2018 Supreme(Mad) 4446

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, C. SARAVANAN, JJ.
K. Shanmugha Raja @ Raja - Appellant
Versus
Shanthakumari - Respondent
Civil Miscellaneous Appeal No. 1474 of 2017
Decided On : 30-11-2018

Headnote:

Hindu Marriage Act, 1954 – Sections 2(1)(a),2(1)(c),5,7,11, 13 (1) (ia) (ib) (ii) - . Special Marriage Act – Section 5 to 13,18,25,27 - Indian Christian Marriage Act, 1892 - Section 4,10,11 - Divorce Act, 1869 – Section 2 ,7A - Family Courts Act – Section 7,7(1) - Hindu Succession Act, 1956 - Dissolution of marriage - Marriage was not consummated owing to frequent desertion of respondent to her parents house - It is also contention of the appellant that the respondent stayed with him only for 15 days after the marriage in the matrimonial home. While so, the appellant came to know that the respondent gave birth to a female child. The appellant disowned his paternity of the female child by stating that he is always ready to subject himself to any medical test to show that the female child was not born to him - . According to the appellant, he is a devotee of the deity Ayyappa Swamy and used to go on pilgrimage to Sabarimala at Kerala after wearing Thulasi malai and by observing fasting. While so, when the appellant was observing fasting by wearing Thulasi Malai, the respondent, her parents and relatives came to the matrimonial home and threatened to remove the Thulasi Malai by stating that they belonged to Christianity and insisted on him to convert himself to Christianity. At this juncture, the appellant came to know that the respondent is a Christian by religion. When the appellant refused to convert himself to Christianity, he was threatened by the respondent and her relatives with dire consequences. The appellant therefore lodged a complaint dated 01.12.2003 before the All Women Police Station, Erode against the respondent and her parents based on which a case was registered in Crime No. 615 of 2003. On the basis of such complaint, an enquiry was conducted by the Police officials, during which the respondent agreed to live with the appellant in a separate house. It was also agreed that the respondent or her parents or relatives will not compel the appellant to convert himself to Christianity. Further it was agreed that the respondent had taken away all the jewels presented to her at the time of the wedding and they are in a safety locker. According to the appellant, even though the respondent agreed to join the matrimonial company of the appellant, she did not turn up. The appellant waited for the respondent to come back to the matrimonial home but all the efforts taken by him for about two years went in vain. According to the appellant, since the respondent belonged to Christianity and it was suppressed at the time of the marriage with him, the marriage itself is void. Therefore, the appellant filed the Original Petition for dissolution of marriage on the grounds of desertion, cruelty and conversion. –. According to the respondent, the averment that the marriage was not consummated is per se untenable. Even on the nuptial night on 01.09.2003, there was physical relationship between the appellant and the respondent and therefore, the allegation that the marriage had not been consummated is incorrect. Even after marriage, the appellant and the respondent had cohabitation and therefore the allegation that the respondent deserted the matrimonial company of the appellant frequently and that there was no cohabitation between them is baseless. In any event, after the marriage, the respondent left the matrimonial company of the appellant to her parents house only once, that too with the prior permission of the appellant. The respondent never stayed in her parents house for 15 days altogether, as alleged. The allegation that the respondent and her parents restrained the appellant from going to Sabarimalai Pilgrimage to have a darshan of Lord Ayyappa is an utter falsehood. The respondent has great tolerance and faith in other religion as well. The appellant believed in Hinduism while the respondent professed Christianity. However, there was no differences of opinion between the appellant and the respondent with respect to the religion in which they have faith. The matrimonial rift has been caused owing to the demand made by appellant and his family members for more cash and jewels from the parents of the respondent - to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984 has an overriding effect on other laws. - whether the provisions of Special Marriage Act, 1954 will apply to a marriage solemnised between a Hindu and Christian. - whether the appellant can be left remediless without any avenue for redressal of his grievance - Held, We have given our thoughtful consideration to the submissions made by the counsel for both sides as also the arguments advanced by the learned Amicus Curiae. We have carefully gone through the material records placed before us for our consideration.It is the case of the appellant that his marriage with the respondent was solemnised on 01.09.2003 at K.G.M. Thirumana Mandapam (Kulalar Thirumana Mandapam), Nadarmedu, Erode District as per Hindu rites and customs. It is also his case that subsequent to the marriage, by reason of frequent desertion of the respondent to her parents house, the marriage did not consummate and he was denied matrimonial bliss by the respondent. It is also his case that the respondent lived with him only for 15 days altogether and thereby denied him conjugal bliss and subjected him to acute matrimonial cruelty. Above all, it is mainly contended that the respondent, her parents and relatives forced him to convert to Christianity thereby rendering the matrimonial relationship between him and the respondent a otiose. It is his contention of the appellant that the respondent was given in marriage to him by suppressing her religion as a Christian and he was not aware of the fact that the respondent was born and brought up as a Christian. The appellant also claimed that he did not father a child through the respondent and thereby denied the paternity of the child born to the respondent soon after the marriage. We have given our thoughtful consideration to the submissions made by the counsel for both sides as also the arguments advanced by the learned Amicus Curiae. We have carefully gone through the material records placed before us for our consideration.. It is the case of the appellant that his marriage with the respondent was solemnised on 01.09.2003 at K.G.M. Thirumana Mandapam (Kulalar Thirumana Mandapam), Nadarmedu, Erode District as per Hindu rites and customs. It is also his case that subsequent to the marriage, by reason of frequent desertion of the respondent to her parents house, the marriage did not consummate and he was denied matrimonial bliss by the respondent. It is also his case that the respondent lived with him only for 15 days altogether and thereby denied him conjugal bliss and subjected him to acute matrimonial cruelty. Above all, it is mainly contended that the respondent, her parents and relatives forced him to convert to Christianity thereby rendering the matrimonial relationship between him and the respondent a otiose. It is his contention of the appellant that the respondent was given in marriage to him by suppressing her religion as a Christian and he was not aware of the fact that the respondent was born and brought up as a Christian. The appellant also claimed that he did not father a child through the respondent and thereby denied the paternity of the child born to the respondent soon after the marriage - Although, an attempt has been made to establish that the Hindu Marriage Act, 955 did not prohibit a valid Hindu Marriage of a Hindu and another professing a different faith, we are unable to agree with such submissionz in view of the definite scheme of the 1955 Act......Section 2 of the Act which deals with application of the Act, and has been reproduced hereinabove, reinforces the said proposition. Section 5 of the Act, thereafter, also makes it clear that a marriage may be solemnised 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 solemnised 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 solemnised. 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 solemnised 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 admission of appellant that he was and still is a Christian belonging to the Roman Catholic denomination, the marriage solemnised 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 - Appeal is dismissed