Holding

A marriage between a Hindu and a Christian solemnized under Hindu customs is a nullity; registration under Section 8 does not validate it.

Summary

The appellant, a Roman Catholic Christian, married the respondent, a Hindu, in a temple according to Hindu customs and later registered the marriage under Section 8 of the Hindu Marriage Act, 1955. The respondent filed a petition under Section 12(1)(c) seeking a decree of nullity, alleging the appellant misrepresented his religion. The High Court held the marriage void ab initio, a decision affirmed by this Court. The Supreme Court examined the Preamble and Sections 2, 5, 7, 8, 11 and 12(1)(c) of the Hindu Marriage Act, concluding that the Act applies only to Hindus and that a marriage between a Hindu and a Christian does not fall within its scope. Consequently, the marriage is a nullity and registration under Section 8 does not validate it. The appeal was dismissed.

Issues considered

Whether a marriage between a Hindu and a Christian solemnized according to Hindu customs is covered by the Hindu Marriage Act, 1955.
Whether such a marriage is void or voidable under Section 11 of the Act.
Whether registration of the marriage under Section 8 can validate a marriage that is otherwise outside the Act's ambit.
Whether the respondent is entitled to a decree of nullity under Section 12(1)(c) on the ground of misrepresentation.

Legislation cited

Hindu Marriage Act, 1955s. 11, s. 12(1)(c), s. 2, s. 4, s. 5, s. 7, s. 8

Subjects

Hindu Marriage Actinterfaith marriagevoid marriagenullitySection 8 registrationSection 12(1)(c)misrepresentation

Judgment

[2008] 17 S.C.R. 35

GULLIPILLI SOWRIA RAJ A
II.
BANDARU PAVANI @ GULLIPILI PAVANI
(Civil Appeal No. 2446 of 2005)
DECEMBER 04, 2008
B
[ALTAMAS KABIR AND AFTAB ALAM, JJ.]

~- Hindu Marriage Act, 1955 - Preamble, ss.2, 5, 7, Band
12(1)(c)- Marriage between a Hindu and a Christian- Validity
of - Held: A marriage between a Hindu and Christian C
solemnized according to Hindu customs is a nullity -
Registration of such marriage uls 8 does not validate the
same.

Appellant, who is a Christian married the respondent, 0
who is a Hindu,· in a temple. Marriage was registered u/s
8 of Hindu Marriage Act, 1955. Respondent-wife filed a
petition u/s 12{1)(c) of the Act, seeking decree of nullity
of marriage on the ground that there was
misrepresentation by the appellant regarding his social E
status that he was a Hindu. Appellant-husband admitted
that he was a Christian. Family Court allowed the appeal
thereagainst.

In appe~I to this Court, the 'question for consideration
was whether a marriage entered into by a Hindu with a F
Christian is valid under the provisions of Hindu Marriage
Act, 1955.

Dismissing the appeal, the Court

HELD: 1.1. A marriage entered into by a Hindu with G
a Christian is not valid under the provisions of the Hindu
Marriage Act, 1955. The Preamble of the Act, indicates that
it was enacted to codify the law relating to marriage
amongst Hindus. Section 2 of the Act which deals with
35 H
36 SUPREME COURT REPORTS [2008] 17 S.C.R.

A application of the Act, 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
-
B opening line of the Section does not make the provision
of Section 5 optional. On the other and, it in positive
terms, indicates that a marria'ge can be solemnized
between two Hindus, if the conditions indicated were
fulfilled. In the event the conditions remain unfulfilled, a
C marriage between two Hindus could not be solemnized.
The expression 'may' used in the opening words of
Sec;tion 5 is not directory, but mandatory and non-
fulfilment 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,
0
as understood under Section 5, could be solemnized
according to the ceremonies indicated therein. [Paras 1,
.20 and. 21] [37-B; 43-B; C-E]
1.2. In view of the facts pleaded by the respondent
E in her applic~tion under Section 12(1)(c) of the Act and ~
the admission of the appellant that he and still is a
Christian belonging to th'e Roman Catholic
denomination, the marriage solemnized in accordance
with Hindu customs was a nullity and its registration
F under Section 8 of the Act could not and/or. did not
validate the same. [Para 22] (43-F-G]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2446 of 2005.

G From the final judgment and Order dated 12.9.2002 of the
High Court of Judicature, Andhra Pradesh at Hyderabad in
C.M.A. No. 2024 of 1998. y

U.U. Lalit, C. Mukund, Bandana Anand and Bijoy Kumar ,__
H Jain for the Appellant.
GULLIPILLI SOWRIA RAJ v. BANDARU PAVANI@ 37
GULLIPILLI PAVANI

Y. Rajagopala Rao, Y. Ramesh, Y. Vismai and B.V.Niren, A
for the Respondent.
The Judgment of the Court was delivered by
ALTAMAS KABIR, J. 1. The only question which falls for
B
determination in this Civil Appeal by way of Special Leave is
whether a marriage entered into by a Hindu with a Christi~n is
valid under the provisions of the Hindu Marriage Act, 1955.
2. The appellant, who is a Roman Catholic Christian
allegedly married the respondent, who is a Hindu, on c
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~under Section 8 of
the Hindu Marriage Act, 1955, hereinafter referred to as the
"1955 Ad'. D
3. Soon thereafter, on 13.3.1997, the respondent-wife filed
a petition before the Family Court at Vishakapatnam, being
"' O.P. No.84of1997, under Section 12(1)(c) of 1955 Act, for a
decree of nullity of the marriage entered into between the
E
parties on 24.10.1996 on the grounds mentioned in the said
petition.
4. 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 F
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 G
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.
•'
I 5. A few months thereafter o!l 23.1.2003 the respondent
H
38 SUPREME COURT REPORTS [2008] 17 S.C.R.

A married one Dr. Praveen. Thereafter, on 23.4.2003 the
appellant filed a Special Leave Petition out of which the present ·~

appeal arises. ~

6. There is no dispute that at the time of the purported
marriage between the appellant and the respondent the
B
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 under Section 8 thereof. As against the ab_ove, a
c novel argument has been advanced on behalf of the appellant,
the substance whereof is that the Hindu Marriage Act, 1955
does not preclude a Hindu from marrying a person of some
other faith. In order to assist the Court in regard to such a
submission, the Court had requested Mr. U.U. Lalit, learned
D Senior Advocate, to assist the Court in the matter.

7. Mr. Lalit firstly took us through the provisions of Section
5 of the 1.955 Act which prescribes the conditions fof'a Hindu
marriage. The opening words of Section 5 are as follows:
E
"A marriage may be solemnized between any two Hindus,
if the following conditions are fulfilled, namely: ... "

8. Mr. Lalit submitted that the use of the word 'may' in the
opening words of Section 5 seems to indicate that the
F conditions were not mandatory and that as a result, the said
conditions would not be bind'ing on the marriage performed
between the appellant a'nd the respondent. ·

9. Mr. Lalit then took us through the provisions of Section
G 11 of the 1955 Act, which deals with void marriages and
indicates as follows :

"11. Void marriages :-Any marriage.solemnized after the -y
)
commencement of this Act shall be null and void and may,
on a petition preserlted by either party thereto, against the
H other party be so declared by a decree of nullity if it
1 GULLIPILLI SOWRIA RAJ v. BANDARU PAVANI@ 39
GULLIPILLI PAVANI [AlTAMAS KABIR, J.]

contravenes any one of the conditions specified in clauses A
(i), (iv) and (v), Section 5."

10. Mr. La lit submitted that none of the conditions, as
indicated in Section 11 , apply to the facts of this case and as
such the marriage between the appellant and the respondent
8
dould not be said to be a void marriage. According to Mr. Lalit,
at best the marriage could be said to be a voidable marriage
and the High Court appears to have proceeded on an
erroneous footing that the marriage was ab initio void.

11. Adopting the line of submission advanced by Mr. Lalit, C
Mr. C. Mukund, learned counsel for the appellant, submitted that
the Heading of Section 5 - 'Conditions for a Hindu marriage'
was a misnomer, having regard to the use of the expression
'may' in the opening lines of the Section. Mr. Mukund submitted
that the conditions indicated in Section 5 must be held to be D
optional and that Section 7 of the said Act where also the
expression 'may' has been used in Sub-section (1) must be
understood to refer to a marriage and not the parties to the
marriage. Mr. Mukund submitted that Section 11 of the Hindu
Marriage Act, 1955, would, therefore, have an overriding effect E
over the provisions of Section 5 which, according to him, were
optional. Mr. Mukund reiterated that the Hindu Marriage Act,
1955, does not contemplate a valid marriage only between two
Hindus, and urged that the High Court had erred in allowing the
respondent's application under Section 12(1)(c) of the above F
Act on such misconception of the provisions thereof.

12. Mr. Y. Rajagopala Rao, learned advocate appearing
for the respondent wife, submitted that it will first have to be
decided whether the marriage performed between the parties
was a valid Hindu marriage or not. According to Mr. Rao, the G
other questions would arise only thereafter. In this regard, Mr.
Rao submitted that the Preamble to the Hindu Marriage Act,
1955, in unambiguous terms makes it clear that the Act was
promulgated to amend and codify law relating to marriage
amongst Hindus. He urged that the language of the Preamble H
40 SUPREME COURT REPORTS [2008] 17 S.C.R'.

A leaves no room for doubt that the Act and its provisions would
apply to Hindus only, as defined in Section 2, Sub-section (1)(c)
whereof specifically excludes a person professing the Christian
faith from the its ambit. Mr. Rao urged that each religious
community. in India had their own form of marriages which
B excluded members of other religious communities, though the
Indian- Marriage Act did recognize a marriage between a
Christian and non-Christian to be valid, though under the
provisions of the Special Marriage Act.

C 13. Mr. Rao also referred to Section 2 of the above Act
which reads as follows:

2.-Application of Act- (1) This Act applies,-

(a) to any person who is a Hindu by religion in any of of its
0 forms or developments, including a Virashaiva, a Lingayat
or a follower of the Brahma, Prarthana or Arya Samaj;

(b) to any person who is a Buddhist, Jaina or Sikh by
religion, and

E (c) to any other person domiciled in the territories to which
this Act extend$ who is not a Muslim, Christian, Parsi or
Jew by religion, unless it is proved that any such person
would not have been governed by the Hindu law or by any
cusfom or usage as p~rt of that law in respect of any of
F the matters dealt with herein if this Act had not been
·passed.

Explanation.- The following persons are Hindus, Buddhists,
Jainas or Sikhs by religion, as the case may be,-
G (a) any child, legitimate or illegitimate, both of whose
parents are Hindus, Buddhists, Jainas or Sikhs by religion;-
y
(b) any child, legitimate or illegitimate, one of whose
parents is a Hindu, Buddhist Jaina or Sikh by religion and
H Who is brought up as a member of tribe, community, group
GULLIPILLI SOWRIA RAJ v. BANDARU PAVANI @ 41
GULLIPILLI PAVANI [ALTAMAS KABIR, J.]

or family to which such parents belongs or belonged; and A

(c) any person who is a convert or re-convert to the Hindus,
Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section
· (1),nothing contained in this Act shall apply to the members B
of any Scheduled Tribe within the meaning of clause (25)
of Article 366 of the Constitution unless the Central
~·
Government, by notification in the Official Gazette,
otherwise directs.
c
(3) The expression "Hindus" in any portion of this Act shall
be construed as if it included a person who, though not a
Hindu by religion is, nevertheless, a person whom this Act
applies by virtue of the provisions contained in this
section." D
14. Reference was then made to Section 4 of the Act
- which; inter alia, provides that save as otherwise expressly
provided in the Act any text Rule or interpretation of Hindu Law
or any customs or usage as part of that law in force immediately
before the commencement of the Act would cease to have E
·effect with respect to any matter for which provision had been
made in that Act. Mr. Rao pointed out that the said Section also
provided that the Hindu Marriage Act, 1955, would override
other laws in force immediately before the commencement of
+
the Hindu Marriage Act, 1955, in so far it was inconsistent with F
any of the provisions of the· 1955 Act.

15. With regard to the provisions of Section 5 of the Hindu
Marriage Act, 1955, Mr. Rao submitted that it was clear from
the wording thereof that the conditions indicated in the Section G
were to apply only in respect of a marriage between two Hindus
·<(
and that a Hindu marriage could be solemnized between tWo
Hindus only when the conditions set out in the provisions
contained therein had been fulfilled. According to Mr. Rao, the
.
f
marriage between the parties would have to be categorised
H
42 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
A within the scope and ambit of Section 12 relating to voidable
\
marriage since a void marriage under Section 11 of the Act
had been defined to mean any marriage solemnized after the .'
commencement of the Act if it contravenes any one of the
conditions specified in clauses (i)(iv) and (v) of Section 5. Since
B the marriage of the parties did not fall within the said \.

categories, the respondent had no option but to make an ~

application under Section 12(1)(c) that the marriage was a
nullity on the ground that the appellant had been beguiled into J_
the marriage by the appellant on fraudulent considerations, one
c of which was that he was a Hindu at the time of marriage. Mr.
Rao submitted that since a valid marriage under the Hindu
Marriage Act, 1955, could only be performed between two
Hindus the marriage had been rightly declared to be a nullity ·
by the High Court and its decision did not warrant any
D interference in this appeal.

16. Apart from the aforesaid question, another submission
was advanced on behalf of the respondent to the effec1 that,
after the decree passed in her favour declaring the marriage
"'
to be a ·nullity, ~he had remarried on 23.1.2003 i.e about 4
E months after the decree declaring her marriage with the
appellant to be nulli~y had been passed.

17: Various decisions were cited on behalf of both the
parties with regard to this aspect of the matter which, in our
F view, is not really important for a decision on the legal question
~
that has been raised in the appeal.

18. Although, an attempt has been made to establish that
the Hindu Marriage Act, 1955, did not prohibit a valid Hindu
marriage of a Hindu and another professing a different faith, ~

G we are unable to agree with such submission in view. of the t
~
definite scheme of the 1955 Act.
)."

19. In order to appreciate the same, we may first refer to I
the Preamble to the Hindu Marriage Act, 1955 , which reads
H as follows: '
'
GULLIPILLI SOWRIA RAJ v. BANDARU PAVANI @ 43
GULLIPILLI PAVANI [ALTAMAS KABIR, J.]
· "An Act to amend and codify the law relating to marriage A
among Hindus". (Emphasis added)
20. As submitted by Mr. Rao, the Preamble itself indicates
that the Act was enacted to codify the law relating to marriage
amongst Hindus. Section 2 of the Act which deals with
B
application of the Act, and has been reproduced hereinabove,
reinforces the said proposition.

21. 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 c
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 D
remain unfulfilled, a marriage between two Hindus could not be
solemnized. The expression 'may' used in the opening words
y of Section 5 is not directory, as has be~n sought to be argued,
but mandatory and non-fulfilment thereof would not permit a
marriage under the Act between two Hindus. Section 7 of the E
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.

22. In the facts pleaded by the respondent in her
application under Section 12(1)(c) of the 195S Act and the F
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 G
the fcppeal preferred by the respondent herein and the judgment
_., and mder of the High Court does not warrant any interference.

-
---r
23. Th~ other question raised regarding the subsequent
marriage of the respondent is of little relevance once we have H
l
44 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
A held that the marriage purported to have been performed
between the appellant and the respondent on 24.10.1996 was ~·
a nullity. Hence, no decision is called for in that regard and we
also make no observation in respect thereof.

24. The appeal is accordingly dismissed.
B
25. There will, however, be no order as to.costs.

26. We place on record our appreciation of the assistance
)..
provided by Mr. Lalit to help us to arrive at a decision in this
c appeal. ·

K.K.T. Appeal dismissed.