Rajiv Gakhar vs Bhavana Wasif @ Sahar Wasif

Flg. Officer Rajiv Gakhar .... Appellant (s)

Versus

Ms. Bhavana @ Sahar Wasif .... Respondent(s)

J U D G M E N T

P. Sathasivam, J.

1) Leave granted.

2) This appeal is directed against the final judgment and

order dated 01.09.2009 passed by the High Court of

Punjab & Haryana at Chandigarh in FAO No. 72-M of

2006 (O & M) whereby the High Court allowed the appeal

filed by the respondent herein and set aside the judgment

and decree passed by the Additional District Judge-I,

Faridabad in favour of the appellant herein.

1 3) Brief facts:

(a) The appellant is a pilot with the Indian Air Force and

was posted as Pilot Officer at Hakimpet (Hyderabad) in

April, 1997. In the last week of April, 1997, the appellant

was traveling by train from Delhi to Hyderabad wherein

the respondent also happened to be traveling and at which

time she introduced herself as Bhavana and claimed to be

the Vice Principal of St. Peters Convent, Vikas Puri, New

Delhi and a journalist. During the conversation,

respondent claimed to be a spinster, aged 27 years and

disclosed that she was traveling to Hyderabad in

connection with a book she was writing on Anglo Indians.

Much later the appellant learnt that she had visited

Hyderabad for appearing in her B.A. examination from

Osmania University.

(b) Subsequently, both of them met at Delhi in the first

week of July, 1997 and March, 1998 and ultimately the

respondent tricked the appellant into marrying her on

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28.11.1999 at Arya Samaj Mandir, Rathkhana, Bikaner,

Rajasthan as per Hindu rites and ceremonies. The

respondent also gave a written affidavit to the Arya Samaj

Mandir that she was a Hindu, a spinster and was never

married before.

(c) In January, 2000, the respondent's father met the

appellant at Sona Rupa Restaurant in Nehru Place, New

Delhi and it emerged during the conversation that the

respondent was a Muslim and her actual name was Sahar

Wasif and her previous marriage had taken place

according to Muslim Law with a Muslim-Wasif Khalil after

her conversion to Islam and had two children out of the

said wedlock, namely, daughter Heena (13 years) and son

Shaz (11 years). The appellant was totally shocked and

devastated to hear all this. On 22.07.2000, an FIR being

690/2000 was registered against the respondent and her

brother under Sections 406, 419 and 420 of the Indian

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Penal Code (in short `the IPC') at the Kalkaji Police Station,

New Delhi.

(d) The appellant, thereafter, filed Suit No. 87 of 2000 in

the Court of Addl. District Judge-I, Faridabad, under

Sections 5 and 12 of the Hindu Marriage Act, 1955 (in

short `the Act') seeking dissolution of marriage solemnized

on 28.11.1999 with the respondent at Arya Samaj Mandir,

Bikaner. Before the trial Court, the appellant narrated as

to how he was deceived and cheated by the respondent

and also claimed that the parties to the petition have been

living separately from the date of marriage itself and have

had no cohabitation and nor was there any consummation

for which reason no issue was born out of the wedlock.

(e) The trial Court, by order dated 07.03.2006, declared

the marriage between the parties to the petition a nullity

and also ordered the appellant to pay Rs. 2,000/- per

month as permanent alimony to the respondent towards

her maintenance.

4 (f) Aggrieved by the said order, the respondent preferred

an appeal before the High Court of Punjab & Haryana

whereby the learned Single Judge vide his order dated

01.09.2009 allowed the appeal of the respondent and set

aside the judgment and decree passed by the Trial Court.

Aggrieved by the said order, the appellant has preferred

this appeal by way of special leave before this Court.

4) Heard Mr. Sanjay Parikh, learned counsel for the

appellant-husband and Mr. P. N. Misra, learned senior

counsel for the respondent-wife.

5) It is the grievance of the appellant that the respondent

by using emotional coercion, impersonation,

misrepresentations, fraud and cheating tricked the

appellant to marry her on 28.11.1999 at Arya Samaj

Mandi, Rathkhana, Bikaner. It is also his claim that both

of them married as per Hindu rites and ceremonies. The

respondent also gave a written affidavit to the Arya Samaj

for the performance of the marriage and in that affidavit

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she claimed that she was a Hindu, a spinster and was not

married before. It is also his claim that after marriage,

during interaction with her father and relatives, he came

to know that the respondent's actual name was Sahar

Wasif and that she had converted to Islam and was

married to a muslim, she had 2 children out of her

previous wedlock, namely, Heena (13 years) and Shaz (11

years). Though the respondent has denied the claim of

the appellant, the Court of the first instance, namely,

Additional Sessions Judge accepted the case of the

appellant and declared the marriage between the

appellant and the respondent a nullity and directed the

appellant to pay a sum of Rs. 2,000/- per month as

permanent alimony to the respondent towards her

maintenance. When the said order was challenged by the

respondent-wife, the High Court, by impugned judgment,

allowed her appeal and dismissed the petition filed by the

appellant-husband.

6 6) Learned counsel for the appellant by drawing our

attention to various factual details and the findings

arrived at by the trial Court submitted that the High Court

committed an error in dismissing the husband's petition

to declare the marriage as nullity. He also relied on

decisions of this Court in Yamunabai Anantrao Adhav

vs. Anantrao Shivram Adhav and Another (1988) 1

SCC 530, M. M. Malhotra vs. Union of India & Ors.

(2005) 8 SCC 351 and Gullipilli Sowria Raj vs. Bandaru

Pavani @ Gullipili Pavani (2009) 1 SCC 714 in support

of his claim. On the other hand, learned senior counsel

for the respondent-wife by taking us through oral and

documentary evidence led in before the courts below

submitted that there was no misrepresentation or

cheating on the part of the respondent and in fact the

appellant was aware of all the details and before marriage

with the appellant, the respondent-wife had undergone

Shudhikaran Ceremonies and she was deemed to have

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become a Hindu after such ceremonies. In other words,

according to him, the respondent was not barred from

contracting marriage with a Hindu after performing

Shudhikaran.

7) Chapter IV of the Hindu Marriage Act, 1955 (in short

`the Act') deals with nullity of marriage and divorce.

Section 11 says that any marriage solemnized after the

commencement of this Act shall be null and void and may,

on a petition presented by either party thereto, or 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) of Section 5 of the Act. Section 12 speaks

about voidable marriages. According to this Section, any

marriage solemnized, whether before or after the

commencement of this Act, shall be viodable and may be

annulled by a decree of nullity on any of the following

grounds, namely, a) that the marriage has not been

consummated owing to the impotence of the respondent,

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or b) that the marriage is in contravention of the condition

specified in clause (ii) of Section 5; or c) that the consent

of the petitioner/guardian was obtained by force or by

fraud as to the nature of the ceremony or as to any

material fact or circumstance concerning the respondent;

or d) that the respondent was at the time of the marriage

pregnant by some person other than the petitioner.

Chapter II deals with Hindu marriages and Section 5

prescribes conditions for a Hindu marriage. The section

begins with saying that a marriage may be solemnized

between any `two Hindus' subject to fulfilling the

conditions prescribed therein. It is clear that Hindu

marriage if is to be solemnized under Section 5 then both

the parties of such marriage must be Hindus.

8) Though the trial Court granted decree holding that the

marriage between the appellant and the respondent is a

nullity, the materials placed by the respondent-wife in the

form of oral and documentary evidence clearly show that

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there was no contravention of any of the provisions, more

particularly, Section 5 of the Act. The respondent was

examined before the trial Court as RW1. In her lengthy

statement, she explained all the details including the fact

that how she converted to Islam to marry a muslim and

after divorce, by performing Shudhikaran ceremonies, she

became a full fledged Hindu and there is no bar in

marrying Hindu as per Hindu rites and ceremonies. She

also explained that the appellant was aware of all these

details and with full knowledge and consent, marriage of

the appellant and the respondent was performed as per

Hindu rites and ceremonies. Mr. P. N. Misra, took us

through the entire evidence of RW1 in order to

substantiate the above statement. In her evidence, she

explained in detail that her marriage with Wasif Khalil was

a love marriage wherein her parents had also consented.

She further deposed that she converted to Muslim religion

only at the time of marriage with Wasif Khalil which was

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solemnized in Mayur Vihar, Delhi in a Masjid. At the time

of marriage, parents of both the parties to marriage were

present. She also explained that at the time when she

had obtained divorce from Wasif by his saying Talaq three

times in March, 1995, her younger brother was present.

She also admitted that she was not having any

documentary evidence for the same. She further

explained that after divorce with her Muslim husband, she

had changed her name from Sahar Wasif to Bhavana

which was her original name. Immediately after the said

divorce, according to her, she had stated using her

original name Bhavana and she had undergone

Shudhikaran ceremonies for conversion to Hinduism just

after her divorce from her previous muslim husband.

9) In support of the stand taken by Respondent-wife as

RW1, one K.V. Krishnayya, aged about 60 years, resident

of Ram Nagar, Market Lane, Hyderabad was examined as

RW2 by way of an affidavit. He explained that the

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respondent-Bhavana came to his house in the company of

his daughter K. Aparna in the month of April 1997. On

one occasion, he explained that both Rajiv Gakhar and

Bhavana came to his house and on making enquiries

Bhavana disclosed that she is a born Hindu but she

married to a Muslim and now she is a divorcee as she was

divorced by her Muslim husband by saying Talaq three

times in March, 1995 and since then she again returned

to her previous religion (Hindu) after obtaining the

Shudhikaran ceremonies by calling a Pandit and by

chanting Mantras. She also disclosed that she is having

two children from her Muslim husband. RW2 also

enquired and verified the details about the appellant-Rajiv

Gakhar. In other words, according to RW2, the appellant

was also aware of all the details about RW1 including her

religion even before their marriage.

12 10) One Babu Lal, aged about 65 years, an

Astrologer/Karamkandi, resident of Sector 8, Faridabad

was examined as RW4. He explained the details about the

Shudhikaran ceremonies that were performed to the

respondent. According to him, it was done about 7 years

ago. He explained that Shudhikaran ceremonies were

performed by him on the eve of Puranmasi preceding Holi.

After recollection he mentioned that it was around March,

1997. He asserted that after performance of ceremonies,

she is deemed to have become a Hindu. He also denied

the suggestion that pursuant to marriage of Bhavana who

was earlier a Hindu with a Muslim and having two

children, she could not have returned to a Hindu fold. He

also asserted that Shudhikaran of Bhavana and her two

children were carried out simultaneously on the same

date and time and her parents were also present on this

occasion.

13 11) Another important witness examined on the side of

the respondent is her brother Vibhu Ranjan as RW6. He

explained that Bhavna Gakhar is his real elder sister and

they are Brahmins/Hindu by religion and the birth name

of his sister was Bhavana Sharma. He also explained that

his sister first married with a Muslim boy and

subsequently after Talaq, thereby her marriage with

Muslim came to an end permanently forever. He also

elaborated and explained that in the month of March,

1997 on the eve of Holi festival the Shudhikaran

ceremonies were performed in their house through Pandit

Babu Lal (RW4). He further explained that Abhishek by

gangajal was done apart from chanting of Mantras

necessary for Shudhikaran. Thus, according to him,

Bhavana returned to her original religion, i.e, Hindu and

became eligible to enter into marriage with any Hindu

male.

14 12) The analysis of the assertion of the respondent as

RW1 and the evidence of RW2, RW4 and RW6 clearly show

that the respondent-wife established that before the

marriage with the appellant she became a full-fledged

Hindu by performing Shudhikaran ceremonies in the

manner and being followed by Hindu custom and all these

material facts were known to the appellant at the time of

the marriage. In view of these factual details, the

decisions relied on by the learned counsel for the

appellant are not applicable to the case on hand.

13) Mr. Parikh heavily relied on Gullipilli Sowria Raj

(supra). The question in that decision was whether a

marriage entered into by a Hindu with a Christian is valid

under the provisions of the Hindu Marriage Act, 1955.

After finding that the appellant-husband therein was a

Roman Catholic Christian, the marriage solemnized in

accordance with Hindu customs was a nullity and its

registration under Section 8 of the Act could not and/or

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did not validate the same. In view of the said factual

scenario, as rightly observed by the High Court, the ratio

in Gullipilli (supra) is not applicable to the case on hand.

14) Inasmuch as the respondent-wife established her

claim that on the date of marriage with the appellant she

was a Hindu and the same is permissible under Section 5

of the Act, we agree with the conclusion arrived at by the

High Court and reject the argument of the counsel for the

appellant.

15) In view of the above discussion and conclusion, we

find no merit in the appeal. Consequently, the same is

dismissed.

..........................................J.

(P. SATHASIVAM)

..........................................J.

(H.L. GOKHALE)

NEW DELHI;

MAY 11, 2011.

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