TMI Blog2008 (12) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... issed. - CIVIL APPEAL NO. 2446 OF 2005 - - - Dated:- 4-12-2008 - ALTAMAS KABIR AND ALAM, AFTAB, JJ. JUDGMENT ALTAMAS KABIR, J. 1. The only question which falls for determination in this Civil Appeal by way of Special Leave is whether a marriage entered into by a Hindu with a Christian is valid under the provisions of the Hindu Marriage Act, 1955. 2. The appellant, who is a Roman Catholic Christian allegedly married the respondent, who is a Hindu, on 24.10.1996, in a temple only by exchange of `Thali' and in the absence of any representative from either side. Subsequently, the marriage was registered on 2.11.1996 under Section 8 of the Hindu Marriage Act, 1955, hereinafter referred to as the 1955 Act . 3. Soon thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As against the above, a novel argument has been advanced on behalf of the appellant, the substance whereof is that the Hindu Marriage Act, 1955 does not preclude a Hindu from marrying a person of some other faith. In order to assist the Court in regard to such a submission, the Court had requested Mr. U.U. Lalit, learned Senior Advocate, to assist the Court in the matter. 7. Mr. Lalit firstly took us through the provisions of Section 5 of the 1955 Act which prescribes the conditions for a Hindu marriage. The opening words of Section 5 are as follows: A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely :... 8. Mr. Lalit submitted that the use of the word `may' in the opening words of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he expression `may' has been used in Sub-section (1) must be understood to refer to a marriage and not the parties to the marriage. Mr. Mukund submitted that Section 11 of the Hindu Marriage Act, 1955, would, therefore, have an overriding effect over the provisions of Section 5 which, according to him, were optional. Mr. Mukund reiterated that the Hindu Marriage Act, 1955, does not contemplate a valid marriage only between two Hindus, and urged that the High Court had erred in allowing the respondent's application under Section 12(1)(c) of the above Act on such misconception of the provisions thereof. 12. Mr. Y. Rajagopala Rao, learned advocate appearing for the respondent wife, submitted that it will first have to be decided whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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. Explanation.- The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be,- (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist Jaina or Sikh by religion and who is brought up as a member of tribe, community, group or family to which such parents belongs or belonged; and (c) any person who is a convert or re-convert to the Hindus, Buddhist, Jaina or Sikh religion. (2) Notwithstanding anything contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the provisions contained therein had been fulfilled. According to Mr. Rao, the marriage between the parties would have to be categorised within the scope and ambit of Section 12 relating to voidable marriage since a void marriage under Section 11 of the Act had been defined to mean any marriage solemnized after the commencement of the Act if it contravenes any one of the conditions specified in clauses (i)(iv) and (v) of Section 5. Since the marriage of the parties did not fall within the said categories, the respondent had no option but to make an application under Section 12 (1)(c) that the marriage was a nullity on the ground that the appellant had been beguiled into the marriage by the appellant on fraudulent considerations, one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriage amongst Hindus. Section 2 of the Act which deals with application of the Act, and has been reproduced hereinabove, reinforces the said proposition. 21. Section 5 of the Act thereafter also makes it clear that a marriage may be solemnized between any two Hindus if the conditions contained in the said Section were fulfilled. The usage of the expression `may' in the opening line of the Section, in our view, does not make the provision of Section 5 optional. On the other hand, it in positive terms, indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. In other words, in the event the conditions remain unfulfilled, a marriage between two Hindus could not be solemnized. The expression ..... X X X X Extracts X X X X X X X X Extracts X X X X
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