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Sunday, May 15, 2011

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


                                                           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.





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