Family Court Appeal No.124 of 2013

24th December, 2013

Petitioner Counsel: Mr. RAHUL NERLEKAR
Respondent Counsel: Mr. ANANTH IYENGAR

Cases Cited:
Smt. Neeta Kirti Desai Vs. Bino Samuel George, 1997(4) ALL MR 20=1998 (1) Bom. C.R. 263 [Para 8]
Gullipilli Sowria Raj Vs. Bandaru Pawani @ Gullipili Pawani, 2009(1) ALL MR 488 (S.C.)=(2009) 1 SCC 714 [Para 13]

JUDGMENT

SMT. V. K. TAHILRAMANI, J. :- The appellant/original petitioner-wife has preferred this appeal against the order dated 18/4/2013 passed in Family Court Petition No. 2877 of 2011.

2. In brief the facts leading to filing of the appeal are summarized as under:

(i) The appellant/original petitioner-wife had filed the petition seeking decree of nullity of marriage and alternatively claimed the decree of divorce. In nutshell, the appellant had approached with the case that on 13/1/1999, she was married to respondent as per Hindu rites and rituals. At the time of marriage the appellant was Hindu and respondent was Christian. After the marriage they continued to profess their respective religion. At the time of filing of the petition also they continue to practice and follow their respective religion.

(ii) The appellant had filed petition u/s 11 of Hindu Marriage Act 1955, seeking decree of nullity on the ground that their marriage was null and void as same being in contravention of essential condition of valid marriage provided u/s 5 of Hindu Marriage Act. By way of alternate relief, the appellant had claimed decree of divorce u/s 13(1)(i-a) of Hindu Marriage Act, on the ground of cruelty. Since the learned Judge of Family Court has rejected the petition of the appellant in exercise of powers under Order VII Rule 11 of Civil Procedure Code, it is not necessary for us to state in detail the facts pleaded in the petition as well as the case of the respondent.

(iii) In view of the fact that respondent i.e. the husband has admitted the fact that at the time of the marriage and since thereafter he continued to be Christian though their marriage was performed as per Hindu rights and rituals the appellant had taken out the application under Order XII Rule 6 of CPC seeking decree of nullity of marriage on the ground of admission given by the respondent. The learned Judge of the Family Court on consideration of the application taken out by the petitioner-appellant and the pleadings on record, reached to prima facie conclusion that the petition discloses no cause of action which needs to be adjudicated by the court and issued notice to appellant to show cause as to why the petition shall not be rejected under Order 7 Rule 11(a) & (d) of CPC.

(iv) Although the petitioner-appellant has not filed say to the notice issued by the learned Judge of the Family Court, but filed written arguments. The learned Judge of the Family Court, after hearing the parties and considering the facts pleaded in the petition that at the time of marriage the petitioner-wife was Hindu by religion and respondent-husband was Christian and continued to practice and profess their respective religion, rejected the petition in exercise of powers under Order 7 Rule 11 of C.P.C, as the petition discloses no triable cause of action. Being aggrieved by the order of rejection of petition, the appellant has preferred this appeal.

3. We have heard the learned advocates appearing for the appellant as well as the respondent. After carefully scrutinizing the impugned order in the light of the pleadings of the parties and the relevant provisions of the Hindu Marriage Act, 1955, for the reasons mentioned herein above, we are of the view that the order impugned by way of this appeal is perfectly legal and calls for no interference in exercise of appellate jurisdiction, by this court.

4. The appellant is seeking decree of nullity of marriage under Section 11 of the Hindu Marriage Act. Section 11 of the Hindu Marriage Act reads thus:-

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) of Section 5.

Section 2 of the Hindu Marriage Act clearly states that the petition can be filed by the parties who are both Hindus. Section 5 of the Hindu Marriage Act provides the conditions for a Hindu marriage. In the beginning itself, it is provided that the marriage must be solemnized between any two Hindus. As mentioned above, the appellant herself has stated that the respondent was not a Hindu at the time of marriage or even thereafter. If this condition is not fulfilled and there was no contravention of provisions laid down under Section 5 of the Hindu Marriage Act, the Family Court was right in observing that the appellant has no right to file such a petition.

5. In the present case, there is no contravention of the clauses (i), (iv) and (v) of Section 5. Clauses (i), (iv) and (v) of Section 5 reads thus:-

5. Conditions for a Hindu Marriage- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :-

i.neither party has a spouse living at the time of the marriage;

ii.........................

iii........................

iv. the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;

v. the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between two.

It is not the case of the appellant that she or the respondent were earlier married and hence, had a spouse living at the time of the marriage. It is not even her case that they were within the degrees of prohibited relationship or were sapindas of each other. In such case, the marriage cannot be held to be null and void under Section 11 of the Hindu Marriage Act.

6. If, we consider the undisputed facts then fact is not in dispute that at the time of marriage the appellant was Hindu by religion and respondent was Christian. They performed marriage as per Hindu rites and rituals. It is also not in dispute that after their marriage, they continue to practice and profess their respective religion. Therefore, the first and foremost question falls for our consideration is whether at all the provisions of Hindu Marriage Act 1955 can be invoked by petitioner to claim any relief. In this context it is useful to refer the provision of Section 2 of Hindu Marriage Act 1955, which provides for applicability of the provisions of the said Act. Section 2 of the Hindu Marriage Act, reads as follows:

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

(a) to any person who is a Hindu by religion in any 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. (emphasis supplied).

Explanation.-The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-

(a) ..............;

(b) ...............; and

© ................

(2) ................

(3) The expression "Hindu" 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 to whom this Act applies by virtue of the provisions contained in this section.

Thus the plain reading of Section 2 explicitly provides that the provisions of Hindu Marriage Act, 1955 can be availed and applicable when both the spouses are Hindus and their marriage is performed as per Hindu rites and rituals and the marriage is a valid marriage within the meaning of Section 5 of Hindu Marriage Act. It is also necessary that at the time of filing petition, both the spouses are Hindus by religion except for seeking remedy of divorce u/s 13(1)(c) of the Hindu Marriage Act i.e. on the ground of person ceases to be Hindu due to conversion to another religion.

7. In the present case, according to the appellant, at the time of performing the marriage with the respondent, the appellant was Hindu by religion and the respondent was Christian. They performed the marriage as per the Hindu rites and rituals. After their marriage in the year 1999, they continued to profess their respective religion till filing of this petition. The petitioner is professing Hindu religion whereas the respondent continued to practice and profess Christian religion. Thus at the time of their marriage as well as at the time of filing of petition, both petitioner and respondent were not Hindus by religion and same position is continued till filing of petition. In view of this admitted position, the learned Judge of the Family Court has held that petition discloses no cause of action and so also the jurisdiction of the court is barred under law to entertain and prosecute such petition under the provisions of Hindu Marriage Act. On reaching to such conclusion, the learned Judge has invoked powers under Order VII Rule 11 of CPC and rejected the petition. Therefore, in our view the reasons recorded by the learned Judge in rejecting the petition is legal and calls for no interference in exercise of appellate jurisdiction.

8. The issue raised in this petition remains no more res integra as the Division Bench of this court in the case of Smt. Neeta Kirti Desai vs. Bino Samuel George, 1998 (1) Bom. C.R. 263 : [1997(4) ALL MR 20], has laid down that when both the spouses are Hindus, they are regulated under the Hindu Marriage Act. If one of the party to such marriage is not Hindu the provisions of Hindu Marriage Act, 1955 cannot be invoked to seek the remedy under the said Act. The court has held as under:

"The Family Court Act creates a forum. The Family Court Act has not settled the rights and obligations between the parties viz. restitution of conjugal rights, judicial separation, nullity of marriage and divorce. When both the spouses are Hindus, they are regulated under the Hindu Marriage Act, 1955. Undisputedly, petition was presented on the ground that at the time of marriage, petitioner's husband was a Christian. If that be so, having regard to the provisions of section 2, the Hindu Marriage Act, 1955 has no application for seeking any of the reliefs including the nullity of the marriage. Petition, as present, was, therefore, untenable."

9. Learned Advocate for the appellant submitted that the consent to the marriage was obtained by fraud and hence, Section 12(c) of the Hindu Marriage Act would come into play. He submitted that the petition ought to have been preferred under Section 12(c) of the Hindu Marriage Act. Section 12 (c) reads as under:-

"12. Voidable marriages :- (1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:-

(a)................

(b)................

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner [ was required under Section 5, as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act,1978 (2 of 1978)], the consent of such 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).........................

10. Though, this stand has been taken belatedly, we have examined the same. As observed in foregoing paras, the appellant has stated in her petition that her father and the respondent's father were close friends. The appellant and the respondent were acquainted with each other since their childhood. Their marriage was love marriage. In the petition itself, she has stated that she was a Hindu by religion and the respondent was a Christian by religion and he did not convert himself into Hindu religion. It is not the case of the appellant anywhere in the petition that she came to know just before filing of the petition that the respondent was a Christian.

11. The surname of the respondent is 'Pinto' which is distinctly a Christian surname and can never be a Hindu surname. Not only has the appellant not averred in the petition that she did not know at the time of the marriage that the respondent was not a Hindu but from the fact that surname of the respondent is 'Pinto' and other facts, it was clearly to the knowledge of the appellant that the respondent was a Christian at the time of the marriage. Thus, it is too late in the day to contend that her consent to the marriage was obtained by fraud and that the respondent had concealed from her the fact that he was a Christian. It is pertinent to note that in the petition, the appellant has stated that her parents in fact opposed the marriage as she and the respondent were from different religions. Thus, now the appellant cannot contend that the respondent had concealed the fact from her that he was a Christian and therefore, she is entitled to a decree of nullity on the ground that her consent was obtained by fraud by concealing the fact that the respondent was a Christian.

12. Thus, in this view of the matter, as far as the prayer for nullity of marriage is concerned, the petition does not disclose any cause of action. The Family Court was right in holding that the petition does not disclose the cause of action and the same is barred by law under Order VII, Rule 11 (a) & (d) of CPC.

13. Learned Advocate for the appellant submitted that under the Hindu Marriage Act, the marriage can be performed only between two Hindus and if any one of the parties or both are not Hindus, the marriage would be a nullity. In support of his contention, he has placed reliance on a decision in the case of Gullipilli Sowria Raj Vs Bandaru Pawani @ Gullipili Pawani (2009) 1 Supreme Court Cases 714 : [2009(1) ALL MR 488 (S.C.)]. We had carefully gone through the said decision. We find that in the said case, the respondent-wife had filed a petition before the Family Court under Section 12(1)(c) of the Hindu Marriage Act for a decree of nullity of the marriage. The main ground taken therein was misrepresentation by the husband that he was a Hindu by religion. In the said case, the wife was a Hindu and the husband was a Christian and the marriage was performed under Hindu Marriage Act and was also registered under Section 8 thereof. However, the main distinction between the decision relied on and the present case is that the respondent-husband therein had suppressed the fact that he was a Christian at the time of the marriage and hence, the wife married him thinking him to be a Hindu. Later on, when she came to know that the husband was a Christian, she filed the petition under Section 12(1)(c) for a decree of nullity of marriage on the ground that she had been beguiled into the marriage by the husband on fraudulent considerations, one of which was that he was a Hindu at the time of marriage. Such are not the facts in the present case. In the present case, the appellant knew since the beginning that the respondent was a Christian, hence, there is no case of force or fraud in the present case. No averments to that effect have also been made in the petition before the Family Court. Thus, this decision cannot be made applicable to the facts of the present case.

14. In view of the conclusion to which we have reached, we are of the view that order passed by the learned Judge of the Family Court is perfectly legal and calls for no interference in exercise of appellate jurisdiction.

15. In the result, the appeal is dismissed with no order as to costs.

Appeal dismissed.