DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

NAME OF THE PROJECT TOPIC

CASE ANALYSIS OF GULLIPILLI SOWRIA RAJ V. BANDARU PAVANI

SUBJECT
FAMILY LAW

NAME OF THE FACULTY

DR. S. RADHAKRISHNA

NAME OF THE STUDENT: ANGELA ELSA JOHN

REGD NO: 2018LLB011
SECTION: A
3RD SEMESTER

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 ACKNOWLEDGMENT

Firstly, I would like to be extremely grateful to my Family Law teacher, Prof. Dr.
S. Radhakrishna for giving me an opportunity to do this project. I will be forever
indebted to him lending his extraordinary support during the process of making the
project. I would also like to thank my friends and family for encouraging me, thus
helping me complete the project in a limited time frame.

I would also like to thank DSNLU for providing all necessary resources and a
suitable workplace, thus helping me come up with a satisfactory project.

Angela Elsa John

18LLB005

Semester 3

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TABLE OF CONTENTS
1) ACKNOWLEGMENT……………………………………………………………………..2
2) COURT…………………………………………………………………………………………4
3) CASE NAME…………………………………………………………………………………4
4) CITATION…………………………………………………………………………………….4
5) BENCH…………………………………………………………………………………………4
6) AUTHOR………………………………………………………………………………………4
7) DELIVERED ON…………………………………………………………………………….4
8) RELEVANT ACTS…………………………………………………………………………..4
9) HEADNOTE………………………………………………………………………………....4
10) FACTS OF THE CASE…………………………………………………………………….4
11) APPELLANT’S CONTENTIONS……………………………………………………….6
12) RESPONDENT’S CONTENTIONS……………………………………………………9
13) REASONING ………………………………………………………………………………..12
14) JUDGMENT………………………………………………………………………………….14

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 GULLIPILLI SOWRIA RAJ V. BANDARU PAVANI

COURT : SUPREME COURT OF INDIA

CASE NAME : GULLIPILLI SOWRIA RAJ V. BANDARU PAVANI

CITATION : CIVIL APPEAL NO. 2446 OF 2005

BENCH : ALTAMAS KABIR, AFTAB ALAM

AUTHOR : A. KABIR

DELIVERED ON : 4 DECEMBER 2008

RELEVANT ACTS : HINDU MARRIAGE ACT, 1955 (SECTION 5,7,

9 8,11,12)

HEAD NOTE:

The only issue of law that falls into question for determination in this Civil Appeal
by way of Special Leave is whether a marriage between a Hindu and a Christian is
valid under the provisions of the Hindu Marriage Act, 1955. Here the provisions
by which the case is disputed are sections 5, 8, 11, 12 of the Hindu Marriage Act,
1955 and Section 2 of the Hindu Marriage Act.

FACTS OF THE CASE:

The appellant is a Roman Catholic Christian, who allegedly married the

respondent, a Hindu on the 24th October , 1996. The alleged marriage took place in

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a Temple and the couple exchanged a ‘Thali’ but there no representative present on
either side. The marriage was registered on 2nd November, 1996 under Section 8 of
the Hindu Marriage Act, 1955.

The appellant is said to have misrepresented his social status and religion. But it
was known only after the alleged marriage, that the other members of his family
also professed Christian faith. He also allegedly physically and verbally assaulted
the respondent during the marriage.

The respondent wife filed a petition at the Family Court at Visakhapatnam on 13 th

March 1997 under Section 12(1)(c) of the Hindu Marriage Act, 1955, for a decree
of nullity of the marriage entered into between the parties on 24 th October, 1996.

The Family Court dismissed the said petition. The respondent wife filed an appeal
against this decision of the Family Court before the High Court.

The High Court allowed the appeal by its judgment and held that the marriage
between a Hindu and a Christian under the Hindu Marriage Act was void ab-intio
and therefore the said marriage was a nullity. This means the marriage was invalid
since the inception of the marriage.

Now a few months after this, the respondent wife married one Dr. Praveen on 23 rd
January, 2003.

The appellant then filed a Special Leave Petition on 23 rd April, 2003, out of which
the present appeal arises.

Now it is an undisputed fact that at the time of the marriage, the appellant was a
Christian and continues to be so and the respondent was a Hindu and continues to
be so. It is also an undisputed fact that the marriage was alleged to have been
performed under Section 8 of the Hindu Marriage Act, 1955.

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The Court requested Mr.U.U Lalit, a learned Senior Advocate to assist the Court in
the matter.

APPELLANT’S CONTENTIONS:

The appellant contended that the Hindu Marriage Act, 1955 does not preclude a
Hindu from marrying a person of some other faith.

First, Mr. Lalit talks about Section 5 of the the Hindu Marriage Act which is as
follows:

A marriage may be solemnized 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 of 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 twenty one years and the bride the

age of eighteen years at the time of the 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;

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(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)

Mr.Lalit had to contend that the use of the word ‘may’ in the opening words of
Section 5 seems to indicate the conditions were not compulsory or mandatory and
therefore the said conditions would not be binding on the marriage that took place
between the appellant and the respondent.

He then dealt with Section 11 of the Hindu Marriage Act which talks about void
marriages:

Void marriages.- Any marriage solemnized 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.

He had to submit that none of the conditions, as indicated in Section 11, apply to
the facts of this case and as such the marriage between the appellant and the
respondant could be said to be a void marriage. According to Mr.Lalit the marriage
could be voidable but not void ab intio. Thus, the High Court according to him,
seems to have had an erroneous footing.

The Counsel for the appellant was Mr. C. Mukund, who took on the same lines of
argument given by Mr. Lalit. He had to say that the heading of Section 5 was a
misnomer, due to the use of the word ‘may’. He said that the conditions in Section
5 should be optional.

He also said that Section 7 of the Hindu Marriage Act, 1955 must be understood to
refer to marriage and not parties to a marriage.

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Section 7 of the Hindu Marriage Act :

Ceremonies for a Hindu marriage.-(1) A Hindu marriage may be solemnized in

accordance with the customary rites and ceremonies of either party thereto. (2)
Where such rites and ceremonies include the saptapadi (that is, the taking of seven
steps by the bridegroom and the bride jointly before the sacred fire), the marriage
becomes complete and binding when the seventh step is taken.

He had to contend that Section 11 of the Hindu Marriage Act would have an
overriding effect over the provisions of Section 5, as the conditions in that section,
according to him, was optional. He made it very clear that the Hindu Marriage Act,
1955 does not contemplate a valid marriage only between two Hindus, and urged
that the High Court had erred in allowing the respondent’s application under
Section 12(1)(c) of the Act.

This is what Section 12(1)(c) of the Act says:

Voidable Marriages.-(1) Any marriage solemnized, 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:-

(c) that the consent of the petitioner, or where the consent of the guardian in
marriage of the petitioner was required under Section 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 as to any material fact or circumstance concerning the
respondent.

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DEFENDANT’S CONTENTIONS:

Mr. Y. Rajagopala Rao was the counsel appearing for the respondent wife. He
submitted that the first and foremost thing that has to be done is to check and
decide whether the marriage that took place between the parties was valid under
the Hindu Marriage Act or not. According to him, all the other questions would
arise only after this.

He then submitted the preamble of the Hindu Marriage Act to the Court saying that
the preamble clearly states in unambiguous terms that the Act was promulgated to
amend and codify law realting to marriage amongst Hindus. He makes a strong
contention that the language used in the preamble leaves no room for any doubt
and that the provisions would apply only to Hindus as defined in Section 2, and
this it what it says

Application of Act.- (1) This Act applies,-

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

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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 is a Hindu, Buddhist

Jaina or Sikh by religion and who is brought up as a member of tribe, community,

group or family to which such parents belongs or belonged; and

(c) any person who is a convert or re-convert to the Hindus, 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 "Hindus" 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

whom this Act applies by virtue of the provisions contained in this section.

Now, subsection (1)(c) of the same excludes a person professing Christian faith
from its ambit. Through this contention, he wanted to convey that each religious
sect in India had their own form of marriages which excludes members of other
faith.

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But under the provisions of the Special Marriage Act, a marriage between a
Christian and a non-Christian was held to be valid. But Mr. Rao had a contention
against this too. He simply ststed Section 2 of the Hindu Marriage Act.

He also referred to Section 4 of the Act which states:

Overriding effect of Act.- Save as otherwise expressly provided in this Act.- (a)
any text,rule or interpretation of Hindu Law or any custom or usage as part of that
law in force immediately before the commencement of this Act shall cease to have
effect with respect to any matter for which provision is made in this Act; (b) any
other law in force immediately before the commencement of this Act shall cease to
have effect in so far as it is inconsistent with any of the provisions contained in this
Act.

He said that that any other law which existed before the Hindu Marriage Act will
not continue to exist, rather, the Hindu Marriage Act will prevail or override the
laws that existed before the commencement of the Act.

He also contended that according to Section 5, a marriage could be solemnized

only when the said conditions were fulfilled. According to him, the marriage
between the parties would have to be categorized within the scope and ambit of
Section 12 relating to voidable marriage.

A void marriage under Section 11 of the Act had been defined to mean any
marriage solemnized after the commencement of the Act if it contravenesany one
of the conditions specified in clauses i, iv and v of section 5, namely

Condition for a Hindu Marriage.- A marriage may be solemnized between any two
Hindus, if the following conditions are fulfilled, namely:

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

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(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;

Since the marriage of the parties did not fall within the said categories, the
respondent had no option but to make an application under Section 12 (1)(c) that
the marriage was a nullity on the ground that the appellant had been beguiled into
the marriage by the appellant on fraudulent considerations, one of which was that
he was a Hindu at the time of marriage. Mr. Rao submitted that since a valid
marriage under the Hindu Marriage Act, 1955, could only be performed between
two Hindus the marriage had been rightly declared to be a nullity by the High
Court and its decision did not warrant any interference in this appeal.

Apart from all these questions, another submission was advanced on behalf of the
respondent to the effect that, after the decree passed in her favour declaring the
marriage to be a nullity, she had remarried on 23.1.2003 i.e about 4 months after
the decree declaring her marriage with the appellant to be nullity had been passed.

REASONING:

Although, an attempt has been made to establish that the Hindu Marriage Act did
not prohit a Hindu from marrying a non Hindu, the Court was unable to agree with
such an argument. They referred to the preamble to the Hindu Marriage Act, 1955 ,
which reads as follows:

"An Act to amend and codify the law relating to marriage among Hindus".
(Emphasis added)

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The Preamble itself indicates that the Act was enacted to codify the law relating to
marriage amongst Hindus. Section 2 of the Act which deals with application of the
Act, and has been reproduced hereinabove, reinforces the said proposition.

The court reasoned their decision favouring the respondent using the following
arguments. Section 5 of the Act thereafter also 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 the
Section, in our view, does not make the provision of Section 5 optional. On the
other hand, it in positive terms, indicates that a marriage can be solemnized
between two Hindus if the conditions indicated were fulfilled. In other words, in
the event the conditions remain unfulfilled, a marriage between two Hindus could
not be solemnized. The expression `may' used in the opening words of Section 5 is
not directory, as has been sought to be argued, but mandatory and non-fulfilment
thereof would not permit a marriage under the Act between two Hindus.

Section 7 of the 1955 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.

In the facts pleaded by the respondent in her application under Section 12(1)(c) of
the 1955 Act and the admission of the appellant that he was and still is a Christian
belonging to the Roman Catholic denomination, the marriage solemnized in
accordance with Hindu customs was a nullity and its registration under Section 8
of the Act could not and/or did not validate the same. In our view, the High Court
rightly allowed the appeal preferred by the respondent herein and the judgment and
order of the High Court does not warrant any interference.

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The other question raised regarding the subsequent marriage of the respondent is of
little relevance once the Court has held that the marriage purported to have been
performed between the appellant and the respondent on 24.10.1996 was a nullity.
Hence, no decision is called for in that regard and we also make no observation in
respect thereof.

JUDGMENT:

The Court accordingly dismissed the petition. And it was held that there would be
no order as to costs. It was held that a marriage between a Hindu and a non-Hindu
was invalid under the provisions of Hindu Marriage Act, 1955.

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