IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 Mat.Appeal.No. 223 of 2009() ---------------------------- OPHMA.40/2008 of FAMILY COURT, KOTTAYAM .................... PETITIONER(S): PETITIONER ------------------------- SIYAM P. ASHRAF, AGED 24 YEARS, A/O.P.K. ASHRAF, PUTHENVETTIL HOUSE, YENDAYAR.P.O, THENPUZHA EAST, KOTTAYAM DISTRICT NOW RESIDING AT PUTHENVEETIL HOUSE, VELANILAM.P.O, MUNDAKKAYAM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.BINDU SREEKUMAR RESPONDENT(S): RESPONDENT ------------------------- RAJASREE PAWAR, AGED 20 YEARS, D/O. DELEEP BHAIRA PAWAR, RAJASHREE BHAVAN, P.P. GALAXY THEATRE, K.K. ROAD, MUNDAKKAYAM TOWN, MUNDAKKAYAM.P.O. ADV. SRI.K.GOPALAKRISHNA KURUP FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT & M.C.HARIRANI, JJ. * * * * * * * * * * * * * Mat.Appeal No.223 of 2009 ---------------------------------------- Dated this the 29th day of June 2009 J U D G M E N T BASANT,J On the allegation that the respondent is the legally married wife of the appellant herein, the appellant had approached the Family Court for a decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act. That application was resisted on the ground that the appellant is a Muslim and the respondent is a Hindu and that there can be no valid and legal marriage between them under the provisions of the Hindu Marriage Act. Before the court below, PWs 1 to 3 were examined and Exts.A1 to A13 were marked. On the side of the respondent, no oral evidence was adduced; but Exts.B1 and B2 were marked. 2. The court below, on an anxious consideration of all the relevant inputs, came to the conclusion that a valid and legal marriage under law has not been established and Mat.Appeal No.223/09 2 consequently, the appellant is not entitled for a decree for restitution of conjugal rights. Accordingly, the impugned order was passed. 3. When this appeal came up for admission, the appellant had appeared personally and argued for admission. Thereafter the service of a counsel has been made available to him by the Legal Services Authority and thereafter Adv.Smt.Bindu Sreekumar has been appearing for the appellant. The short question that arises for consideration is whether the alleged marriage by the appellant and the respondent is legally valid and true. Only Ext.A1 marriage agreement has been produced. Law does not give sanctity to such an agreement to live together and such an agreement cannot, in law, give rise to a legally acceptable matrimonial relationship. According to the appellant, the marriage was solemnised in accordance with Hindu religious rites. Admittedly, according to him, there has been no conversion of the appellant to Hinduism or the respondent to Islam. Though the appellant claims that the marriage has been registered in accordance with the provisions of the Special Marriage Act in Mat.Appeal No.223/09 3 Tamil Nadu, there is not a semblance of material placed before this court in support of his plea of registration of the marriage under the Special Marriage Act or any other law. 4. It follows that there is only Ext.A1 agreement of marriage and a later assertion of solemnisation of a marriage in accordance with Hindu religious rites. 5. The learned counsel for the appellant was requested to pointedly explain how the impugned finding that there is no legal matrimony between the appellant and the respondent can be faulted and assailed. It is trite law that a mere agreement to live together like Ext.A1 does not evidence solemnisation of marriage and the resultant relationship cannot be recognised as one of legal matrimony. For the sake of arguments, even if it is assumed that the parties had gone through rituals relating to a Hindu Marriage, it is by now trite that such marriage between a non-Hindu and Hindu cannot be legally recognised as one solemnised under the Hindu Marriage Act. The decision of the Division Bench of this Court in Vijayakumari v. Devabalan [2003(3) KLT 695] concludes the issue on that aspect. Later, the Supreme Court Mat.Appeal No.223/09 4 in Gullipilli Sowria Raj v. Bandaru Pavani [AIR 2009 Supreme Court 1085] has also clearly held that such marriage between a Hindu and a Muslim allegedly performed under the Hindu religious rites and rituals cannot, in law, be recognised as a marriage solemnized under the Hindu Marriage Act. The requisites of a valid marriage under Section 5 of the Hindu Marriage Act cannot, hence, be said to be satisfied by the execution of Ext.A1 or the alleged performance of religious rites of the Hindus by the parties. The conclusion appears to be inevitable, in these circumstances, that there is no merit in the challenge raised against the impugned order of dismissal of the petition filed under Section 9 of the Hindu Marriage Act. 6. This appeal is consequently dismissed. No cost. (R.BASANT, JUDGE) (M.C.HARIRANI, JUDGE) jsr Mat.Appeal No.223/09 5 Mat.Appeal No.223/09 6 Mat.Appeal No.223/09 7 R.BASANT & M.C.HARIRANI, JJ. .No. of 200 ORDER/JUDGMENT 18/06/2009