Gullipilli Sowria Raj
Vs. Bandaru Pavani @ Gullipili Pavani  INSC 2088 (4 December 2008)
=IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2446 OF 2005 Gullipilli
Sowria Raj ...Appellant Bandaru Pavani @ Gullipili Pavani ...Respondent
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.
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".
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.
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
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.
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.
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 :..."
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.
Lalit then took us through the provisions of Section 11 of the 1955 Act, which
deals with void marriages and indicates as follows :
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
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
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.
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.
Rao also referred to Section 2 of the above Act which reads as follows:
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
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.
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
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.
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
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.
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
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.
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.
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".
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.
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-fulfillment thereof would not permit a marriage under the Act between two
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
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
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.
appeal is accordingly dismissed.
will, however, be no order as to costs.
place on record our appreciation of the assistance provided by Mr. Lalit to
help us to arrive at a decision in this appeal.