HON'BLE SRI JUSTICE U. DURGA PRASAD RAO
AND
HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD
C.M.A.No.4498 of 2004
JUDGMENT: (Per Hon'ble Sri Justice U. Durga Prasad Rao)
The important question that engages in our mind in this
appeal is, whether the Hindu Marriage Act, 1955 has application
where one of the spouses to the marriage is not a Hindu and
consequentially, whether a divorce can be granted on the petition
filed by one of such parties in accordance with the provisions of the
Hindu Marriage Act, 1955.
2. The appellant herein filed H.O.P No.20/2002 on the file of
Senior Civil Judge, Nandikotkur U/s 13(1)(i)(ia) of the Hindu
Marriage Act, 1955 seeking decree for divorce on the main
averments that the appellant is a Hindu belongings to SC
community. The respondent is also a Hindu and their marriage was
performed on 03.05.1999 at his residence in Choutapalli Village, Proddutur Mandal, Kadapa District as per Hindu rites and customs and marriage was consummated immediately and the respondent joined him and for brief time they led happy marital life and 2 thereafter the respondent left his society and went away to Nandikotkur to her parental home and on enquiry he came to know that she is having illicit connections with the 2nd respondent. The mediations were held but not fructified. Hence on the grounds of adultery, cruelty and desertion, he filed the O.P. The 1st respondent challenged the maintainability of the O.P. under the Hindu Marriage Act, 1955 on the ground that she is a Christian and marriage between the petitioner and her took place on 03.05.1999 at T.C.C Church, Choutapalli but not in the residence of the petitioner as per Hindu Rites and Customs as alleged in the petition. The marriage was performed according to the tradition and customs prevailing in Christian community. Christian Fathers Mathai and Balasundaram officiated the marriage as per Christian customs and therefore the divorce application under the Hindu Marriage Act was not maintainable. In her counter she denied the allegation touching the aspects of adultery, cruelty and desertion etc.
3. Both the parties led oral and documentary evidence. The trial Court framed the following points for consideration: 3
1. Whether the marriage between the petitioner and 1st respondent was performed as per Hindu rites and customs as contended by the petitioner?
2. Whether the petitioner has proved that mental cruelty meted to him by first respondent by way of adulterous life with the second respondent?
3. Whether the petitioner is entitled for divorce?
4. Point No.1 is concerned, having regard to the oral and documentary evidence the trial Court came to the conclusion that the evidence produced by respondent would amply prove that the marriage between the parties was held as per Christian customs and the petitioner could not substantiate that his marriage was performed as per Hindu rites and customs though the petitioner is a Hindu Mala (Scheduled Caste).
5. So far as Point No.2 is concerned, the trial Court held that the petitioner failed to produce any reliable evidence to come to conclusion that the 1st respondent had illegal intimacy with the 2 nd respondent and that she had treated him with cruelty. On these findings the trial Court dismissed the petition. Hence, the appeal. 4
6. Heard learned counsel for appellant Sri Seshagiri Rao. There is no representation for respondents.
7. Learned counsel fulminated the trial Court's order arguing that both parties are Hindus belonging to Mala Community and therefore the divorce application is maintainable and trial Court erred in holding that the marriage was performed as per Christian customs despite overwhelming oral and documentary evidence produced by the petitioner to show that the marriage was held as per Hindu customs and rites. Learned counsel would also argue that the trial Court committed error in discarding the evidence relating to the adulterous life of the 1st respondent with 2nd respondent and her cruelty towards him. He thus prayed to allow the appeal.
8. We gave our anxious consideration to the above arguments and scrutinized the oral and documentary evidence adduced by either party. On careful scrutiny, we agree with the appellant/petitioner that he is a Hindu Mala belonging to SC community as Ex.A1-Caste Certificate and Ex.A2-Community, 5 Nativity and Date of Birth Certificate show that he is Indian Hindu Mala (Scheduled Caste). To this extent there is no demur. However, so far as 1st respondent is concerned, her claim is that they are Christians as her father Devanandam Worked as MRO and died and her mother is Milkamma. She has three brothers namely Philip Clemant, Jaykar Jhonson, Satish Joseph and a sister by name Indira Samadanamma and they belong to Nandikotkur. Her further case is that on 20.02.1999 the betrothal between the parties was performed in the house of one Satyaraju her paternal uncle, whereas marriage was held in T.C.C Church, (Telugu Church Counsel), Choutapalli as per Christian customs. Reverend Muttaiah, and Rev. Balasundaram, the priests of the Church performed the marriage. She thus claimed that they are converted Christians and marriage was held as per Christian customs and the divorce application is not maintainable as per the Hindu Marriage Act. She denied the illegal intimacy with the 2nd respondent.
9. In this context, as rightly observed by the trial Court the appellant/petitioner except filing wedding card, could not produce any cogent oral and documentary evidence to show that his 6 marriage was performed as per Hindu customs and rites. On the other hand, the respondent has produced overwhelming evidence in the form of Ex.B1 to B15 which contain photographs and invitation card showing that the marriage was performed as per Christian customs and rites. Further, she produced Ex.B16 transfer certificate which shows that the respondent is a Indian Christian - Adi Andhra. It is no doubt appellant/petitioner suggested in the cross examination that Adi Andhra is only one form of Scheduled Caste and therefore she is also a Hindu. However, she flatly denied the same and claimed to be a Christian and belong to BC-C community. Appellant /petitioner could not submit cogent reasons as to why the marriage was solemnized according to the Christian rites and customs if both of them are Hindus. So even admitting appellant/petitioner's contention for argument sake that both the parties are Hindus, still the evidence clinchingly establishes that marriage was performed not as per Hindu customs and rites but as per customs of the Christianity and marriage was held at T.C.C. Church. In this backdrop, the trial Court rightly refused to grant any relief to the petitioner as he failed to prove that respondent is 7 also a Hindu, their marriage was held as per Hindu customs and rites and that respondent lives in adultery with 2 nd respondent and thus treated petitioner with cruelty. In similar circumstance, in Sangeeta v. Preston Gomes1, the leaned Judge of the High Court of Delhi observed thus:
"8. Now coming to the facts of the case at hand, in the present appeal, the Respondent as his name suggests, is a Christian. Nowhere in the petition the appellant has disclosed that prior to solemnization of the marriage on 24.11.2007, the Respondent had converted himself into Hindu religion. In the petition also the Appellant has not stated that the parties were Hindus on the date of solemnization of their marriage. Mere fact that the parties had solemnized the marriage as per the Hindu rites and ceremonies would not attract the applicability of the Hindu Marriage Act as the mandate of the law is that marriage has to take place between two Hindus."
In the instant case also, one of the parties to the marriage is a Christian and marriage was held in accordance with the Christian ceremonies and rites. As such the petitioner cannot seek divorce in accordance with the provisions under the Hindu Marriage Act, 1955. We find no merits in the appeal.
1 MANU/DE/3589/2010 8
10. Accordingly, the appeal is dismissed, however, giving liberty to the appellant/petitioner to pursue his remedy under relevant laws if he is so advised. No costs.
As a sequel, interlocutory applications pending, if any, shall stand closed.
__________________________ U. DURGA PRASAD RAO, J _____________________________ G. RAMAKRISHNA PRASAD, J 20.10.2022 Krk / Mva