Court : Supreme Court of India
Brief : .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.
Citation :
, , , 2008(16 )SCALE109 ,
=IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2446 OF 2005
Gullipilli Sowria Raj ...Appellant
Vs.
Bandaru Pavani @ Gullipili Pavani ...Respondent
J U D G M E N T
ALTAMAS KABIR,J.
1. The only question which falls for determination
in this Civil Appeal by way of Special Leave is
whether a marriage entered into by a Hindu with
a Christian is valid under the provisions of
the Hindu Marriage Act, 1955.
2. The appellant, who is a Roman Catholic
Christian allegedly married the respondent, who
is a Hindu, on 24.10.1996, in a temple only by
exchange of `Thali' and in the absence of any
representative from either side. Subsequently,
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
