=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

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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

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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

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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.

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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.

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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

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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

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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

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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.”

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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

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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

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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

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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

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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

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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.

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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

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