REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4278 OF 2011
(Arising out of S.L.P. (C) No. 1833 of 2010)
Flg. Officer Rajiv Gakhar .... Appellant (s)
Versus
Ms. Bhavana @ Sahar Wasif .... Respondent(s)
J U D G M E N T
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 FAO No. 72-M of
2006 (O & M) whereby the High Court allowed the appeal
filed by the respondent herein and set aside the judgment
and decree passed by the Additional District Judge-I,
Faridabad in favour of the appellant herein.
1
3) Brief facts:
(a) The appellant is a pilot with the Indian Air Force and
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 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 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 and March, 1998 and ultimately the
respondent tricked the appellant into marrying her on
2
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.
(c) In January, 2000, 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 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 and her
brother under Sections 406, 419 and 420 of the Indian
3
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 Addl. District Judge-I, Faridabad, under
Sections 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 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
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.
4
(f) Aggrieved by the said order, the respondent preferred
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 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.
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 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
5
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, he came
to know that the respondent's actual name was Sahar
Wasif and that she had converted to Islam and was
married to 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 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 dismissed the petition filed by the
appellant-husband.
6
6) Learned counsel for the appellant by drawing our
attention to various factual details and the findings
arrived at by the trial Court submitted that the High Court
committed an error in dismissing the husband's petition
to declare the 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 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 details and before marriage
with the appellant, the respondent-wife had undergone
Shudhikaran Ceremonies and she was deemed to have
7
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
Shudhikaran.
7) Chapter IV of the Hindu Marriage Act, 1955 (in short
`the Act') 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
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 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,
8
or b) that the marriage is in contravention of the condition
specified in clause (ii) of 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.
Chapter II deals with Hindu marriages 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 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, the materials placed by the respondent-wife in the
form of oral and documentary evidence clearly show that
9
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 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 and with full knowledge and consent, marriage of
the appellant and the respondent was performed as per
Hindu rites and 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 religion
only at the time of marriage with Wasif Khalil which was
10
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, 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 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
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
11
respondent-Bhavana came to his house in the company of
his daughter K. Aparna in the month of April 1997. On
one occasion, he 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 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, according to RW2, the appellant
was also aware of all the details about RW1 including her
religion even before their marriage.
12
10) One Babu Lal, aged about 65 years, an
Astrologer/Karamkandi, resident of Sector 8, Faridabad
was examined 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 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 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.
13
11) Another important witness examined on the side of
the 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 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 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.
14
12) The analysis of the assertion of the respondent as
RW1 and the evidence of RW2, RW4 and RW6 clearly show
that the respondent-wife established that before the
marriage with the 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
appellant are not applicable to the case on hand.
13) Mr. Parikh heavily relied on Gullipilli Sowria Raj
(supra). The question in that decision was whether a
marriage entered into by a Hindu with a Christian is valid
under the 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
15
did not validate the same. In view of the said factual
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 agree with the conclusion arrived at by the
High Court and reject the 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.
..........................................J.
(P. SATHASIVAM)
..........................................J.
(H.L. GOKHALE)
NEW DELHI;
MAY 11, 2011.
16
