The Bombay High Court has held that a Hindu married to a
non-Hindu in accordance with Hindu rituals cannot seek divorce under
the Hindu Marriage Act.
Accordingly, a bench headed
by Justice V.K. Tahilramani upheld a family court order which rejected a
petition filed by Niranjani Roshan Rao, a Hindu, seeking divorce from
husband Roshan Pinto on the ground that he was a Christian at the time
of marriage and was professing the same religion till today.
As
the family court rejected her petition, she moved the High Court,
which, on December 24, rejected her appeal and upheld the lower court
order.
‘Perfectly legal order’
“We
are of the view that an order passed by the learned judge of the Family
Court is perfectly legal and calls for no interference in exercise of
appellate jurisdiction,” said the bench while dismissing the appeal.
The
appellant had filed the petition in family court seeking a decree of
nullity of marriage and alternatively claimed divorce on the grounds of
cruelty. She said, on January 13, 1999, she was married to the
respondent as per Hindu rituals. At the time of marriage, she was a
Hindu while the respondent was a Christian.
After
their marriage, they continued to profess their respective religions.
Even at the time of filing the petition, they continued to practise and
follow their respective religions.
The appellant-wife
argued that the marriage was null and void as it was in contravention
of essential condition of valid marriage provided under Section 5 of the
Hindu Marriage Act, i.e. both the partners should be Hindus at the time
of marriage.
The family court rejected the petition
in exercise of powers under Order 7 Rule 11 of C.P.C, as the petition
did not disclose any triable cause of action.
In
other words, the family court said the petitioner had no right to file
such a petition under the Hindu Marriage Act and as such cannot seek any
relief. Both were not Hindus at the time of marriage and hence do not
fulfil the conditions laid down under the Act. The High Court observed
that the appellant herself had stated that the respondent was not a
Hindu at the time of marriage or thereafter.
“If this
condition is not fulfilled and there was no contravention of provisions
under Section 5 of the Hindu Marriage Act, the family court was right
in saying that she had no right to file such a petition,” the bench
said.
Moreover, provisions of the Hindu Marriage Act
can be applied in cases when both the spouses were Hindus and their
marriage is performed as per Hindu rites and rituals, the judges said.
It
is also an essential condition under the Act that at the time of filing
a petition for divorce, both the spouses were Hindus by religion, ruled
the bench. — PTI
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