Karnataka High Court
Seema V vs Mujibulla on 15 October, 2020
Bench: B.V.Nagarathna, N S Sanjay Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2020
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
MFA.No.5809/2016 (FC)
BETWEEN:
Seema .V, Wife of Mujibulla,
Aged about 53 years,
Residing at Shanthinagar,
Tumakuru - 572 101. ... Appellant
(By Sri. S.V.Prakash, Advocate)
AND:
Mujibulla, Son of Late Abdul Latheef,
Aged about 57 years,
Thanveer Manzil,
Residing at 9th Cross,
Gokul Extension,
Tumakuru - 572 129. ... Respondent
(Respondent is served and unrepresented)
This appeal is filed under Section 19(1) of the
Family Courts Act against the Judgment and award
dated:18.07.2016 passed in O.S.No.45/2013 on the file
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of Principal Judge, Family Court, Tumkur, dismissing the
suit filed under order 7, Rule 1 of CPC for declaring the
marriage as null and void.
This appeal coming on for admission this day,
NAGARATHNA, J., delivered the following:
JUDGMENT
The appellant/plaintiff has preferred this appeal being aggrieved by dismissal of her suit filed in O.S.No.45/2013 by judgment and decree dated 18.07.2016 by the Principal Judge, Family Court at Tumakuru.
2. For the sake of convenience the parties shall be referred to in terms of the status before the Family Court.
3. The appellant/plaintiff filed the suit seeking a declaration that her marriage, solemnized with the respondent/defendant on 15.08.1991, as null and void. According to the plaintiff, her original name is V.Shantha Kumari, actually she is a Hindu. She fell in love with the defendant and married him on 15.08.1991 at 3 Sri Siddalingeswara Swamy Temple, Yediyur, Kunigal, Tumakuru. After her marriage, the defendant forced her to convert into Mohammedan religion and she accordingly converted and changed her name as Seema. From their wedlock, they have a son by name, Saleem Mallik. The plaintiff and defendant lived happily for few years. According to the plaintiff, thereafter, defendant started harassing her and asked her to part with her entire salary. When she refused to do so, the defendant abused and assaulted her and finally the defendant deserted the plaintiff. The plaintiff subsequently became aware that prior to her marriage, the defendant had married Kamarunnisa and he is having two children through her namely, Haseebulla, aged about 20 years and Farinanaz, aged about 24 years. The defendant had suppressed his earlier marriage with Kamarunnisa and had cheated the plaintiff.
3. It is the further case of the plaintiff that she is working as a typist cum clerk at Byraveshwara College 4 and out of her hard earnings, she has constructed a small house at Shanthinagar and living with her son. The defendant is harassing and threatening her to execute a sale deed in respect of the said house, against which, she has lodged a complaint before the Police Sub- Inspector, Rural Police Station, Tumakuru. The Police had issued a Non-Compliance Report (NCR) but not taken any action against the defendant.
4. The defendant is living with his 1st wife and children. It is not possible for the plaintiff and the defendant to carry out their marital obligations. The plaintiff had suffered misery, frustration and agony in her life and the marriage between her and the defendant has broken irretrievably on account of the harassment by the defendant. Therefore, the plaintiff issued a legal notice seeking dissolution of her marriage with the defendant, for which, he gave a false reply. Hence, the plaintiff filed the suit seeking a declaration that her marriage with the defendant was null and void. 5
5. In response to the suit summons, the defendant appeared through his counsel and filed his written statement and admitted the original name of the plaintiff and her caste and they have got married in the year 1991 but the defendant denied that he had forced her to convert into Mohammedan religion and change her name. He also admitted that they have a son by name Saleem Mallik born from the wedlock and initially, the couple lived together happily but the defendant denied that he was harassing the plaintiff and he also denied that he has suppressed about his earlier marriage with one Kamarunnisa. He denied the other averments and allegations against him.
6. The defendant contended that the plaintiff was aware of his earlier marriage with Kamarunnisa and despite that the defendant got married to her and his first wife Kamarunnisa, on coming to know about this marriage with the plaintiff had lodged a complaint before 6 Kyathasandra Police and she attempted to commit suicide, thereafter the matter was settled.
7. The first wife-Kamarunnisa left him and was settled at Bengaluru i.e in her parents' house. The defendant was working at HMT main factory at Tumakuru and he was maintaining both the wives and all the three children. The defendant resigned from his job in the year 2001 and out of his monetary benefits, he constructed separate houses for both the wives at different places. The defendant supported the plaintiff to get a job and now the plaintiff is drawing a salary of Rs.20,000/- to 25,000/- per month and getting Rs.10,000/- per month as rent from the house constructed by him. Now the defendant is aged about 60 years and suffering from diabetes and hypertension. He has no work and no money, his elder son is residing at Saudi Arabia along with his family and he is not looking after his father i.e defendant. His daughter is staying in Bengaluru and she is not helping the 7 defendant. The plaintiff has thrown out the defendant from her house. He contended that the entire family has neglected him despite his ill-health. He was staying along with his brothers at Gubbi and Tumakuru and he has filed the case seeking maintenance.
8. The plaintiff has lodged a complaint against him at Tilak Park Police Station and Rural Police station, Tumakuru. The Superintendent of Police, Tumakuru after an enquiry has closed the case by advising them to live amicably. He averred that he is ready to live with the plaintiff and his son, but the plaintiff was not allowing him to do so. He contended that the plaintiff has filed the suit at the instigation of her mother. That the defendant has been neglected by the plaintiff. Therefore, he sought for dismissal of the suit.
9. Thereafter, the Family Court formulated the following issues for consideration:
"10. Now the points that arise for the consideration of the court are:
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1) Whether the plaintiff has proved that the defendant has cruelly ill- treated her?
2) Whether the plaintiff is entitled for dissolution of the marriage as sought?
3) What order?
11. My findings on the above points are as follows:
Point No.1 : In the negative Point No.2 : In the negative Point No.3 : As per final order for the following"
10. In order to substantiate her case, the plaintiff examined herself as PW.1 and she produced seven documents and which were marked as Ex.P1 to Ex.P7 while respondent/defendant examined himself as DW.1 and he produced thirteen documents and which were marked as Ex.D1 to Ex.D13.
11. On the basis of the evidence on record, the Family Court answered the Point Nos.1 & 2 in the 9 negative and dismissed the suit. Being aggrieved by the dismissal of the suit, the plaintiff has preferred this appeal.
12. We have heard the learned counsel for the appellant. The respondent was served on 19.12.2018 and has not appeared either in person or through counsel.
13. Learned counsel for the appellant/plaintiff submitted that the Family Court was not right in dismissing the suit. Admittedly, the parties were married at Sri Siddalingeswara Swamy Temple, Yediyur, Kunigal. Their marriage was as per Hindu rites and customs but infact, there was no marriage in the eye of law as per Section 5 read with Section 7 of the Hindu Marriage Act, 1955 (hereinafter referred to as 'the Act' for the sake of brevity). It is only when two Hindus marry as per Hindu rites and customs, it would result a "Hindu Marriage". In the instant case, the respondent is 10 a Muslim whereas the appellant is a Hindu by faith. Therefore, there was no "Hindu Marriage" and neither any marriage in accordance with the personal or the special law. In the circumstances, the plaintiff sought a declaration that the marriage between the plaintiff and the defendant was null and void. The Family Court has failed to appreciate the case of the plaintiff and has dismissed the suit.
14. He further contended that the Family Court has not correctly reasoned and has lost sight of the fact that there was no Hindu Marriage in the eye of law, therefore, it ought to have granted a declaration that the marriage between the parties as null and void. He further submitted that the said declaration may be granted by this Court as both the parties are not Hindus and cannot avail any remedy in the provisions of the Act. Therefore, the suit was filed seeking declaration that the marriage between the parties was null and void. The 11 Family Court ought to have granted such a declaration and decreed the suit.
15. As already noted the respondent was served on 19.12.2018 and he has not appeared in person nor through counsel.
16. Having heard the learned counsel for the appellant and on perusal of the material on record, the following are the admitted or undisputed facts:
Firstly, the plaintiff is a Hindu by faith while the defendant is Mohammedan by faith. Admittedly, they underwent "Hindu Marriage" at Sri Siddalingeswara Swamy Temple, Yediyur, Kunigal, as per Hindu rites and customs.
17. Section 2 of the Act speaks about the application of the Act to those persons who are Hindu by faith and the same reads as under:
"2. Application of Act. - (1) This Act applies 12
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person domiciled in the territories to which this Act extends 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 custom or usage as part of that law in respect of any of 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:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents 13 is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
(c) any person who is a convert or re-
convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members 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.
(3) The expression "Hindu" 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 to whom this Act applies by virtue of the provisions contained in this section."
18. In fact, Section 2 of the Act defines the expression "Hindu". It is only when both the parties to the marriage are Hindus it could be a "Hindu marriage" 14
when it is in conformity with Section 7 of the Act i.e by following the applicable rites and customs and by complying Section 5 of the Act. Thus, it is clear that a Hindu marriage is valid only when both the parties to the marriage are Hindus and married in accordance with Section 5 read with Section 7 of the Act. Such a marriage would be valid and the solemnization of the marriage between two parties who are Hindus as per the Hindus customary rites and ceremonies would result in Hindu marriage in accordance with Section 5 of the Act. If there is non-compliance of the terms and conditions mentioned in Section 5 of the Act, it would result in either a void marriage or voidable marriage. If the marriage is a void marriage then Section 11 of the Act provides for seeking a declaration of nullity, when there is contravention of the conditions specified in clauses (i),
(ii) and (v) of Section 5 of the Act. Further, if there is violation of conditions specified in Clause (ii) of Section 5 15 of the Act, such a marriage is a voidable marriage as per Section 12 of the Act.
19. The Act does not prescribe the nullity or voidness of marriage solemnized between two parties, if one or both the parties are not Hindus, even if they fulfill other conditions of Section 5 of the Act. But, Section 5 stipulates that it is only when both the parties who marry are Hindus, they could get married under the provisions of the Act. The Act would be applicable to such a marriage and it would be a Hindu Marriage. Thus, the said condition, namely, both the parties to a Hindu Marriage must be Hindus, is the substratum or foundation of a Hindu Marriage. In other words, even if one of the parties to a marriage is a non-Hindu, it would not result in a Hindu marriage, even if the ceremonies as per Section 7 of the Act are performed and all the conditions under Section 5 are satisfied or complied with. In fact, such a marriage would not be a marriage in the eye of law. Thus, the Hindu Marriage Act would apply 16 only when both the parties to the marriage are Hindus and the definition of which is in Section 2 of the Act, which is extracted above.
20. The admitted facts in the instant case have been referred to above. Having regard to the fact that in the instant case, the appellant is Hindu by faith and the respondent herein is Mohammedan by faith, they could not have undergone 'a ceremony of marriage' under the provisions of the Act and their marriage did not result in Hindu Marriage there being more provisions under the Act to seek a declaration of the nullity, as neither Section 11 nor Section 12 provides for such a remedy. The only manner by which the appellant/plaintiff could have sought for a declaration on the nullity of her marriage with the respondent was by filing a suit which is permissible as per Section 9 of the Code of Civil Procedure, 1908 i.e exactly what was done in the instant case. The Family Court has failed to appreciate the aforesaid aspects and has simply discussed the evidence 17 in detail without bearing in mind the position of law particularly with regard to Section 2 of the Act which defines the expression of "Hindu" and the applicability of the Act to only Hindus. Thus, when both the appellant and respondent did not belong to the Hindu faith but they underwent Hindu marriage, it did not result in the Hindu marriage. Therefore, the Family Court ought to have declared the said marriage as null and void and as it is no marriage in the eye of law.
21. In this regard, reliance could be placed on the judgment of the Hon'ble Supreme Court in Gullipilli Sowria Raj Vs. Bandaru Pavani - (2009) 1 SCC 714, wherein the Hon'ble Supreme Court referred to Section 5 of the Act which deals with conditions for a valid Hindu Marriage and held that the preamble of the Act itself indicates that the Act was enacted to codify the law relating to marriage amongst Hindus. Section 2 of the Act which deals with the application of the Act reinforces the said proposition. Section 5 of the Act thereafter also 18 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 Section 5 does not make the said provision optional. On the other hand, it is in positive terms, which indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. In other words, in the event the conditions remained unfulfilled, a marriage between two Hindus could not be solemnized. That the expression 'may' used in the opening words of Section 5 is not directory, but mandatory and non-fulfillment thereof would not permit a marriage under the Act between two Hindus. The Hon'ble Supreme Court has observed that Section 7 of the 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.
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22. In the circumstances, the judgment and decree of the Family Court is set aside, the suit is decreed. The marriage between the appellant and respondent which took place on 15.08.1991 at Sri Siddalingeswara Swamy Temple, Yediyur, Kunigal, Tumakuru is declared null and void. The appeal is allowed in the aforesaid terms.
No costs.
Registry to draw up the decree in the aforesaid terms.
Sd/-
JUDGE Sd/-
JUDGE KTY