FLG. OFFICER RAJIV GAKHARversusMS. BHAVANA @ SAHAR WASIF

                        (2011] 6 S.C.R. 372


A                FLG. OFFICER RAJIV GAKHAR
                                v.
                MS. BHAVANA @ SAHAR WASIF
                 (Civil Appeal No. 4278 of 2011)
                           MAY 11, 2011
B
           [P. SATHASIVAM AND H.L. GOKHALE, JJ.]

       Hindu Marriage Act, 1955: ss. 5, 12 - Divorce petition filed
  by appellant-husband uls.5 for declaring his marriage nullity
c on the ground of cheating and misrepresentation by the
  respondent-wife - Allegation in the petition against wife was
  that she did not disclose to the appellant prior to their
  marriage ·the fact of her conversion to Islam and previous
  marriage with a muslim, about the birth of two children out of
D said wedlock and her divorce from him - Trial court granted
  divorce - High Court set aside the divorce decree - On
  appeal, held: The analysis of the assertion of the wife and
  witnesses clearly showed that before marriage, the respondent
  had become a full-fledged Hindu by performing Shudhikaran
E ceremonies in the manner followed by Hindu custom and all
  the material facts were known to the appellant at the time of
  the marriage - 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 uls. 5 of the Act, the order
F of High Court is upheld.

      The appellant was a pilot with the Indian Air Force.
  In April, 1997, while he was traveling in a train, he met the
  respondent who introduced herself as "Bhavana". The
  case of the appellant was that during the conversation,
G the respondent claimed to be a spinster. Subsequently,
  both of them met in Delhi and the respondent tricked the
  appellant into marrying her on 28.11.1999 at Arya Samaj
  Mandir as per Hindu rites and ceremonies. The

H                                372
  · FLG. OFFICER RAJIV GAKHAR v. BHAVANA @           373
                  SAHAR WASIF
respondent gave a written affidavit to the Arya Samaj A
Mandir that she was a Hindu, a spinster and. was never
married before.

     In January 2000, the appellant met the father of the
respondent and during conversation, the appellant found 8
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 'WK' after
her conversion to Islam and she had two children out of
the said wedlock. On 22.7.2000, an FIR was registered C
against the respondent and her brother under Sections
406, 419 and 420, IPC. The appellant filed a suit under
Sections 5 and 12 of the Hindu Marriage Act, 1955
seeking dissolution of marriage. Before the trial Court,
the appellant narrated as to how he was deceived and
cheated by the respondent and also claimed that the D
parties to the petition had 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.           ·
                                                            E
     The trial court declared the marriage between the
parties to the petition a nullity and also ordered the
appellant to pay ?2000/- per month as permanent alimony
to the respondent towards her maintenance. On appeal,
the High Court set aside the judgment of the trial court. F
The instant appeal was filed challenging the order of the
High Court.

    Dismissing the appeal, the Court
     HELD: 1. Chapter IV of the Hindu Marriage Act, 1955 G
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 H
    374     SUPREME COURT REPORTS              [2011] 6 S.C.R.

A 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 voidable and may
B 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,
  orb) that the marriage is in contravention of the condition
  specified in clause (ii) of Section 5; or c) that the consent
c 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
0
  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
E marriage if is to be solemnized under Section 5 then both
  the parties of such marriage must be Hindus. [Para 7]
  [379-H; 380-A-E]

       2. Though the trial court granted decree holding that
  the marriage between the appellant and the respondent
F is a nullity, the materials placed by the respondent-wife
  in the form of oral and documentary evidence clearly
  showed 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.
G In her lengthy statement, she explained all the details
  including the fact how she converted to Islam to marry a
  muslim and after divorce, by performing Shudhikaran
  ceremonies, she became a full fledged Hindu and there
  was no bar in marrying Hindu as per Hindu rites and
H ceremonies. In her evidence, she explained in detail that
   FLG. OFFICER RAJIV GAKHAR v. BHAVANA @             375
                SAHAR WASIF
her previous marriage with 'WK' was a love marriage          A
wherein her parents had also consented. She further
deposed that she converted to Muslim religion only at the
time of marriage with WK' which was solemnized in
Mayur Vihar, Delhi in a Masjid. She also explained that at
the time when she had obtained divorce from WK' by his       B
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'         c
to "Bhavana" which was her original name. Immediately
after the said divorce, according to her, she had started
using her original name "Bhavana" and she had
undergone Shudhikaran ceremonies for conversion to
Hinduism just after her divorce from her previous muslim     D
husband. 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. [Para
8] [380-F-H; 381-A-D]
                                                             E
     3. The analysis of the assertion of the respondent as
RW1 and th~ evidence of RW2, RW4 and RW6 clearly
showed that the respondent-wife established that before
the marriage with the appellant she became a full-fledged
Hindu by performing Shudhikaran ceremonies in the            F
manner and being followed by Hindu custom and all
these material facts were known to the appellant at the
time of the marriage. 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                G
permissible under Section 5 of the Act, the conclusion
arrived at by the High Court was correct. [Paras 12, 14]
[382-H; 383-A-B-E]
    Yamunabai Anantrao Adhav vs. Anantrao Shivram
                                                             H
    376      SUPREME COURT REPORTS                [2011) 6 S.C.R.


A Adhav and Another 1988 (2) SCR 809 = 1988 (1) SCC 530;
  M. M. Malhotra vs. Union of India & Ors. 2005 (3) Suppl.
  SCR 1026 = 2005 (8) SCC 351; Gullipilli Sowria Raj vs.
  Bandaru Pavani @ Gullipili Pavani 2008 (17) SCR 35 =
  2009 (1) sec 714 - held inapplicable.
B                           Case Law Reference:
          (1988) 2 SCR 809           held inapplicable    Para 6
          (2005) 3 Suppl SCR 1026 held inapplicable       Para 6
C         (2008) 17 SCR 35           held inapplicable    Para 6
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    4278 of 2011.

      From the Judgment & Order dated 1.9.2009 of the High
D Court of Punjab and Haryana at Chandigarh in FAQ No. 72 of
  2006.

         Sanjay Parikh, Mamta Saxena, Soumya Ray, A.N. Singh,
    Anitha Shenoy for the Appellant.
E
         P.N. Misra Rupansh Prohit and Kamal Mohan Gupta for
    the Respondent.

          The Judgment of the Court was delivered by

F         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 FAQ No. 72-M of 2006 (Q & M)
  whereby the· High Court allowed the appeal filed by the
G 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:
H
   FLG. OFFICER RAJIV GAKHAR v. BHAVANA @                   377
        SAHAR WASIF [P. SATHASIVAM, J.]
      (a) The appellant is a pilot with the Indian Air Force and   A
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       B
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        c
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 an.d March, 1998 and ultimately the
respondent tricked the appellant into marrying her on D
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.
                                                                   E
      (c) In January, iooo, 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          F
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        G
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.

     (d) The appellant, thereafter, filed Suit No. 87 of 2000 in
the Court of Addi. District Judge-I, Faridabad, under Sections     H
    378     SUPREME COURT REPORTS                 (2011) 6 S.C.R.


A   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
s   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.

         (e) The trial Court, by order dated 07.03.2006, declared
C   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.

         (f) Aggrieved by the said order, the respondent preferred
D   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
E   of special leave before this Court.

          4. Heard Mr. Sanjay Parikh, learned counsel for the
    appellant-husband and Mr. P. N. Misra, learned senior counsel
    for the respondent-wife.

F       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
G 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,
H he came to know that the respondent's actual name was Sahar
    FLG. OFFICER RAJIV GAKHAR v. BHAVANA @                    379
         SAHAR WASIF [P. SATHASIVAM, J.]
Wasif and that she had converted to Islam and was married to         A
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          B
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                  c
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 t.he trial Court submitted that the High Court committed an
error in dismissing the husband's petition to declare the D
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 E
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 F
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 G
Shudhikaran.

      7. Chapter IV of the Hindu Marriage Act, 1955 (in short 'the
Act') deals with nullity of marriage and divorce. Section 11 says
·~hat any marriage solemnized after the commencement of this         H
    380     SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A 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
B 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, orb) that the marriage is
""' in contravention of the condition specified in clause (ii) of
J

    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.
0
    Chapter II deals with Hindu 1.iarriages 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
E 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,
F 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
G 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
H and with full knowledge and consent, marriage of the appellant I
   FLG. OFFICER RAJIV GAKHAR v. BHAVANA @                   381
        SAHAR WASIF [P. SATHASIVAM, J.)
and the respondent was performed as per Hindu rites and             A
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         B
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,        c
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
                                                                    0
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         E
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              F
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           G
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,           H
    382     SUPREME COURT REPORTS                 [2011] 6 S.C.R.


A 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
9
  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
C 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
D 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
E 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
F 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
G 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
H and the evidence of RW2, RW4 and RW6 clearly show that the
  FLG. OFFICER RAJIV GAKHAR v. BHAVANA @                      383
       SAHAR WASIF [P. SATHASIVAM, J.]

respondent-wife established that before the marriage with the         A
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       B
appellant are not applicable to the case on hand.

     13. Mr. Parikh heavily relied on Gu//ipilli Sowria Raj
(supra). The question in that decision was whether a marriage
entered into by a Hindu with a Christian is valid under the           c
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
                                                                      0
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            E
agree with the conclusion arrived at by the High Court and reject
ihe 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.          F

D.G.                                         Appeal dismissed.