression "Hindus" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion is, nevertheless, a person whom this Act applies by virtue of the provisions contained in this section."

10

14. Reference was then made to Section 4 of the Act

which, inter alia, provides that save as otherwise

expressly provided in the Act any text Rule or

interpretation of Hindu Law or any customs or usage

as part of that law in force immediately before the

commencement of the Act would cease to have effect

with respect to any matter for which provision had

been made in that Act. Mr. Rao pointed out that the

said Section also provided that the Hindu Marriage

Act, 1955, would override other laws in force

immediately before the commencement of the Hindu

Marriage Act, 1955, in so far it was inconsistent

with any of the provisions of the 1955 Act.

15. With regard to the provisions of Section 5 of

the Hindu Marriage Act, 1955, Mr. Rao submitted

that it was clear from the wording thereof that the

conditions indicated in the Section were to apply

only in respect of a marriage between two Hindus

and that a Hindu marriage could be solemnized 11

between two Hindus only when the conditions set out

in the provisions contained therein had been

fulfilled. According to Mr. Rao, the marriage

between the parties would have to be categorised

within the scope and ambit of Section 12 relating

to voidable marriage since a void marriage under

Section 11 of the Act had been defined to mean any

marriage solemnized after the commencement of the

Act if it contravenes any one of the conditions

specified in clauses (i)(iv) and (v) of Section 5.

Since the marriage of the parties did not fall

within the said categories, the respondent had no

option but to make an application under Section 12

(1)(c) that the marriage was a nullity on the

ground that the appellant had been beguiled into

the marriage by the appellant on fraudulent

considerations, one of which was that he was a

Hindu at the time of marriage. Mr. Rao submitted

that since a valid marriage under the Hindu

Marriage Act, 1955, could only be performed between

two Hindus the marriage had been rightly declared 12

to be a nullity by the High Court and its decision

did not warrant any interference in this appeal.

16. Apart from the aforesaid question, another

submission was advanced on behalf of the

respondent to the effect that, after the decree

passed in her favour declaring the marriage to be a

nullity, she had remarried on 23.1.2003 i.e about 4

months after the decree declaring her marriage with

the appellant to be nullity had been passed.

17. Various decisions were cited on behalf of both

the parties with regard to this aspect of the

matter which, in our view, is not really important

for a decision on the legal question that has been

raised in the appeal.

18. Although, an attempt has been made to

establish that the Hindu Marriage Act, 1955, did

not prohibit a valid Hindu marriage of a Hindu and

another professing a different faith, we are unable 13

to agree with such submission in view of the

definite scheme of the 1955 Act.

19.In order to appreciate the same, we may first

refer to the Preamble to the Hindu Marriage Act,

1955 , which reads as follows:

"An Act to amend and codify the law relating to marriage among Hindus".

(Emphasis added)

20.As submitted by Mr. Rao, the Preamble itself

indicates that the Act was enacted to codify the

law relating to marriage amongst Hindus. Section

2 of the Act which deals with application of the

Act, and has been reproduced hereinabove,

reinforces the said proposition.

21.Section 5 of the Act thereafter also makes it

clear that a marriage may be solemnized between

any two Hindus if the conditions contained in 14

the said Section were fulfilled. The usage of

the expression `may' in the opening line of the

Section, in our view, does not make the

provision of Section 5 optional. On the other

hand, it in positive terms, indicates that a

marriage can be solemnized between two Hindus if

the conditions indicated were fulfilled. In

other words, in the event the conditions remain

unfulfilled, a marriage between two Hindus could

not be solemnized. The expression `may' used in

the opening words of Section 5 is not directory,

as has been sought to be argued, but mandatory

and non-fulfilment thereof would not permit a

marriage under the Act between two Hindus.

Section 7 of the 1955 Act is to be read along

with Section 5 in that a Hindu marriage, as

understood under Section 5, could be solemnized

according to the ceremonies indicated therein.

22.In the facts pleaded by the respondent in her

application under Section 12(1)(c) of the 1955

Act and the admission of the appellant that he 15

was and still is a Christian belonging to the

Roman Catholic denomination, the marriage

solemnized in accordance with Hindu customs was

a nullity and its registration under Section 8

of the Act could not and/or did not validate the

same. In our view, the High Court rightly

allowed the appeal preferred by the respondent

herein and the judgment and order of the High

Court does not warrant any interference.

23.The other question raised regarding the

subsequent marriage of the respondent is of

little relevance once we have held that the

marriage purported to have been performed

between the appellant and the respondent on

24.10.1996 was a nullity. Hence, no decision is

called for in that regard and we also make no

observation in respect thereof.

24.The appeal is accordingly dismissed.

25.There will, however, be no order as to costs. 16

26.We place on record our appreciation of the

assistance provided by Mr. Lalit to help us to

arrive at a decision in this appeal.

____________________J.

(ALTAMAS KABIR)

____________________J.

(AFTAB ALAM)

New Delhi

Dated: 4.12.2008