Judgement
R. M. DOSHIT, J. :- This Appeal preferred under Section 19 of the Family Courts Act, 1984 arises from the judgment and order dated 30th March, 2009 passed by the Family Court, Ahmedabad in Family Suit No.1307/2007.
2. The facts undisputed are that the appellant, a Christian, had married the respondent, a Hindu, on 29th April, 2002. The marriage was solemnized according to the Hindu rituals. The marriage was registered under the Hindu Marriage Act. A baby girl was born to the appellant and the respondent on 2nd May, 2003. The respondent deserted the appellant on 24th April, 2006. The appellant filed the above referred Family Suit No. 1307/2007 under Section 11 of the Hindu Marriage Act, 1955 (hereinafter referred to as "the Act of 1955") for a declaration that the marriage between the appellant and the respondent was void. It was alleged that at the time of her marriage to the appellant, the respondent was already married and the first marriage was subsisting.
3. The suit was contested by the respondent.
4. Considering the pleadings and the evidence on record, the Family Court held that the marriage in question was solemnized after following the Hindu rituals. The Court also believed that the respondent had married to one Ashish Govindbhai Surd in the year 1998; but, the said marriage was dissolved by divorce deed (Exh.36) before the marriage of the appellant and the respondent. The Court, therefore, refused to declare the marriage void as prayed for. Further, the Court below has held that the marriage between the appellant and the respondent was not valid and was not in consonance with Section 5 read with Sections 7 and 11 of the Act of 1955. The suit for declaration under the Act of 1955 was, therefore, not maintainable. Hence, the present Appeal.
5. Learned advocate Mr.Pardiwala has appeared for the appellant. He has submitted that indisputably the appellant, a Christian, had married the respondent, a Hindu lady, according to the Hindu rituals. Such marriage is a void marriage under Section 5 read with Sections 7 and 11 of the Act of 1955. The Court below, therefore, was required to pass decree for declaration as prayed for. In support of his submissions, Mr.Pardiwala has relied upon a judgment of the High Court of Andhra Pradesh in the matter of Bandaru (alias Gullipilli) Pavani v. Gullipilli Sowria Raj [Appeal against Order No.2024/1998, decided on 12th September, 2002 (Coram : Justice Madhav Bapat and Justice M. Narayana Reddy)]. He has submitted that in similar circumstances the High Court of Andhra Pradesh made order as under :
"It is not in dispute that the appellant is a Hindu and the respondent is a Christian by caste. There is no evidence on record to show that the appellant had adopted Christianity before she married the respondent. Therefore, we are of the considered view that there cannot be a valid marriage between the appellant-Hindu and the respondent-Christian according to the Hindu Vedic Rites. Therefore, the so-called marriage ceremonies allegedly gone through by the parties are not valid. Under these circumstances, we have no hesitation in holding that the marriage between the parties is void ab initio and, therefore, their marriage is declared as a nullity. The appeal is thus allowed. No costs."
6. The above order was challenged before the Honble Supreme Court. The Honble Supreme Court [2009(2) GLH 447] : (AIR 2009 SC 1085) upheld the judgment of the High Court. The Court observed that
"...As submitted by Mr. Rao, the Preamble itself indicates that the Act was enacted to codify the law relating to marriage amongst Hindu. Section 2 of the Act which deals with application of the Act, and has been reproduced hereinabove, reinforces the said proposition.... 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 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 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.....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 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."
7. In view of the above undisputed facts and the above settled position of law, we hold that the marriage between the appellant and the respondent was a nullity. The said marriage was void-ab-initio. The Court below has erred in non-suiting the appellant though it did find that the marriage between the appellant and the respondent was not a legal and valid marriage.
8. For the aforesaid reasons, we allow this Appeal. The impugned judgment and decree dated 30th March, 2009 passed by the Family Court, Ahmedabad in Family Suit No. 1307/2007 is quashed and set-aside. The Family Suit No. 1307/2007 is allowed. The marriage between the appellant and the respondent solemnized on 29th April, 2002 is declared to be null and void. The parties will bear their own cost.
Appeal allowed.