Panditi Rathna Raju vs Galipothu Mercy Parimala And Anr
2022 Latest Caselaw 7998 AP

      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

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:

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.

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,

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

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

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.

MANU/DE/3589/2010

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