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LIST OF ABBREVIATIONS

cl. - Clause

CPC - Civil Procedure Code

hon. - Honorable

O. - Order

s. - Section

ss. - Sub section

v. - Versus

LIST OF CASES
Cases

Gulliplli Sowria Raj V. Bandaru Pavani Alias Gullipilli Pavani ........................................................... 6


Lata Singh v. State of U. P. ..................................................................................................................... 8
Smt. Neeta Kirti Desa v. Bino Samuel George ....................................................................................... 5

LIST OF STATUES
The Hindu Marriage Act, 1955.

The Special Marriage Act, 1955.

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LIST OF CONTENTS
LIST OF ABBREVIATIONS ................................................................................................ 1
LIST OF CASES .................................................................................................................... 1
LIST OF STATUES ............................................................................................................... 1
INTRODUCTION .................................................................................................................. 3
RESEARCH METHODOLOGY ........................................................................................... 3
RESEARCH QUESTIONS .................................................................................................... 4
FACTS OF THE CASE ......................................................................................................... 4
ISSUES BEFORE THE COURT ........................................................................................... 5
ARGUMENTS BY THE APPELLANT ................................................................................ 5
ARGUMENTS BY THE RESPONDENT............................................................................. 5
JUDGEMENT ........................................................................................................................ 6
ANALYSIS OF THE JUDGEMENT .................................................................................... 8
CONCLUSION .................................................................................................................... 10
BIBLIOGRAPHY ................................................................................................................ 11

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INTRODUCTION
Marriage is considered an institution. It is not called an arrangement or just a system or an
organization. It is an institution. The word institution means that there is (from the PAEI
code, for the uninitiated) to be followed and respected. It means rules of conduct: who does
what, when, how to follow etc1. There were rules of conduct transmitted from one generation
to the other, culturally, as to what is the role of the mother, what of the father, what of the
first born and what of the last born and even the role of the grandparents2.

The structure of the project is as follows – the brief facts and historical background of the
case are given to throw light on the evolution of case, then there are claims by both the
parties thereafter the researcher has analysed the decision of the panel, afterwards the
researcher has concluded with some comments.

RESEARCH METHODOLOGY
In order to achieve the prescribed objectives of the study, doctrinal method of research
methodology is adopted and the issues under study are examined in a comprehensive manner.
The various aspects of the study are reflected in the substantive sections of this research
work. The study of concepts will involve:

1. An analysis of the features of the Indian legal system pertaining to resolve the
matrimonial disputes among the parties.
2. An attempt to supplement and update the existing legal literature to promote more
intensive research in this area of law under study.

The doctrinal adopted for the research work and the study on the concerned concepts is both
analytical as well as descriptive. The researcher has put efforts to critically examine the
primary sources like books, articles, journals and case laws and e-resources. Also, the latest
information in the field of contract has helped the researcher to explore the subject through
various dimensions and taken into consideration the dynamism of this area.

1
Available at http://www.ichakadizes.com/the-institution-of-marriage/ last visited on 15 August 2018.
2
Joel Budd, THE STATE OF MARRIAGE AS AN INSTITUTION, Available at
https://www.economist.com/special-report/2017/11/25/the-state-of-marriage-as-an-institution last visited on
August 15th 2018.

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RESEARCH QUESTIONS
1. What is cruelty as incorporated in the sub-section i(a) of section 13 of the Hindu
Marriage Act 1955?
2. What are the grounds which declare a Hindu Marriage as null and void?
3. Was the judgement just and fair?

FACTS OF THE CASE


The appellant original petitioner-wife had filed the petition seeking decree of nullity of
marriage and alternatively claimed the decree of divorce. In nutshell, the appellant had
approached with the case that on 13.1.1999, she was married to respondent as per Hindu rites
and rituals. At the time of marriage the appellant was Hindu and respondent was Christian.
After the marriage they continued to profess their respective religion. At the time of filing of
the petition also they continue to practice and follow their respective religion3.

The appellant had filed petition under Section 11 of Hindu Marriage Act, 1955, seeking
decree of nullity on the ground that their marriage was null and void as same being in
contravention of essential condition of valid marriage provided under Section 5 of Hindu
Marriage Act. By way of alternate relief, the appellant had claimed decree of divorce under
Section 13(1) (i-a) of Hindu Marriage Act, on the ground of cruelty. Since the learned Judge
of Family Court has rejected the petition of the appellant in exercise of powers under Order 7
Rule 11 of Civil Procedure Code, it is not necessary for us to state in detail the facts pleaded
in the petition as well as the case of the respondent. Being aggrieved by the order of rejection
of petition, the appellant had appealed to the Bombay High Court.

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2014 DMC 1 124

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ISSUES BEFORE THE COURT
1. Whether the provisions of the Hindu Marriage Act 1955 can be invoked by the
petitioner to claim any relief?

ARGUMENTS BY THE APPELLANT


The learned advocate for the appellant Rahul Nerlekar contended that the consent to the
marriage was obtained by fraud and hence, section 12(c) of the Hindu Marriage Act would
come into play. He submitted that the petition ought to have been preferred under section
12(c) of the Hindu Marriage Act. He also contended that the marriage under the Hindu
Marriage Act 1955 can be performed only between two Hindus and if anyone of the parties or
both are not Hindus, the marriage would be a nullity.

ARGUMENTS BY THE RESPONDENT


The Hindu marriage act is only applicable where both the parties are Hindus. Here it is a
special case where the respondent is Christian so provisions which are applied should be of
the Special Marriage Act, 19554. From the beginning the petitioner is represented as Christian
so the applicability of the provisions of the Hindu Marriage Act 1955 cannot be sustained.

4
Ramashrita Shukla, Christian Marriage and Registration procedure in India, Available at
http://www.helplinelaw.com/family-law/CTMRR/christian-marriage-and-registration-procedure-in-india.html
last visited on August 16th 2018.

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JUDGEMENT
The judges have heard the learned advocates appearing for the appellant as well as the
respondent. After carefully scrutinizing the impugned order in the light of the pleadings of
the parties and the relevant provisions of the Hindu Marriage Act, 1955, for the reasons
mentioned hereinabove, we are of the view that the order impugned by way of this appeal is
perfectly legal and calls for no interference in exercise of appellate jurisdiction, by this Court.

The appellant is seeking decree of nullity of marriage under section 11 of the Hindu Marriage
Act5 which talks about the nullity of marriage.

Section 2 of the Hindu Marriage Act clearly states that the petition can be filed by the parties
who are both Hindus. Section 5 of the Hindu Marriage Act provides the conditions for a
Hindu marriage. In the beginning itself, it is provided that the marriage must be solemnized
between any two Hindus. The appellant herself has stated that the respondent was not a
Hindu at the time of marriage or even thereafter. If this condition is not fulfilled and there
was no contravention of provisions laid down under section 5 of the Hindu Marriage Act, the
Family Court was right in observing that the appellant has no right to file such a petition.

The issue raised in this petition remains no more res integra as the Division Bench of this
Court in the case of Smt. Neeta Kirti Desa v. Bino Samuel George6, has laid down that when
both the spouses are Hindus, they are regulated under the Hindu Marriage Act. If one of the
parties to such marriage is not Hindu the provisions of Hindu Marriage Act, 1955 cannot be
invoked to seek the remedy under the said Act.

In the present case, there is no contravention of the clauses (i), (iv) and (v) of section 57.

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Void marriages. —Any marriage solemnised after the commencement of this Act shall be null and void and
may, on a petition presented by either party thereto 11 [against the other party], be so decla
red by a decree of nullity if it contravenes any one of the conditions specified in clauses
(i) , (iv) and (v) of section 5.
6
(2009) 1 SCC 714.
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Conditions for a Hindu marriage. —A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely
(ii) at the time of the marriage, neither party—
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such
an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity.
(iv)the parties are not within the degrees of prohibited relationship unless the custom or usage governing each
of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a
marriage between the two.

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The judges consider the undisputed facts then fact is not in dispute that at the time of
marriage the appellant was Hindu by religion and respondent was Christian. They performed
marriage as per Hindu rites and rituals. It is also not in dispute that after their marriage, they
continue to practice and profess their respective religion. Therefore, the first and foremost
question falls for our consideration is whether at all the provisions of Hindu Marriage Act,
1955 can be invoked by petitioner to claim any relief. In this context it is useful to refer the
provision of section 2 of Hindu Marriage Act, 1955, which provides for applicability of the
provisions of the said Act.

In Gulliplli Sowria Raj V. Bandaru Pavani Alias Gullipilli Pavani 8 the plain reading of
section 2 explicitly provides that the provisions of Hindu Marriage Act, 1955 can be availed
and applicable when both the spouses are Hindus and their marriage is performed as per
Hindu rites and rituals and the marriage is a valid marriage within the meaning of section 5 of
Hindu Marriage Act. It is also necessary that at the time of filing petition, both the spouses
are Hindus by religion except for seeking remedy of divorce under section 13(1)(c) of the
Hindu Marriage Act i.e. on the ground of person ceases to be Hindu due to conversion to
another religion.

In to present case, according to the appellant, at the time of performing the marriage with the
respondent, the appellant was Hindu by religion and the respondent was Christian. They
performed the marriage as per the Hindu rites and rituals. After their marriage in the year
1999, they continued to profess their respective religion till filing of this petition. The
petitioner is professing Hindu religion whereas the respondent continued to practice and
profess Christian religion. Thus at the time of their marriage as well as at the time of filing of
petition, both petitioner and respondent were not Hindus by religion and same position is
continued till filing of petition.

The surname of the respondent is ‘Pinto’ which is distinctly a Christian surname and can
never be a Hindu surname. Not only has the appellant not averred in the petition that she did
not know at the time of the marriage that the respondent was not a Hindu but from the fact
that surname of the respondent is ‘Pinto’ and other facts, it was clearly to the knowledge of
the appellant that the respondent was a Christian at the time of the marriage. Thus, it is too
late in the day to contend that her consent to the marriage was obtained by fraud and that the
respondent had concealed from her the fact that he was a Christian.

8
1998 (1) Bom. C.R 263

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In view of the conclusion to which the judges have reached, the judges are of the view that
order passed by the learned Judge of the Family Court is perfectly legal and calls for no
interference in exercise of appellate jurisdiction.

In the result, the appeal is dismissed with no order as to costs.

ANALYSIS OF THE JUDGEMENT


The case was proficiently resolved by the learned judge Lawrence J. in the trial court. But as
one of the parties is always not satisfied with the rulings so they appeal to the higher courts.
This might be considered as a white elephant. There is no certainty about this statement
because in all the cases the condition is not same. In this case the matter was resolved by the
learned judge. But all the judges are not skilled in delivering the judgements. This can be so
because of delinquency, burden or some other reasons. The judges in both the levels
examined the problem correctly and gave their judgement. They consider all the aspects
which are there in the sections 2, 5, 11 and 13 of the Hindu Marriage Act 1955. They were
knack in ascertaining the scope of these sections. The negligence of the learned advocate for
the petitioner is also obvious in this case as he filled the petition under those provisions which
were not at all applicable in this case. Only the Hindus marriages between the people which
are defined in the section 2 of the Hindu Marriage Act 1955 are governed by this Act. There
is Special marriage Act to govern particularly those type of marriages in which both the
parties are of different religion.

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CRITICAL COMMENT

The Hindu Marriage Act, 1955 was indeed a progressive Act if we keep in mind the year of
its enactment. It gives almost equal rights to the wife and the husband. The wife can file an
application for restitution of conjugal rights and the husband can ask for maintenance from
the wife in appropriate cases. However, this Act is a perfect example of how an equal law on
paper can be applied in a discriminative manner in practice. For instance, what amounts to
cruelty in the case of husbands and wives respectively differs according to the expected roles
they are supposed to carry out in society. This conundrum of applying the same law
differently can be rectified only by bringing about a change in the way people think and not
by changing the law and it has to be conceded that the change is happening gradually. In Lata
Singh v. State of U. P.9 the judge precisely incorporated that the caste system is a curse on the
nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when
we have to be united to face the challenges before the nation unitedly. Hence, inter-caste
marriages are in fact in the national interest as they will result in destroying the caste system.
However, disturbing news are coming from several parts of the country that young men and
women who undergo inter-caste marriage, are threatened with violence, or violence is
actually committed on them. In our opinion, such acts of violence or threats or harassment are
wholly illegal and those who commit them must be severely punished. No one either
individually or collectively has the right to interfere in the marriage of two consenting adults.
The SC bench told the Khap Panchayats not to assume the role of a despot in determining the
legality of such matters. The courts will consider the Gotra tradition todetermine the legality
of such marriage10. In one of its rulings the Punjab and Haryana High Court directed the
officials to change their mindset towards inter religion/inter caste marriage. It also told to not
obstruct the inter faith marriage. Ruling on an inter-faith marriage case of a Hindu-Muslim
couple, the Punjab and Haryana High Court has said that officialdom must not be seen
“raising eyebrows and laying snares and landmines” in such cases. The procedure for a court
marriage, it has said, “must reflect the mindset of the changed times in a secular nation
promoting inter-religion marriages”.11

9
AIR 2006 SC 2522
10
Dhananjay Mahapatra, NO ONE HAS RIGHT TO INTERFERE IF TWO ADULTS GET MARRIED,
published on 6th February 2018.
11
Available at https://indianexpress.com/article/india/change-your-mindset-dont-obstruct-inter-faith-marriage-
hc-to-officials-5276452/ last visited on 6 September 2018.

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CONCLUSION
The bench was dexterous in giving the judgement. They had lucidly considered the issues and
given the rulings. They did not refer the Special Marriage Act. If they had refrred it then it
would be easier for them to come to the conclusion. The society is dynamic and the people
are leading towards the transition. The society is accepting inter caste marriage. There is no
definite data available on inter-caste marriages, since the Centre did not release the caste data
from the Socio-Economic and Caste Census. However, studies based on sample surveys show
that caste rigidity in marriage continues to be deeply entrenched. Hindu law relating to family
has evolved over the years and has become a lot more egalitarian than it was in the past and
the attempt of this article was definitely not to overlook positive amendments in the law or
progressive decisions given by the courts. The aim was to throw light on the things that still
need change and that need to be relooked at from the perspective of gender equality, to argue
that we cannot sit satisfied with what has been done and to iterate that we need to look
forward and recognise what is still unfinished.

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BIBLIOGRAPHY
ARTICLES

Dhananjay Mahapatra, NO ONE HAS RIGHT TO INTERFERE IF TWO ADULTS GET


MARRIED

Ramashrita Shukla, CHRISTIAN MARRIAGE AND REGISTRATION PROCEDURE IN


INDIA

Joel Budd, THE STATE OF MARRIAGE AS AN INSTITUTION

BOOKS

Sir Dinshaw Fardunji Mulla, MULLA HINDU LAW, Published by Lexis Nexis, 23rd Edition.

Prof. G. C. V. Subba Rao, FAMILY LAW IN INDIA, Published by Narender Gogia and
Company, Tenth Edition.

Lawmann’s, SPECIAL MARRIAGE ACT, 1954 (Act No. 43 of 1954), Kamal Publishers,
New Delhi.

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