Flg. Officer Rajiv
Gakhar Vs. Ms. Bhavana @ Sahar Wasif
J U D G M E N T
P. Sathasivam, J.
1.
Leave
granted.
2.
This
appeal is directed against the final judgment and order dated 01.09.2009 passed
by the High Court of Punjab & Haryana at Chandigarh in FAO No. 72-M of 2006
(O & M) whereby the High Court allowed the appeal filed by the respondent herein
and set aside the judgment and decree passed by the Additional District Judge-I,
Faridabad in favour of the appellant herein.
3.
Brief
facts:
a. The appellant is a
pilot with the Indian Air Force and was posted as Pilot Officer at Hakimpet (Hyderabad)
in April, 1997. In the last week of April, 1997, the appellant was traveling by
train from Delhi to Hyderabad wherein the respondent also happened to be
traveling and at which time she introduced herself as Bhavana and claimed to be
the Vice Principal of St. Peters Convent, Vikas Puri, New Delhi and a journalist.
During the conversation, respondent claimed to be a spinster, aged 27 years and
disclosed that she was traveling to Hyderabad in connection with a book she was
writing on Anglo Indians. Much later the appellant learnt that she had visited Hyderabad
for appearing in her B.A. examination from Osmania University.
b. Subsequently, both of
them met at Delhi in the first week of July, 1997 and March, 1998 and ultimately
the respondent tricked the appellant into marrying her on 28.11.1999 at Arya Samaj
Mandir, Rathkhana, Bikaner, Rajasthan as per Hindu rites and ceremonies. The respondent
also gave a written affidavit to the Arya Samaj Mandir that she was a Hindu, a spinster
and was never married before. (c) In January, 2000, the respondent's father met
the appellant at Sona Rupa Restaurant in Nehru Place, New Delhi and it emerged during
the conversation that the respondent was a Muslim and her actual name was Sahar
Wasif and her previous marriage had taken place according to Muslim Law with a
Muslim-Wasif Khalil after her conversion to Islam and had two children out of the
said wedlock, namely, daughter Heena (13 years) and son Shaz (11 years). The appellant
was totally shocked and devastated to hear all this. On 22.07.2000, an FIR
being 690/2000 was registered against the respondent and her brother under Sections
406, 419 and 420 of the Indian Penal Code (in short `the IPC') at the Kalkaji
Police Station, New Delhi.
c. The appellant,
thereafter, filed Suit No. 87 of 2000 in the Court of Addl. District Judge-I, Faridabad,
under Sections 5 and 12 of the Hindu Marriage Act, 1955 (in short `the Act')
seeking dissolution of marriage solemnized on 28.11.1999 with the respondent at
Arya Samaj Mandir, Bikaner. Before the trial Court, the appellant narrated as to
how he was deceived and cheated by the respondent and also claimed that the
parties to the petition have been living separately from the date of marriage
itself and have had no cohabitation and nor was there any consummation for
which reason no issue was born out of the wedlock.
d. The trial Court, by order
dated 07.03.2006, declared the marriage between the parties to the petition a nullity
and also ordered the appellant to pay Rs. 2,000/- per month as permanent alimony
to the respondent towards her maintenance.
e. Aggrieved by the said
order, the respondent preferred an appeal before the High Court of Punjab &
Haryana whereby the learned Single Judge vide his order dated 01.09.2009
allowed the appeal of the respondent and set aside the judgment and decree
passed by the Trial Court. Aggrieved by the said order, the appellant has preferred
this appeal by way of special leave before this Court.
1.
2.
3.
4.
Heard
Mr. Sanjay Parikh, learned counsel for the appellant-husband and Mr. P. N. Misra,
learned senior counsel for the respondent-wife.
5.
It
is the grievance of the appellant that the respondent by using emotional coercion,
impersonation, misrepresentations, fraud and cheating tricked the appellant to marry
her on 28.11.1999 at Arya Samaj Mandi, Rathkhana, Bikaner. It is also his claim
that both of them married as per Hindu rites and ceremonies. The respondent
also gave a written affidavit to the Arya Samaj for the performance of the marriage
and in that affidavit she claimed that she was a Hindu, a spinster and was not married
before. It is also his claim that after marriage, during interaction with her father
and relatives, he came to know that the respondent's actual name was Sahar Wasif
and that she had converted to Islam and was married to a muslim, she had 2 children
out of her previous wedlock, namely, Heena (13 years) and Shaz (11 years). Though
the respondent has denied the claim of the appellant, the Court of the first instance,
namely, Additional Sessions Judge accepted the case of the appellant and declared
the marriage between the appellant and the respondent a nullity and directed the
appellant to pay a sum of Rs. 2,000/- per month as permanent alimony to the respondent
towards her maintenance. When the said order was challenged by the respondent-wife,
the High Court, by impugned judgment, allowed her appeal and dismissed the
petition filed by the appellant-husband.
6.
Learned
counsel for the appellant by drawing our attention to various factual details and
the findings arrived at by the trial Court submitted that the High Court committed
an error in dismissing the husband's petition to declare the marriage as nullity.
He also relied on decisions of this Court in Yamunabai Anantrao Adhav vs. Anantrao
Shivram Adhav and Another (1988) 1 SCC 530, M. M. Malhotra vs. Union of India &
Ors. (2005) 8 SCC 351 and Gullipilli Sowria Raj vs. Bandaru Pavani @ Gullipili
Pavani (2009) 1 SCC 714 in support of his claim. On the other hand, learned
senior counsel for the respondent-wife by taking us through oral and documentary
evidence led in before the courts below submitted that there was no misrepresentation
or cheating on the part of the respondent and in fact the appellant was aware
of all the details and before marriage with the appellant, the respondent-wife had
undergone Shudhikaran Ceremonies and she was deemed to have become a Hindu after
such ceremonies. In other words, according to him, the respondent was not barred
from contracting marriage with a Hindu after performing Shudhikaran.
7.
Chapter
IV of the Hindu Marriage Act, 1955 (in short `the Act') deals with nullity of marriage
and divorce. Section 11 says that any marriage solemnized after the commencement
of this Act shall be null and void and may, on a petition presented by either
party thereto, or 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 of the Act. Section 12 speaks about voidable marriages. According
to this Section, any marriage solemnized, whether before or after the commencement
of this Act, shall be viodable and may be annulled by a decree of nullity on any
of the following grounds, namely, a) that the marriage has not been consummated
owing to the impotence of the respondent, or b) that the marriage is in
contravention of the condition specified in clause (ii) of Section 5; or c)
that the consent of the petitioner/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) that the respondent was at the time of the
marriage pregnant by some person other than the petitioner. Chapter II deals with
Hindu marriages and Section 5 prescribes conditions for a Hindu marriage. The section
begins with saying that a marriage may be solemnized between any `two Hindus' subject
to fulfilling the conditions prescribed therein. It is clear that Hindu marriage
if is to be solemnized under Section 5 then both the parties of such marriage
must be Hindus.
8.
Though
the trial Court granted decree holding that the marriage between the appellant and
the respondent is a nullity, the materials placed by the respondent-wife in the
form of oral and documentary evidence clearly show that there was no
contravention of any of the provisions, more particularly, Section 5 of the Act.
The respondent was examined before the trial Court as RW1. In her lengthy statement,
she explained all the details including the fact that how she converted to Islam
to marry a muslim and after divorce, by performing Shudhikaran ceremonies, she became
a full fledged Hindu and there is no bar in marrying Hindu as per Hindu rites
and ceremonies. She also explained that the appellant was aware of all these details
and with full knowledge and consent, marriage of the appellant and the respondent
was performed as per Hindu rites and ceremonies. Mr. P. N. Misra, took us through
the entire evidence of RW1 in order to substantiate the above statement. In her
evidence, she explained in detail that her marriage with Wasif Khalil was a love
marriage wherein her parents had also consented. She further deposed that she
converted to Muslim religion only at the time of marriage with Wasif Khalil
which was solemnized in Mayur Vihar, Delhi in a Masjid. At the time of
marriage, parents of both the parties to marriage were present. She also explained
that at the time when she had obtained divorce from Wasif by his saying Talaq
three times in March, 1995, her younger brother was present. She also admitted that
she was not having any documentary evidence for the same. She further explained
that after divorce with her Muslim husband, she had changed her name from Sahar
Wasif to Bhavana which was her original name. Immediately after the said divorce,
according to her, she had stated using her original name Bhavana and she had undergone
Shudhikaran ceremonies for conversion to Hinduism just after her divorce from
her previous muslim husband.
9.
In
support of the stand taken by Respondent-wife as RW1, one K.V. Krishnayya, aged
about 60 years, resident of Ram Nagar, Market Lane, Hyderabad was examined as RW2
by way of an affidavit. He explained that the respondent-Bhavana came to his
house in the company of his daughter K. Aparna in the month of April 1997. On one
occasion, he explained that both Rajiv Gakhar and Bhavana came to his house and
on making enquiries Bhavana disclosed that she is a born Hindu but she married
to a Muslim and now she is a divorcee as she was divorced by her Muslim husband
by saying Talaq three times in March, 1995 and since then she again returned to
her previous religion (Hindu) after obtaining the Shudhikaran ceremonies by calling
a Pandit and by chanting Mantras. She also disclosed that she is having two children
from her Muslim husband. RW2 also enquired and verified the details about the
appellant-Rajiv Gakhar. In other words, according to RW2, the appellant was
also aware of all the details about RW1 including her religion even before
their marriage.
10.
One
Babu Lal, aged about 65 years, an Astrologer/Karamkandi, resident of Sector 8, Faridabad
was examined as RW4. He explained the details about the Shudhikaran ceremonies that
were performed to the respondent. According to him, it was done about 7 years ago.
He explained that Shudhikaran ceremonies were performed by him on the eve of
Puranmasi preceding Holi. After recollection he mentioned that it was around
March, 1997. He asserted that after performance of ceremonies, she is deemed to
have become a Hindu. He also denied the suggestion that pursuant to marriage of
Bhavana who was earlier a Hindu with a Muslim and having two children, she
could not have returned to a Hindu fold. He also asserted that Shudhikaran of Bhavana
and her two children were carried out simultaneously on the same date and time and
her parents were also present on this occasion.
11.
Another
important witness examined on the side of the respondent is her brother Vibhu
Ranjan as RW6. He explained that Bhavna Gakhar is his real elder sister and they
are Brahmins/Hindu by religion and the birth name of his sister was Bhavana
Sharma. He also explained that his sister first married with a Muslim boy and subsequently
after Talaq, thereby her marriage with Muslim came to an end permanently forever.
He also elaborated and explained that in the month of March, 1997 on the eve of
Holi festival the Shudhikaran ceremonies were performed in their house through
Pandit Babu Lal (RW4). He further explained that Abhishek by gangajal was done apart
from chanting of Mantras necessary for Shudhikaran. Thus, according to him, Bhavana
returned to her original religion, i.e, Hindu and became eligible to enter into
marriage with any Hindu male.
12.
The
analysis of the assertion of the respondent as RW1 and the evidence of RW2, RW4
and RW6 clearly show that the respondent-wife established that before the marriage
with the appellant she became a full-fledged Hindu by performing Shudhikaran ceremonies
in the manner and being followed by Hindu custom and all these material facts
were known to the appellant at the time of the marriage. In view of these factual
details, the decisions relied on by the learned counsel for the appellant are
not applicable to the case on hand.
13.
Mr.
Parikh heavily relied on Gullipilli Sowria Raj (supra). The question in that decision
was whether a marriage entered into by a Hindu with a Christian is valid under the
provisions of the Hindu Marriage Act, 1955. After finding that the appellant-husband
therein was a Roman Catholic Christian, 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 view of the said factual scenario, as
rightly observed by the High Court, the ratio in Gullipilli (supra) is not
applicable to the case on hand.
14.
Inasmuch
as the respondent-wife established her claim that on the date of marriage with
the appellant she was a Hindu and the same is permissible under Section 5 of
the Act, we agree with the conclusion arrived at by the High Court and reject
the argument of the counsel for the appellant.
15.
In
view of the above discussion and conclusion, we find no merit in the appeal. Consequently,
the same is dismissed.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(H.L. GOKHALE)
NEW
DELHI;
MAY
11, 2011.
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