A.A. Balasundaram vs A. Vijayakumari and Another

The revision petition filed by the husband is directed against an order awarding maintenance of Rs. 150/- per month to the wife, whereas the criminal petition challenges the order confirming the finding of the Courts below that the marriage between the parties is a valid one.

The wife filed a petition alleging that the marriage between herself and the revision petitioner took place on 7-2-1987 at Rajahmundry in a temple as per Hindu rites and that due to estrangement of relations, she was forced to be away from the husband and live with her parents. It is in her evidence, as P.W. 1, during the course of cross-examination, that she was a Christian by birth, whereas the husband was a Hindu. The trial Court found the marriage between the parties to be valid, but refused to grant maintenance on the ground that the husband has no source of income. When the matter was taken in revision, the Court below awarded a maintenance of Rs. 150/- per month to the wife upholding the finding regarding the validity of the marriage. Hence, the revision petition and the criminal petition by the husband.

In view of the admission that the wife was a Christian by birth, whereas the husband was a Hindu and the marriage between them took place as per Hindu rites, the question that arises for consideration is whether the marriage is a valid one for purposes of granting maintenance u/s 125, Cr.P.C.

To decide the issue, it is 1st necessary to have a reference to the provisions of the Hindu Marriage Act and the other Marriage Laws.

Section 2 of the Hindu Marriage Act reads thus :

"2. Application of Act :- (1) This Act applies -

(a) to any person who is a Hindu by religion .....;

(b) xx xx xx xx (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 ......

Explanation :- The following persons are Hindus .......

(a) xx xx xx (b) xx xx xx (c) any person who is a convert or reconvert to the Hindu .................. religion.

(2) xx xx xx (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."

Section 5 of the Hindu Marriage Act basically contemplates solemnisation of the marriage between two Hindus and prescribe certain conditions thereof for its validity. The said section reads as follows :

"5. Conditions for a Hindu Marriage :- A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled, namely :

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party -

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children or;

(c) has been subject to recurrent attacks of insanity or epilepsy.

(iii) the bridegroom has completed the age of 21 years and the bride the age of 18 years at the time of marriage;

(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

(vi) omitted by Act 2 of 1978."

Section 8 of the Hindu Marriage Act provides for the registration of Hindu marriages for purposes of proof of the same.

Section 11 of the Hindu Marriage Act reads thus :

"11. Void Marriages :- Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, 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."

The section as seen provides for grant of a decree declaring the marriage to be null and void on an application made by either party thereto when the marriage is performed in contravention of any of the conditions specified in Clauses (i), (iv) and (v) of Section 5 of the Hindu Marriage Act i.e., living spouse, degrees of prohibited relationship and sapinda relationship respectively.

Section 12 of the Hindu Marriage Act provides for grant of a decree of nullity of voidable marriages on any of the grounds mentioned thereof. It reads as follows :

"12. Voidable marriages :- (1) Any marriage solemnised, whether before or after the commencement of this Act, shall be voidable 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; or

(b) that the marriage is in contravention of the conditions specified in Clause (ii) of Section 5; or

(c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner was required u/s 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978, the consent of such guardian was obtained by force or by fraud as to the nature of the ceremony or by 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.

(2) xx xx xx."

To sum up, as per Section 11 of the Hindu Marriage Act, the marriages performed in contravention of Clauses (i), (iv) and of Section 5 of the Hindu Marriage Act are void, whereas u/s 12 of the said Act, for contravention of any of the conditions enumerated therein, the marriages are voidable.

There is nothing in Section 11 or Section 12 of the Hindu Marriage Act saying that the marriage between a Hindu and a Christian, if performed, is void or voidable. It is crucial to notice that neither Section 11 nor Section 12 of the said Act renders a marriage between a Hindu and a Christian void or voidable on the ground that the parties belong to two different religions. The provisions of the said Act, namely Sections 11 and 12, having been specific in rendering certain marriages void and voidable and being silent as regards the marriage between a Hindu and a Christian and there being no provision in the Act dealing with such a question, it cannot be held that such a marriage is either void or voidable.

It is apposite to notice at this stage that though the husband earlier filed O.P. No. 91/87 in the Sub-Court, Rajahmundry, for a declaration that the marriage is voidable, he withdrew the same and thus the lis in that regard is no more pending before the Civil Court.

It is next submitted that according to Section 4 of the Indian Christian Marriage Act, marriage between two Christians or one of whom is a Christian shall be void, if it is not solemnised in accordance with the provisions of Section 5 of the said Act; and since it is not admittedly so performed, the contention advanced is that the marriage should be declared void.

It is to be borne in mind that the rigour of voidness covered by Section 4 of the Indian Christian Marriage Act is stressed and attached more to the persons that officiate in the solemnisation of the marriages, and it does not envisage as regards the validity or otherwise of a marriage simpliciter that took place between a Hindu and a Christian. This view is again fortified by Section 4 of the Special Marriage Act, which permits a marriage between two persons of different faiths. Therefore, a Hindu can marry a Christian under the Special Marriage Act. Such a marriage cannot be held to be void on the ground that it was not performed according to the provisions of Section 5 of the Indian Christian Marriage Act. Similarly, Section 4 of the Foreign Marriage Act permits a marriage between parties, one of whom at least is an Indian citizen residing outside India. On a similar anology as noted supra, even a marriage under this Act, if performed between a Hindu and a Christian both or one of whom is an Indian citizen, cannot be held to be void on the ground that it is not performed in accordance with the provisions of Section 5 of the Indian Christian Marriage Act.

It has become necessary to take into consideration the different provisions in different enactments keeping in view the present day social conditions prevalent in our country. Ours is a Secular State, where people belonging to different faiths live together and so, there is considerable possibility of matrimonial alliance between the people belonging to different religions. Consequently, the provisions of different enactments have to be looked into to decide whether the marriage is void or voidable.

Accordingly, in view of the foregoing discussion, it has to be held that the marriage between a Christian and a Hindu performed as per the Hindu rites with the full consent of both parties cannot be said to be invalid for purposes of claiming maintenance u/S. 125, Cr.P.C.

The learned Counsel for the petitioner, relying on a decision of the Supreme Court in Yamunabai Anantrao Adhav Vs. Anantrao Shivram Adhav and Another, , contended that a wife when marries a person who is already having a living spouse is not entitled for maintenance. There is no dispute about this proposition of law, inasmuch as the very marriage is void. The other decisions relied upon viz., Pt. Ram Parkash Vs. Smt. Savitri Devi, ; New Piece Goods Bazaar Co. v. I.T. Commr., AIR 1950 SC 165; The Vishnu Pratap Sugar Works (P) Ltd. Vs. The Chief Inspector of Stamps, U.P., ; Kedar Nath Bajoria Vs. The State of West Bengal, and Poppatlal Shah Vs. The State of Madras, , relate to the principles of interpretation and they have no relevance to the present facts :

15A. In Kunhiraman Nair v. Annakutty, 1967 Ker LT 24, it is noteworthy that the marriage was performed in accordance with the customs prevalent in Nair community between a Nair male and a woman following Roman Catholic faith. It was held that the very performance of the marriage and the fact that the parties thereto lived together as husband and wife were sufficient to confer on the woman the status of wife for claiming maintenance u/S. 488, Cr.P.C., 1898.

In Pahtan Maung v. Ma San, (1939) 40 Cri LJ 653 : AIR 1939 Rang 207, a Budhist woman married a Mohammadan and claimed maintenance. It was held that although the marriage was not strictly in accordance with Mohammadan Law, she was entitled to relief u/S. 488, Cr.P.C., 1898.

In Capt. A.C. Smyth Vs. Mrs. Hannah Smyth, , a Roman Catholic married a woman professing Jewish faith. It was held that the marriage was not invalid so as to render an order of maintenance passed by a Criminal Court illegal.

In Sethurathinam Pillai v. Barbara Dolly @ Sethurathinam, (1970) 1 SCWR 589, the Madras High Court upheld the marriage between a Christian woman and a Hindu male as also the claim for maintenance on the ground that there is nothing in Hindu Law forbidding a marriage between a Hindu and non-Hindu. On appeal, the order granting maintenance by the Madras High Court was confirmed by the Supreme Court observing :

"We do not think it necessary in this case to decide the case on the merits. The order passed in an application filed u/S. 488, Cr.P.C. is a summary order which does not finally determine the rights and obligations of the parties thereto. It is an order made in a proceeding under a provision enacted with a view to provide a summary remedy for providing maintenance, and for preventing vagrancy. The decision of the Criminal Court that there was a marriage between Barbara and Sethurathinam and that it was a valid marriage will not operate as decisive in any civil proceeding between the parties for determining those questions." (Stress is supplied)

Further, in Govindan Nadar Sreedharan Vs. Retna Bai Pushpa Bai, , a similar question arose before the Kerala High Court. The facts of that case are that the petitioner-husband therein married a Christian woman. The trial Court found that the marriage was performed according to the custom of the community of the petitioner. It was contended on behalf of the petitioner that there could be no legal marriage between the petitioner-husband and the respondent-wife because of the difference in religion. It was further contended that even admitting that there was a marriage ceremony preceding the execution of Ex. P-1 (marriage udampady), the respondent-wife did not acquire the status of wife and as such, she was not entitled for maintenance under S. 125, Cr.P.C. Following the decisions in Kunhiraman Nair''s case (1967 Ker LJ24); Maung Pahtan''s case (1939 (40) Cri LJ 653); Capt. A.C. Smyth Vs. Mrs. Hannah Smyth, and Sethurathinam Pillai''s case ( 1970 (1) SCWR 589) (7 to 10 supra), the Kerala High Court held :

"5. It may be that the Hindu Marriage Act, 1955 does not contemplate a marriage between a Hindu male and a Christian female. At the same time, the Indian Christian Marriage Act (XV of 1872) permits marriage between Christians and non-Christians solemnised in accordance with the provisions of the Act. Therefore, the fact that the petitioner and the respondent follow different religions need not necessarily mean that there could be no marriage between them and the respondent will not get the status of a wife even after undergoing the ceremony of marriage."

The learned Counsel finally placed reliance upon a decision of the Madras High Court in Divyanathan v. Jayarani, 1983 MLJ (Cri) 538 : (1984 Cri LJ NOC 10), wherein the marriage was between two Christians, but performed according to the Hindu rites. There, no doubt, it was held that the marriage was not valid. However, the facts of the case are quite different from the facts of the present case.

In view of the above, it cannot be held that the marriage between the husband and the wife, who are Hindu and Christian respectively, is not valid for purposes of granting the relief u/S. 125, Cr.P.C. At the same time, it is open to the aggrieved party to seek appropriate remedy from the Civil Court for a declaration that the marriage is void or voidable, inasmuch as the finding of the Criminal Court in these summary proceedings is neither conclusive nor decisive in the civil proceedings that may be initiated. The quantum of maintenance is not seriously challenged before me.

For the foregoing reasons, I dismiss the criminal revision as well as the criminal petition.

Revision dismissed.