Woman says did not know husband's religion, seeks to nullify marriage, Bombay HC dismisses claim
Bombay High Court
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FCA124.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
FAMILY COURT APPEAL NO. 124 OF 2013
NIRANJANI ROSHAN RAO )
residing at 303 A, Vashishtha Building )
Saptarshi Park, Opp. Vasant Garden )
Swapna Nagari, Mulund West, )
MUMBAI 400 080 ).. APPELLANT
(Orig.Petitioner )
VERSUS
ROSHAN MARK PINTO )
residing at H-No. 5-112, Snehalaya, )
Chandanagar Post, Ranga Reddy Dist., )
HYDERABAD 500050 ).. RESPONDENT
Mr. Rahul Nerlekar, Advocate for the appellant
Mr. Ananth Iyengar, Advocate for the respondent
CORAM:-SMT. V.K. TAHILRAMANI &
V. L. ACHLIYA, JJ.
DATE ON WHICH JUDGMENT
IS RESERVED: 27th November, 2013
DATE ON WHICH JUDGMENT
IS PRONOUNCED: 24
th
December, 2013.
JUDGMENT: (Per Smt. V. K. Tahilramani, J.)
The appellant/original petitioner-wife has preferred
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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
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FCA124.13
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
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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:-4/16
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FCA124.13
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:-5/16
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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 the 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.
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FCA124.13
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
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FCA124.13
© 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
personwould 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.
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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
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FCA124.13
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, 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
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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
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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
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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.
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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
1
.
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
1 (2009) 1 Supreme Court Cases 714
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FCA124.13
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
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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.
(V. L. ACHLIYA, J.) (SMT. V. K. TAHILRAMANI, J.)
md.saleem
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