Ravinder Kumar vs Kamal Kanta

A.D. Koshal, J.—This is an appeal by the husband against the dismissal of his petition u/s 9 of the Hindu Marriage Act (hereinafter called the Act) praying for the relief of restitution of conjugal rights against the wife.

The Appellant is Ravinder Kumar, a tube well operator employed in Mukandpur in Jullundur district and his father''s name is Ram ji Lal while the Respondent is Shrimati Kamal Kanta who works as a typist-cum-clerk in the State Bank of India. Jullundur and whose father name in Ram Parkash.

In his petition which was dismissed through the impugned order the Appellant stated that each of the parties was a Hindu by religion and that they had entered into the matrimonial tie on the 18th of November, 1969. at Gurdwara Shahib Baba Sangat Singh situated in Jullun-dur City where Anand Karaj Ceremony was performed by Granthi Lal Singh. His grouse was that the Respondent who was his legally wedded wife, had withdrawn from his society without reasonable cause.

The petition was challenged with the assertion that no marriage had taken place between the parties ; and the parties went to trial on the following issues:

Whether the Respondent is the legaily wedded wife of the Petitioner ?

If issue No. 1 is proved, had the Respondent withdrawn from society of the Petitioner without reasonable cause and excuse ?

Relief.

Voluminous evidence was produced by the Appellant in support of the factum of marriage. Granthi Lal Singh (P.W. 1) who claimed to have presided over the marriage ceremoney, testified that it took the form of Anand Karaj which mainly consists of the recitation of the holy Granth Sahib and "Lavan Pharey". The trial Court discussed the evidence of the Appellant''s witnesses at length and found that the performance of the alleged marriage had remained unproved. Issue No. 1 was, therefore, decided against the Appellant but no finding was given on issue No. 2 and the petition was dismissed due to the marriage having remained (sic) stablished.

At the hearing of the appeal Learned Counsel for the Respondent has raised the contention that even if all the assertions made by the Appellant in the petition dismissed by the trial Court are taken as proved no decree as prayed for can be passed inasmuch as there would still be no valid marriage between the parties In support of the contention reliance is placed on the fact that the parties are Hindus and not Sikhs and it is urged that the only form of marriage which they were permitted to undergo in order that they could be legally regarded as husband and wife was the Hindu from of marriage of which the datta Homam and the saptapadi are two essential features. The contention appears to me to be unexceptionable in view of the provisions of Clauses (a) and (b) of Sub-section (1), Sub-section (3) of Section 2 and of Section 7 of the Act which may be reproduced here for facility of referrence:

(1) This Act applies-

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

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

(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.

(1) A Hindu marriage may be solemnized in accordance with the customary rities and ceremonies of either party thereto.

(2) Where such (sic) and ceremonies include the saptapadi (that is, the taking of seven steps by the bridgroom and the bride jointly before the scared fire) the marriage becomes complete and binding when the seventh step is taken.

A bare perusal of clauses fa) and (b) of Sub-section (1) of section 2 makes it clear that the Sikh religon which permits the Anand Karaj form of marriage is treated by the Act as distinct from the Hindu religon which does not recognise as valid any marriage ceremony wherein the datta homam and saptapadi are not performed. It is true that Section 7 recognises all customary rites and ceremonies as sufficient for any "Hindu" marriage to be legally valid but then it was not even pleaded by the Appellant that although both the parties were Hindus by religion, either of them could be married according to custom in the Anand Karaj form which only the Sikhs normally recognise. The expression "Hindu marriage" no doubt embraces all marriages to which either party is a Hindu a Sikh, a Jaina or a Buddhist but then for such marriage to be valid, the tenets of each religion have to be kept in view so that a (sic) would be valid only (sic) the ceremony through which it is solemnized is sane ioned by the religion of either party as a customary ceremony. This view finds support from Shakuntala v. Nikanath 1973 Mh. L. J. 310, wherein Masodkar, J observed:

There is no evidence led in this case that such form of marriage recognised by any custom in a particular caste of the Hindus The Hindu law, as is codified on the subject of marriage, does not at all help the complainant. What Section 2 of Hindu Marriage Act speeks of is the application of the Act to any person who is a Hindu by religion in any of its forms or developments and also to person who is a Buddhist, Jain or Sikh by religion. Sub-section (3) Section 2 speaks that the expnession ''Hindu'' has to be construed as it includes 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. The provisions of Section 2, therefore, clearly show that they primarily apply to Hindus who profess that religion including all of its forms or developments. Similarly, it applies to persons who are Buddhists, J inas(sic) or Sikhs by religion. That itself shows that Buddhists are treated as a class different from Hindus. Both the content and the concept of Hinduism and the Budhism for over a period of history have shown a complete divergence It might be that originally Budhism or Jainaism were the off-shoots of Hinduism but once that discipline was born, it constituted separate independent code of religion having certain fundamental beliefs as well as practices and objectives different from the Hindu faith. History is strawn with the philosophical and political fights between these competing faiths and in its wake the hostility evidenced on the Indian soil though it had the effect of polarising these growths in distinct and differing idealogies. Though Hinduism in course of times gained ascendancy followed by an era of tolerance and sympathy for the faiths of Budhists, Jains, Sikhs, the latter gained an identity as a religion for itself. This historical fact is behind the terms of Section 2 of the Hindu Marriage Act when it makes the application of the Act by inclusion to the persons who profess Budhist, Jains, or Sikh religion. The Legislature itself has called it a religion, separate from Hindu religion and nature Court of law that is sufficient indication of the legislative intent.

Therefore, for the application of the provisions of the Hindu Marriage Act what must first be established is what was the religion of the parties who seek to establish their marriage. Here in this case if the parties had not embraced Budhism on the date of marriage, it follows that they were Hindus by religion and what must be established is Hindu Marriage between the parties.

X X X X

To a Hindu, marriage is not a matter of agreement or contract but is a spiritual union of two souls. Holy invocation before the fire and saptapadi are the minimum requisites for the solemnisation of the Hindu marriage. Unless, therefore, it is established that there is a different custom which admits of any different form of marriage known to the Hindu Law, these rites and ceremonies will have to be established by the complainant before any claim that the spouse is guilty of the offence u/s 496, Indian Penal Code, is made in such a case.

With the utmost respect I find myself in full agreement with these observations.

In the present case, the Appellant has neither pleaded nor shown that according to custom applicable to either of the parties both of whom are Hindus, the marriage between them could have been validly solemnized in the Anand Karaj form. It must be held in the circum-stances that the only form of marriage on the performance of which they could legally be regarded as husband and wife is the one dealt with in Sub-section (2) of Section 7. Admittedly no such marriage took place and the consequence is that the Appellant cannot claim any relief under the Act against the Respondents

For the reasons stated the appeal fails and is dismissed but the parties are left to bear their own costs.