By Dr. K. Shivaram, Ajay R. Singh, Advocates
New Page 1
2 Hindu Marriage : A marriage under Hindu
Marriage Act, 1955 can be entered into by two Hindus : Hindu Marriage Act,
1955.
The issue involved in the instant case is as
under: Whether a marriage entered into by a Hindu with a Christian is valid
under the provisions of the Hindu Marriage Act, 1955 ?
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 u/s.8 of
the Hindu Marriage Act, 1955.
Soon thereafter, on 13-3-1997, the
respondent-wife filed a petition before the Family Court u/s.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.
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 under the 1955 Act is void ab
initio and that the marriage was, therefore, a nullity.
The appellant filed a Special Leave Petition out
of which the present appeal arises. The argument advanced on behalf of the
appellant, that the Hindu Marriage Act, 1955 does not preclude a Hindu from
marrying a person of some other faith.
The Court observed that 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 u/s.8 thereof.
The provisions of S. 5 of the 1955 Act which
prescribes the conditions for a Hindu marriage are as follows :
“A marriage may be solemnised between any two
Hindus, if the following conditions are fulfilled, namely : . . . .”
The Preamble to the Hindu Marriage Act, 1955,
reads as follows : “An Act to amend and codify the law relating
to marriage among Hindus.”
The Court observed that the Preamble itself
indicates that the Act was enacted to codify the law relating to marriage
amongst Hindus. S. 2 of the Act which deals with application of the Act, and
has been reproduced hereinabove, reinforces the said proposition.
S. 5 of the Act thereafter also makes it clear
that a marriage may be solemnised 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, does not make the provision of S. 5
optional. On the other hand, it in positive terms, indicates that a marriage
can be solemnised 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 solemnised. The expression ‘may’ used
in the opening words of
S. 5 was 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. S. 7 of the 1955 Act is to be read along
with S. 5 in that a Hindu marriage, as understood u/s.5, could be solemnised
according to the ceremonies indicated therein. Accordingly the appeal was
dismissed.
[Gullipilli Sowria Raj v. Bandaru Pavani,
Civil Appeal No. 2446 of 2005, dated 4-12-2008 Supreme Court. (Source :
itatonline.org) 2008 (16) SCALE 109]
