Whether Hindu wife can claim maintenance from Christian husband U/S 125 of CRPC?
performed in contravention of Clauses (i), (iv) and of Section 5 of the Hindu
Marriage Act are void, whereas under Section 12 of the said Act, for contravention
of any of the conditions enumerated therein, the marriages are voidable.
It is necessary to notice that neither Section 11 nor Section 12 of the
said Act renders a marriage between a Hindu and a Christian void or voidable on
the ground that the parties belong to two different religions.
The rigour of voidness covered by Section 4 of the Indian Christian
Marriage Act is stressed and attached more to the persons that officiate in the
solemnisation of the marriages, and it does not envisage as regards the validity or
otherwise of a marriage simpliciter that took place between a Hindu and a Christian.
This view is again fortified by Section 4 of the Special Marriage Act, which permits
a marriage between two persons of different faiths. Therefore, a Hindu can marry a
Christian under the Special Marriage Act. Such a marriage cannot be held to be
void on the ground that it was not performed according to the provisions of Section
5 of the Indian Christian Marriage Act. Similarly, Section 4 of the Foreign Marriage
Act permits a marriage between parties, one of whom at least is an Indian citizen
residing outside India. On a similar anology as noted supra, even a marriage under
this Act, if performed between a Hindu and a Christian both or one of whom is an
Indian citizen, cannot be held to be void on the ground that it is not performed in
accordance with the provisions of Section 5 of the Indian Christian Marriage Act.
Accordingly, in view of the above discussion, it has to be held that the
marriage between a Christian and a Hindu performed as per the Hindu rites with the
full consent of both parties cannot be said to be invalid for purposes of claiming
maintenance u/S. 125, Cr.P.C.
In Kunhiraman Nair v. Annakutty, 1967 Ker LT 24, it is noteworthy
that the marriage was performed in accordance with the customs prevalent in Nair
community between a Nair male and a woman following Roman Catholic faith. It
was held that the very performance of the marriage and the fact that the parties
thereto lived together as husband and wife were sufficient to confer on the woman
the status of wife for claiming maintenance u/S. 488, Cr.P.C., 1898.
In Pahtan Maung v. Ma San, (1939) 40 Cri LJ 653 : AIR 1939
Rangoon 207, a Budhist woman married a Mohammadan and claimed maintenance.
It was held that although the marriage was not strictly in accordance with
Mohammadan Law, she was entitled to relief u/S. 488, Cr.P.C., 1898.
In Smyth v. Mrs. Hannah Smyth, , a Roman Catholic married a woman
professing Jewish faith. It was held that the marriage was not invalid so as to render
an order of maintenance passed by a Criminal Court illegal.
In Sethurathinam Pillai v. Barbara Dolly @ Sethurathinam, (1970) 1
SCWR 589, the Madras High Court upheld the marriage between a Christian
woman and a Hindu male as also the claim for maintenance on the ground that there
is nothing in Hindu Law forbidding a marriage between a Hindu and non-Hindu.
On appeal, the order granting maintenance by the Madras High Court was
confirmed by the Supreme Court observing :
"We do not think it necessary in this case to decide the case on the
merits. The order passed in an application filed u/S. 488, Cr.P.C. is a
summary order which does not finally determine the rights and
obligations of the parties thereto. It is an order made in a proceeding
under a provision enacted with a view to provide a summary remedy
for providing maintenance, and for preventing vagrancy. The decision
of the Criminal Court that there was a marriage between Barbara and
Sethurathinam and that it was a valid marriage will not operate as
decisive in any civil proceeding between the parties for determining
those questions."
In view of the above, it cannot be held that the marriage between the
husband and the wife, who are Hindu and Christian respectively, is not valid for
purposes of granting the relief u/s 125 Cr.P.C. At the same time, it is open to the
aggrieved party to seek appropriate remedy from the Civil Court for a declaration
that the marriage is void or voidable, inasmuch as the finding of the Criminal Court
in these summary proceedings is neither conclusive nor decisive in the civil
proceedings that may be initiated.
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Misc. No. M-25780 of 2015
Date of decision : 03.06.2016
Robin
versus
Jasbir Kaur
CORAM:- HON'BLE MRS. JUSTICE ANITA CHAUDHRY
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