Delhi High Court
Sangeeta vs Preston Gomes on 13 December, 2010
Author: Kailash Gambhir
IN THE HIGH COURT OF DELHI AT NEW DELHI
MAT. APP. 116/2010
Judgment delivered on: 13.12.2010
SANGEETA ..... Appellant
Through: Mr. Manoj Kumar Srivastava,
Advocate.
Versus
PRESTON GOMES ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR,
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
KAILASH GAMBHIR, J. Oral:
1. By this appeal filed under Section 28 of the Hindu
Marriage Act, 1955, r/w Section 151 of the CPC, the
appellant seeks to challenge the order dated 13.8.2010
MAT. APP. 116/2010 Page 1 of 8
passed by the learned Additional District Judge, whereby the
divorce petition filed by the appellant under Section 13(1)
(ia) of the Hindu Marriage Act was dismissed on the ground
that one of the parties is not a Hindu.
2. Assailing the order dated 13.8.2010, counsel for
the appellant states that merely because the appellant did
not plead in the petition that the respondent was Hindu on
the date of solemnization of the marriage would not result in
dismissal of her petition. Counsel also submits that the
appellant had married the respondent according to Hindu
rites and ceremonies in Arya Samaj Mandir and this by itself
shows that the respondent was Hindu as on the date of
solemnization of her marriage. In support of his arguments,
counsel has placed reliance on the judgment of the Apex
Court in M. Chandra Vs. M. Thangamuthu, 2010 (9)
SCALE.
3. I have heard learned counsel for the appellant.
MAT. APP. 116/2010 Page 2 of 8
4. It would be relevant to set out the Preamble and
Section 2 of the Hindu Marriage Act which deals with the
applicability of the said Act is reproduced as under:
Preamble:
"An Act to amend and codify the law relating to
marriage among Hindus"
....................
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."
5. Clearly, Hindu Marriage Act is not applicable
either to Muslim, Christian, Parsi or Jews as would be borne
out from Section 2 of the Hindu Marriage Act.
6. Section 5 of the Hindu Marriage Act prescribes
conditions for Hindu Marriage. The same is reproduced as
under:
"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) at the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence
of unsoundness of mind; or
(b) though capable of giving a valid consent, has been
suffering from mental disorder of such a kind or to such an extent as
to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity 2[***]
(iii) the bridegroom has completed the age of 3[twenty-one
years] and the bride, the age of 4[eighteen years] at the time of the
marriage;
(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;"
7. As per Section 5 the marriage can be solemnized
only between two Hindus subject to fulfillment of the
conditions laid in the said Section. Definition of Hindu has
been given in Section 2 of the Hindu Marriage Act as referred
above. Here it would also be pertinent to refer to the Hindu
Marriage Rules of this High Court 7(b) & 7(c) which are as
under:
Rule 7. Contents of petition.-In addition to
the particulars required to be given under Order VII, Rule 1
of the Code and Section 20(1) of the Act, all petitions under
Sections 9 to 13 shall state:
.......... .......
(b) whether the petitioner and the respondent
were Hindu by religion at the time of marriage and whether
they continue to be so upto the date of filing of the petition;
(c) the name, status and domicile of the
wife and the husband before the
marriage and at the time of filing the
petition;
(d) ....."
Hence it would be manifest from above that it is imperative to
prove that both the parties were Hindus at the time of the
solemnization of marriage. Here it would be useful to refer to
the division bench judgment of the Bombay High Court in the
case of Dr. Abdur Rahim Undre vs. Smt. Padma Abdur
Rahim Undre AIR 1982 Bom 341 where it was observed as
under:
"Thus it appears that for a conversion there should be a
declaration of one's belief and the said declaration should
be in such a way that is should be known to those whom
it may interest. If a public declaration is made by a
person that he has ceased to belong to one religion and
is accepting another religion, he will be taken as
professing the other religion.
.........
Thus in case of a conversion there should be a change of
heart and honest conviction in the tenets of new religion
in lieu of tenets of the original religion. If a ceremony of
conversion is gone into conscientiously after such an
honest conviction, thee alone there is a conversion of
faith or it can be said that a person is professing another
religion. In case of conversion from one religion to
another a strict proof is required and it cannot be
easily inferred. More so when a person converted
denies even the factum of conversion. As to whether
there in fact a conversion or not must depend on facts
and circumstances of each case and not general rule can
be laid down in that behalf."
It would be evident from the aforesaid observations
that that the Hon'ble Division Bench of Bombay High Court
laid emphasis as to the requirement of a strict proof and that
the conversion from one religion to another not to be easily
inferred.
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.
9. It is a well known principle of civil law that a
person born into or following one religion continues to belong
to such religion subject to conversion to another religion.
Conversion to another religion basically requires change of
faith; it is essentially a matter of conviction. A mere
theoretical allegiance to the Hindu faith by a person born in
another faith does not convert him into a Hindu, nor is a bare
declaration that he is a Hindu sufficient to convert him to
Hinduism. The conversion from one religion to another
religion is a very major decision in one's life and for proving
such a conversion, it is incumbent upon the appellant to
place on record complete facts and documentary material, if
any, to satisfy the court that based on such facts and
supporting material, the appellant had undergone change of
religion. Change of religion cannot be believed merely on
vague oral allegations unsupported by any documentary or
uncorroborated oral evidence. In the absence of any averment
made in the present petition, I do not find any infirmity or
illegality in the order of the learned trial court.
10. The judgment of the Apex Court in M. Chandra's
case (Supra) as cited by the counsel for the appellant is not
applicable to the facts of the present case as in the said case
the Apex Court while dealing with the Representation of the
People Act, 1951 defined the expression 'Hindu' in broader
terms.
11. In the light of the foregoing, there is no merit in
the present appeal and the same is hereby dismissed.
December 13, 2010 KAILASH GAMBHIR, J
Mg
