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2014 DIGILAW 2157 (BOM)

Viraf Phiroz Bharucha v. Manoshi Viraf Bharucha

2014-10-13

A.R.JOSHI, V.K.TAHILRAMANI

body2014
JUDGMENT V.K. Tahilramani, J. 1. We have heard the learned counsel for the appellant. None appears for the respondent though served. Taken up for final hearing and disposal forthwith. 2. The appellant-husband has preferred this appeal against the judgment and decree dated 24th February, 2014 passed by the learned Judge of the Family Court No. 6, Mumbai. By the said judgment and decree, the learned Judge of the Family Court dismissed the Petition bearing No. A-845 of 2011 preferred by the appellant under Section 11 of the Hindu Marriage Act, 1955 claiming for a decree of nullity of marriage. 3. The case of the appellant is that he and the respondent got married on 15th April, 1999 at Mumbai according to Hindu Vedic Rites. On 4th August, 2001 they were blessed with a baby boy. It is the case of the appellant that he was a `Parsi' by religion at the time of the marriage and continues to profess his faith in the said religion and the respondent was a Hindu at the time of marriage and continues to be a `Hindu. His case is that the respondent left the matrimonial home in the year 2006. He then filed Petition No. A-2436 of 2009 under Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act on the ground of cruelty and desertion. He withdrew the said petition and thereafter, he preferred Petition No. A-845 of 2011 seeking decree of nullity of marriage. According to him, the cause of action arose to file the present petition on 15th April, 2009 when the marriage took place. 4. We have perused the petition filed by the appellant and the Written Statement filed by the respondent before the Family Court and the evidence led in the case. It is seen that in the Written Statement, the respondent has stated that she is not aware whether the Petitioner (appellant herein) is following `Parsi' religion since birth or not. According to her, the appellant had voluntarily married her. She has pointed out that earlier petition was filed by the appellant on the ground of cruelty and desertion which was withdrawn by him and as far as the present petition is concerned, there is no ground for claiming nullity. To prove the case, the appellant as well as the respondent examined themselves only. 5. The appellant has come up with a very strange case. To prove the case, the appellant as well as the respondent examined themselves only. 5. The appellant has come up with a very strange case. According to him, he is a `Parsi' by birth and continues to profess his faith in the said religion, however, petition was filed by him before the Family Court under the Hindu Marriage Act. 6. According to the appellant, parties got married as per Hindu Vedic Rites and he had not converted to Hindu Religion at the time of marriage. If this is the contention of the appellant, the appellant has to satisfy this Court as to how the appellant filed petition before the Family Court seeking decree of nullity under the provisions of the Hindu Marriage Act. 7. The petition is preferred by the appellant before the Family Court seeking relief under Section 11of the Hindu Marriage Act. Section 11 reads as under: 11. 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. 8. Even assuming that the case of the appellant is true, the appellant is expected to show which of the provisions of Section 5 of the Hindu Marriage Act was contravened by the respondent. Section 11clearly states that the marriage shall be null and void if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. The relevant portions of Section 5 read as under: 5. Conditions 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; (ii)..... (iii)..... (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; 9. It is not the case of the appellant that he or the respondent were earlier married and hence, had a spouse living at the time of the marriage. It is not the case of the appellant that he or the respondent were earlier married and hence, had a spouse living at the time of the marriage. It is not even his case that they are within the degrees of prohibited relationship or are sapindas of each other. In such case, the marriage cannot be held to be null and void under Section 11 of the Hindu Marriage Act. 10. If, we consider the facts which are undisputed by the appellant then the appellant was a Parsi by religion and respondent was a Hindu. They performed marriage as per Hindu rites and rituals. It is also not disputed by him that after marriage they continue to practice or profess their respective religions. Therefore, the first and foremost question which falls for our consideration is whether at all the provisions of the Hindu Marriage Act can be invoked by the appellant to claim any relief. In this context, it would be useful to refer to the provisions of Section 2 of the Hindu Marriage Act which provide for applicability of the provisions of the said Act. Relevant portions of Section 2 of the Hindu Marriage Act read as under: "2. Application of Act (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 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. Explanation--The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be-- (a) ..... (b) ..... and, (c) ...... (2) ...... (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." 11. (b) ..... and, (c) ...... (2) ...... (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." 11. Thus a plain reading of Section 2 explicitly provides that the provisions of the Hindu Marriage Act can be availed and are applicable when both spouses are Hindus and it does not apply to any party who is a Parsi, Jew, Christian or Muslim. The appellant is a Parsi so he cannot avail of the provisions of this Act. It is also necessary under the Act that at the time of filing of petition, both the spouses are Hindus by religion except for seeking remedy of divorce under Section 13(1)(ii) of the Hindu Marriage Act on the ground of person ceasing to be a Hindu due to conversion to another religion. 12. Sections 2 and 5 of the Hindu Marriage Act provide the applicability of the Act and conditions for a Hindu marriage. The scope of Sections 2 and 5 of the Hindu Marriage Act has been discussed elaborately by a Division Bench of this Court in the case of Niranjani Roshan Rao Vs. Roshan Mark Pinto 1 (2014) DMC 124 (DB) (Bom) : 2014(5) All MR 292 to which one of us (Smt.V.K. Tahilramani, J.) was a party. In this case, the wife had filed a petition for declaration that the marriage is null and void. She admitted that the respondent was Christian by religion. The trial Court had rejected the petition in view of Order VII Rule 11 of the Code of Civil Procedure. In the said case, the order of the trial Court was upheld and it was held that "for inter religion marriages, the provisions of Hindu Marriage Act, are not applicable." 13. The learned counsel for the appellant placed reliance on the decision of the Supreme Court in the case of Gullipilli Sowria Raj Vs. Bandaru Pavani @ Gullipilipavani 2009 (2) Mh.L.J. 850 to claim that in view of the fact that the appellant is a `Parsi' and the respondent is a `Hindu', the Family Court should have declared the said marriage to be a nullity. Bandaru Pavani @ Gullipilipavani 2009 (2) Mh.L.J. 850 to claim that in view of the fact that the appellant is a `Parsi' and the respondent is a `Hindu', the Family Court should have declared the said marriage to be a nullity. On perusal of the said decision, we find that the respondent-wife had filed petition before the Family Court under Section 12(1)(c) of the Hindu Marriage Act for decree of nullity of the marriage on the grounds mentioned in the petition. The main ground in the petition for declaring the marriage to be a nullity was misrepresentation by the appellant regarding his social status and that he was a Hindu by religion. The said petition was not under Section 11 of the Hindu Marriage Act as is the petition in the present case. It is not a case of the appellant that the respondent had made any false statements or misrepresentations to him regarding her religion. The respondent has not hidden the fact that she was a Hindu at the time of the marriage. Thus, this decision cannot be made applicable to the facts of the present case. 14. The learned counsel for the appellant then urged that the Family Court was not right in rejecting the petition under Order VII Rule 11 of C.P.C. and he submitted that in view of Section 7 of the Family Court Act, the Family Court could have entertained the petition. Section 7 of the Family Court Act is procedural and does not give any substantive right to any party. Thus, we find no merit in this contention. 15. Thereafter, reliance was placed on the decision in the case of Nilesh Narin Rajesh Lal Vs. Kashmira Bhupendrabhai Banker AIR 2010 Gujarat 3. The learned counsel for the appellant pointed out that in the said case, marriage had taken place between a Christian gentleman and a Hindu lady and the marriage was declared as null and void. We find that the facts therein are slightly different from the facts in the present case. In the present case, there is no fault on the part of the respondent. In fact in the present case in the earlier round of litigation, the appellant has himself admitted the marriage ceremony and he had prayed for divorce on the ground of cruelty and desertion. Therefore, this ratio would not be helpful to the appellant in the present case. In fact in the present case in the earlier round of litigation, the appellant has himself admitted the marriage ceremony and he had prayed for divorce on the ground of cruelty and desertion. Therefore, this ratio would not be helpful to the appellant in the present case. Moreover assuming the case law fits the present case, this is a decision of the Gujarat High Court, hence, at the most it can have persuasive value. However, when there are two decisions of the Division Benches of our very own Court holding in similar circumstances that the petition before the Family Court was not tenable, we would naturally be inclined to follow the view taken by our Court. One of the decisions is in the case of Niranjani Roshan Rao (supra), which has already been discussed by us in the earlier paras of this judgment. The second decision is in the case of Smt. Neeta Kirti Desai Vs. Bino Samuel George 11 (1998) DMC 134 (DB) : 1998 (1) Bom.C.R. 263 . 16. The issue raised in this petition remains no more res integra in view of the decision of the Division Bench of this Court in the case of Niranjan Roshan Rao (supra) and Smt. Neeta Kirti Desai (supra). This Court in the case of Neeta Kirti Desai has held that when both the spouses are Hindus, they are regulated under the Hindu Marriage Act. If one of the party to such marriage is not a Hindu, the provisions of the Hindu Marriage Act cannot be invoked to seek a remedy under the Hindu Marriage Act. This Court has further held as under: "The Family Court Act creates a forum. The Family Court Act has not settled the rights and obligations between the parties viz. Restitution of conjugal rights, judicial separation, nullity of marriage and divorce. When both the spouses are Hindus, they are regulated under the Hindu Marriage Act, 1955. Undisputedly, petition was presented on the ground that at the time of marriage, petitioner's husband was a Christian. If that be so, having regard to the provisions of Section 2, the Hindu Marriage Act, 1955 has no application for seeking any of the reliefs including the nullity of marriage. Petition, as presented, was, therefore, untenable". 17. Undisputedly, petition was presented on the ground that at the time of marriage, petitioner's husband was a Christian. If that be so, having regard to the provisions of Section 2, the Hindu Marriage Act, 1955 has no application for seeking any of the reliefs including the nullity of marriage. Petition, as presented, was, therefore, untenable". 17. Considering the pleadings in the petition in the present case before the Family Court, it is clear that there was no cause of action to the appellant to file such petition and the petition was barred by law and the Family Court has rightly held that there was no cause of action to file the petition and the petition was barred by law. 18. Last but not the least, it is admitted by the appellant that he got married to the respondent long back i.e. in the year 1999. The petition was filed before the Family Court in the year 2011. There is delay of 12 years and in between a baby boy was born to the parties on 4th August, 2001. The child was born out of the said wedlock. No reason is pointed out by the appellant to show that what compelled him to suddenly realize that he belonged to a different religion and therefore, the marriage should be declared a nullity. This shows that the appellant is taking advantage of his own wrong. 19. After carefully considering the matter, we are of the opinion that the Family Court was right in holding that there was no cause of action to the appellant to file the petition and the petition was barred by law. Thus, we find no merit in this appeal and the appeal is dismissed with no order as to costs.