Gaddala Pedda Swamulu vs Vanamala Vanaja
2022 Latest Caselaw 630 AP

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      THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                                       AND

       THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

                           C.R.P. No. 1016 of 2021

ORDER:      (Per Hon'ble Sri Justice C.Praveen Kumar)



1)    Assailing the Docket Order, dated 07.09.2021, wherein,

the O.P. filed under Section 13(1)(ia) of the Hindu Marriage Act,

1955, was dismissed at the threshold as without jurisdiction,

the present C.R.P. is filed under Article 227 of the Constitution

of India.


2)    The circumstances, which lead to the filing of the C.R.P.,

are as under:


i.    The Petitioner/Husband filed O.P. seeking divorce in

      respect of a marriage that took place between him and the

      Respondent/Wife on 12.06.2000. The averments in the

divorce application show that both of them are Hindus and

their marriage was celebrated at A.B.M. Palem Church,

Nandikotkur. After marriage, both of them lived happily for

a period of two months and on 22.12.2020 the

Respondent/Wife left the matrimonial home and started

living with her parents at Kurukundha Village. As she was

pregnant, she joined in a Hospital at Atmakur. It is said

that, the Respondent/Wife forcefully got herself aborted,

which fact came to the knowledge of the

Petitioner/Husband on 01.03.2021. Various allegations

came to be made in the petition seeking divorce on the

ground of cruelty, which may not be necessary for us to

refer at this stage.

ii. Along with said O.P., the Petitioner/Husband filed

documents, which are, (1) wedding card, (2) marriage

photos, (3) Aadhar Card of the Petitioner, (4) Aadhar Card

of Respondent, (5) office copy of the legal notice, dated

26.05.2021, (6) postal acknowledgment, (7) copy of the

F.I.R. No. 230 of 2021, and (8) transfer certificate for

intermediate course. However, the trial Court, at the time

of taking cognizance of the O.P. came to a conclusion that

as per the wedding card and the photographs, the parties

are not Hindus and as such rejected the O.P. for want of

jurisdiction. Challenging the said endorsement, the

present C.R.P. is filed.

3) Sri. Budige Rangaswamy, learned Counsel for the

Petitioner, would submit that, when the averments in the plaint

are to the effect that the parties are Hindus and the documents

filed show that they are Hindus, the Trial Court erred in holding

that the parties are not Hindus and the provisions of Hindu

Marriage Act are not applicable to them.

4) In spite of service of notice, there is no representation on

behalf of the Respondent. Hence, we requested Sri. P. Veera

Reddy, learned Senior Counsel, to assist us as amicus curiae. He

took us through the provisions of the Hindu Marriage Act, 1955;

the Indian Christian Marriage Act, 1872; and also the Special

Marriage Act, 1954, to contend that since the marriage took

place in the Church and as the order indicates that the parties

are not Hindus, an application under the provisions of the

Hindu Marriage Act, 1955, is not maintainable.

5) The point that arises for consideration is, whether the

Court below was right in dismissing the petition at the

threshold for want of jurisdiction?

6) The finding of the trial Court in coming to a conclusion

that the parties are not Hindus was based on wedding card and

photographs, while the averments in the O.P. are to the effect

that they are Hindus. The photograph filed show that the girl

was wearing a white dress covering her face with a Bridal Veil

and the Pastor holding a chain. The bridegroom was standing

next to bride with a garland around his neck. The wedding card

which is filed only refers to names of bride and bridegroom, their

parents, and the venue of the marriage with an endorsement on

top of the wedding card as ఇ వలన క న ర . ఆ : 24: 50,

హ అ షయ ల ఘన న , 13: 4. [This happening due to

divine blessing. Genesis 24:50. Marriage is supreme. Hebru 13:4.]

By this, it is difficult to come to a conclusion that the parties are

not Hindus. Things would have been different had there not

been any dispute with regard to their status.

7) In fact, the learned Amicus Curiae placed reliance on

various judgments of the Hon'ble Supreme Court and High

Courts, viz., Gullipilli Sowria Raj V. Bandaru Pavani alias

Gullipili Pavani1; Padullaparthi Mutyala Paradeshi V.

Padullaparthi Subbalakshmi and another2; Chanmuniya V.

Virendra Kumar Singh Kushwaha and Another3; Smt.

Shanta Devi and Others V. Ramlal Agarwal4; Vadde Rama

Rao V. State of Andhra Pradesh5, and K. Hema Kumari V.

D.P. Yadagiri6. In all these cases, the trial Court after

considering the evidence let in during the course of trial, dealt

with legal issues, namely, whether the provisions of the Hindu

Marriage Act would apply to the fact situation therein.

8) Further as seen from the material available on record, the

Court below returned the H.M.O.P., without even numbering the

same on a premise that the parties to the lis are not Hindus and

the provision of Hindu Marriage Act, would not apply. We feel

that the Court below should have taken the case on file; allowed

the parties to adduce the evidence and then decide the issues

involved in the case, mainly, (1) whether the parties even if they

are Hindus and married in a Church, can make an application

for divorce under the provisions of the Hindu Marriage Act;

(2)whether there is a bar under the provisions of the Hindu

Marriage Act for making an application seeking divorce under

1 (2009) 1 Supreme Court Cases 714 2 AIR 1962 AP 311 3 (2011) 1 Supreme Court Cases 141 4 AIR 1998 AP 286 5 (1989) 3 ALT 529 6 (2012) 4 ALD 604 (DB)

the provisions of the Hindu Marriage Act if they are not Hindus.

Various other host questions may also fall for consideration once

the evidence is adduced.

9) Having regard to the above, we hold that the rejection of

the application on the ground that parties are not Hindus is

premature and without material. Hence, the order under

challenge is set-aside and the matter is remanded back to the

trial Court to dispose of the same in accordance with law after

the evidence is adduced.

10) Before parting with the case, the Court places its

appreciation and gratitude to the learned Senior Counsel

Sri. P. Veera Reddy and also to the Counsel assisting him for the

valuable inputs and innumerable cases cited.

11) With the above direction, the Civil Revision Petition stands

disposed off. No order as to costs.

12) Consequently, miscellaneous petitions, if any, pending

shall stand closed.

_______________________________ JUSTICE C.PRAVEEN KUMAR

_______________________________ JUSTICE RAVI NATH TILHARI Date: 04.02.2022 S.M.../

THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR

AND

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

C.R.P. No. 1016 of 2021 (Per Hon'ble Sri Justice C.Praveen Kumar)

Dt. .02.2022.

SM