REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4278             OF 2011 (Arising out of S.L.P. (C) No. 1833 of 2010)

Flg. Officer Rajiv Gakhar                       .... Appellant (s)

Versus

Ms. Bhavana @ Sahar Wasif     .... Respondent(s)

J U D G M E N T  

P. Sathasivam, J.

1)  Leave granted.

2)  This appeal is directed against the final judgment and  

order  dated  01.09.2009  passed  by  the  High  Court  of  

Punjab  &  Haryana  at  Chandigarh  in  FAO No.  72-M of  

2006 (O & M) whereby the High Court  allowed the appeal  

filed by the respondent herein and set aside the judgment  

and  decree  passed  by  the  Additional  District  Judge-I,  

Faridabad in favour of the appellant herein.

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3)  Brief facts:

(a) The appellant is a pilot with the Indian Air Force and  

was posted  as  Pilot  Officer  at  Hakimpet  (Hyderabad)  in  

April, 1997.  In the last week of April, 1997, the appellant  

was traveling by train from Delhi to Hyderabad wherein  

the respondent also happened to be traveling and at which  

time she introduced herself as Bhavana and claimed to be  

the Vice Principal of St. Peters Convent, Vikas Puri, New  

Delhi  and  a  journalist.   During  the  conversation,  

respondent claimed to be a spinster, aged 27 years and  

disclosed  that  she  was  traveling  to  Hyderabad  in  

connection with a book she was writing on Anglo Indians.  

Much  later  the  appellant  learnt  that  she  had  visited  

Hyderabad  for  appearing  in  her  B.A.  examination  from  

Osmania University.

(b)  Subsequently, both of them met at Delhi in the first  

week of July, 1997 and March, 1998 and ultimately the  

respondent  tricked  the  appellant  into  marrying  her  on  

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28.11.1999 at Arya Samaj Mandir,  Rathkhana, Bikaner,  

Rajasthan  as  per  Hindu  rites  and  ceremonies.   The  

respondent also gave a written affidavit to the Arya Samaj  

Mandir that she was a Hindu, a spinster and was never  

married before.    

(c)   In  January,  2000,  the  respondent’s  father  met  the  

appellant at Sona Rupa Restaurant in Nehru Place, New  

Delhi  and  it  emerged  during  the  conversation  that  the  

respondent was a Muslim and her actual name was Sahar  

Wasif  and  her  previous  marriage  had  taken  place  

according to Muslim Law with a Muslim-Wasif Khalil after  

her conversion to Islam and had two children out of the  

said wedlock, namely, daughter Heena (13 years) and son  

Shaz (11 years).  The appellant was totally shocked and  

devastated to hear all this.  On 22.07.2000, an FIR being  

690/2000 was registered against the respondent and her  

brother under Sections 406, 419 and 420 of the Indian  

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Penal Code (in short ‘the IPC’) at the Kalkaji Police Station,  

New Delhi.

(d)  The appellant, thereafter, filed Suit No. 87 of 2000 in  

the  Court  of  Addl.  District  Judge-I,  Faridabad,  under  

Sections 5 and 12 of  the Hindu Marriage Act,  1955 (in  

short ‘the Act’) seeking dissolution of marriage solemnized  

on 28.11.1999 with the respondent at Arya Samaj Mandir,  

Bikaner.  Before the trial Court, the appellant narrated as  

to how he was deceived and cheated by the respondent  

and also claimed that the parties to the petition have been  

living separately from the date of marriage itself and have  

had no cohabitation and nor was there any consummation  

for which reason no issue was born out of the wedlock.

(e)  The trial Court, by order dated 07.03.2006, declared  

the marriage between the parties to the petition a nullity  

and  also  ordered  the  appellant  to  pay  Rs.  2,000/-  per  

month as permanent alimony to the respondent towards  

her maintenance.

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(f)  Aggrieved by the said order, the respondent preferred  

an  appeal  before  the  High  Court  of  Punjab  & Haryana  

whereby  the  learned  Single  Judge  vide  his  order  dated  

01.09.2009 allowed the appeal of the respondent and set  

aside the judgment and decree passed by the Trial Court.  

Aggrieved by the said order, the appellant has preferred  

this appeal by way of special leave before this Court.

4)   Heard  Mr.  Sanjay  Parikh,  learned  counsel  for  the  

appellant-husband  and  Mr.  P.  N.  Misra,  learned  senior  

counsel for the respondent-wife.

5)  It is the grievance of the appellant that the respondent  

by  using  emotional  coercion,  impersonation,  

misrepresentations,  fraud  and  cheating  tricked  the  

appellant  to  marry  her  on  28.11.1999  at  Arya  Samaj  

Mandi, Rathkhana, Bikaner.  It is also his claim that both  

of them married as per Hindu rites and ceremonies.  The  

respondent also gave a written affidavit to the Arya Samaj  

for the performance of the marriage and in that affidavit  

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she claimed that she was a Hindu, a spinster and was not  

married before.  It  is also his claim that after marriage,  

during interaction with her father and relatives, he came  

to  know that  the  respondent’s  actual  name  was  Sahar  

Wasif  and  that  she  had  converted  to  Islam  and  was  

married  to  a  muslim,  she  had  2  children  out  of  her  

previous wedlock, namely, Heena (13 years) and Shaz (11  

years).   Though the respondent has denied the claim of  

the  appellant,  the  Court  of  the  first  instance,  namely,  

Additional  Sessions  Judge  accepted  the  case  of  the  

appellant  and  declared  the  marriage  between  the  

appellant and the respondent a nullity and directed the  

appellant  to  pay  a  sum  of  Rs.  2,000/-  per  month  as  

permanent  alimony  to  the  respondent  towards  her  

maintenance.  When the said order was challenged by the  

respondent-wife, the High Court, by impugned judgment,  

allowed her appeal and dismissed the petition filed by the  

appellant-husband.

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6)   Learned  counsel  for  the  appellant  by  drawing  our  

attention  to  various  factual  details  and  the  findings  

arrived at by the trial Court submitted that the High Court  

committed an error in dismissing the husband’s petition  

to  declare  the  marriage  as  nullity.   He  also  relied  on  

decisions of this Court in  Yamunabai Anantrao Adhav  

vs.  Anantrao  Shivram  Adhav  and  Another (1988)  1  

SCC 530,  M. M.  Malhotra vs.  Union of  India & Ors.  

(2005) 8 SCC 351 and Gullipilli Sowria Raj vs. Bandaru  

Pavani @ Gullipili Pavani (2009) 1 SCC 714 in support  

of his claim.   On the other hand, learned senior counsel  

for  the  respondent-wife  by  taking  us  through  oral  and  

documentary  evidence  led  in  before  the  courts  below  

submitted  that  there  was  no  misrepresentation  or  

cheating  on the  part  of  the  respondent  and in  fact  the  

appellant was aware of all the details and before marriage  

with  the  appellant,  the  respondent-wife  had  undergone  

Shudhikaran  Ceremonies  and  she  was  deemed to  have  

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become a Hindu after such ceremonies.  In other words,  

according  to  him,  the  respondent  was  not  barred  from  

contracting  marriage  with  a  Hindu  after  performing  

Shudhikaran.  

7)  Chapter IV of the Hindu Marriage Act, 1955 (in short  

‘the  Act’)  deals  with  nullity  of  marriage  and  divorce.  

Section 11 says that any marriage solemnized after  the  

commencement of this Act shall be null and void and may,  

on a petition presented by either party thereto, or against  

the other party be so declared by a decree of nullity if it  

contravenes any one of the conditions specified in clauses  

(i), (iv) and (v) of Section 5 of the Act.  Section 12 speaks  

about voidable marriages.  According to this Section, any  

marriage  solemnized,  whether  before  or  after  the  

commencement of this Act, shall be viodable and may be  

annulled  by  a  decree  of  nullity  on  any  of  the  following  

grounds,  namely,  a)  that  the  marriage  has  not  been  

consummated owing to the impotence of the respondent,  

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or b) that the marriage is in contravention of the condition  

specified in clause (ii) of Section 5; or c) that the consent  

of  the  petitioner/guardian  was  obtained  by  force  or  by  

fraud  as  to  the  nature  of  the  ceremony  or  as  to  any  

material fact or circumstance concerning the respondent;  

or d) that the respondent was at the time of the marriage  

pregnant  by  some  person  other  than  the  petitioner.  

Chapter  II  deals  with  Hindu  marriages  and  Section  5  

prescribes conditions for a Hindu marriage.  The section  

begins  with  saying  that  a  marriage  may  be  solemnized  

between  any  ‘two  Hindus’  subject  to  fulfilling  the  

conditions  prescribed  therein.   It  is  clear  that  Hindu  

marriage if is to be solemnized under Section 5 then both  

the parties of such marriage must be Hindus.   

8)  Though the trial Court granted decree holding that the  

marriage between the appellant and the respondent is a  

nullity, the materials placed by the respondent-wife in the  

form of oral and documentary evidence clearly show that  

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there was no contravention of any of the provisions, more  

particularly,  Section 5 of  the Act.   The respondent was  

examined before the trial Court as RW1.  In her lengthy  

statement, she explained all the details including the fact  

that how she converted to Islam to marry a muslim and  

after divorce, by performing Shudhikaran ceremonies, she  

became  a  full  fledged  Hindu  and  there  is  no  bar  in  

marrying Hindu as per Hindu rites and ceremonies.  She  

also explained that the appellant was aware of all these  

details and with full knowledge and consent, marriage of  

the appellant and the respondent was performed as per  

Hindu rites  and ceremonies.   Mr.  P.  N.  Misra,  took  us  

through  the  entire  evidence  of  RW1  in  order  to  

substantiate the above statement.   In her evidence,  she  

explained in detail that her marriage with Wasif Khalil was  

a love marriage wherein her parents had also consented.  

She further deposed that she converted to Muslim religion  

only at the time of marriage with Wasif Khalil which was  

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solemnized in Mayur Vihar, Delhi in a Masjid.  At the time  

of marriage, parents of both the parties to marriage were  

present.   She also explained that at the time when she  

had obtained divorce from Wasif by his saying Talaq three  

times in March, 1995, her younger brother was present.  

She  also  admitted  that  she  was  not  having  any  

documentary  evidence  for  the  same.   She  further  

explained that after divorce with her Muslim husband, she  

had  changed  her  name  from  Sahar  Wasif  to  Bhavana  

which was her original name.  Immediately after the said  

divorce,  according  to  her,  she  had  stated  using  her  

original  name  Bhavana  and  she  had  undergone  

Shudhikaran ceremonies for conversion to Hinduism just  

after her divorce from her previous muslim husband.   

9)  In support of the stand taken by Respondent-wife as  

RW1, one K.V. Krishnayya, aged about 60 years, resident  

of Ram Nagar, Market Lane, Hyderabad was examined as  

RW2  by  way  of  an  affidavit.   He  explained  that  the  

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respondent-Bhavana came to his house in the company of  

his daughter K. Aparna in the month of April 1997.  On  

one occasion,  he explained that  both Rajiv  Gakhar and  

Bhavana  came  to  his  house  and  on  making  enquiries  

Bhavana  disclosed  that  she  is  a  born  Hindu  but  she  

married to a Muslim and now she is a divorcee as she was  

divorced by her  Muslim husband by saying Talaq three  

times in March, 1995 and since then she again returned  

to  her  previous  religion  (Hindu)  after  obtaining  the  

Shudhikaran  ceremonies  by  calling  a  Pandit  and  by  

chanting Mantras.  She also disclosed that she is having  

two  children  from  her  Muslim  husband.   RW2  also  

enquired and verified the details about the appellant-Rajiv  

Gakhar.  In other words, according to RW2, the appellant  

was also aware of all the details about RW1 including her  

religion even before their marriage.   

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10)   One  Babu  Lal,  aged  about  65  years,  an  

Astrologer/Karamkandi,  resident  of  Sector  8,  Faridabad  

was examined as RW4.  He explained the details about the  

Shudhikaran  ceremonies  that  were  performed  to  the  

respondent.  According to him, it was done about 7 years  

ago.   He  explained  that  Shudhikaran  ceremonies  were  

performed by him on the eve of Puranmasi preceding Holi.  

After recollection he mentioned that it was around March,  

1997.  He asserted that after performance of ceremonies,  

she is deemed to have become a Hindu.  He also denied  

the suggestion that pursuant to marriage of Bhavana who  

was  earlier  a  Hindu  with  a  Muslim  and  having  two  

children, she could not have returned to a Hindu fold.  He  

also asserted that Shudhikaran of Bhavana and her two  

children  were  carried  out  simultaneously  on  the  same  

date and time and her parents were also present on this  

occasion.   

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11)  Another important witness examined on the side of  

the respondent is her brother Vibhu Ranjan as RW6.  He  

explained that Bhavna Gakhar is his real elder sister and  

they are Brahmins/Hindu by religion and the birth name  

of his sister was Bhavana Sharma.  He also explained that  

his  sister  first  married  with  a  Muslim  boy  and  

subsequently  after  Talaq,  thereby  her  marriage  with  

Muslim  came  to  an  end  permanently  forever.   He  also  

elaborated  and  explained  that  in  the  month  of  March,  

1997  on  the  eve  of  Holi  festival  the  Shudhikaran  

ceremonies were performed in their house through Pandit  

Babu Lal (RW4).  He further explained that Abhishek by  

gangajal  was  done  apart  from  chanting  of  Mantras  

necessary  for  Shudhikaran.   Thus,  according  to  him,  

Bhavana returned to her original religion, i.e, Hindu and  

became  eligible  to  enter  into  marriage  with  any  Hindu  

male.

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12) The  analysis  of  the  assertion  of  the  respondent  as  

RW1 and the evidence of RW2, RW4 and RW6 clearly show  

that  the  respondent-wife  established  that  before  the  

marriage  with  the  appellant  she  became  a  full-fledged  

Hindu  by  performing  Shudhikaran  ceremonies  in  the  

manner and being followed by Hindu custom and all these  

material facts were known to the appellant at the time of  

the  marriage.   In  view  of  these  factual  details,  the  

decisions  relied  on  by  the  learned  counsel  for  the  

appellant are not applicable to the case on hand.

13)  Mr. Parikh heavily relied on  Gullipilli Sowria Raj  

(supra).   The  question  in  that  decision  was  whether  a  

marriage entered into by a Hindu with a Christian is valid  

under  the  provisions  of  the  Hindu Marriage  Act,  1955.  

After  finding  that  the  appellant-husband  therein  was  a  

Roman  Catholic  Christian,  the  marriage  solemnized  in  

accordance  with  Hindu  customs  was  a  nullity  and  its  

registration under Section 8 of the Act could not and/or  

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did  not  validate  the  same.  In  view  of  the  said  factual  

scenario, as rightly observed by the High Court, the ratio  

in Gullipilli (supra) is not applicable to the case on hand.  

14)   Inasmuch  as  the  respondent-wife  established  her  

claim that on the date of marriage with the appellant she  

was a Hindu and the same is permissible under Section 5  

of the Act, we agree with the conclusion arrived at by the  

High Court and reject the argument of the counsel for the  

appellant.   

15)  In view of the above discussion and conclusion, we  

find no merit in the appeal.  Consequently, the same is  

dismissed.           

...…………………………………J.                   (P. SATHASIVAM)  

...…………………………………J.           (H.L. GOKHALE)  

NEW DELHI; MAY 11, 2011.    

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