IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 121 OF 2004 WITH CIVIL APPLICATION NO.187 OF 2004 AND CIVIL APPLICATION NO. 182 OF 2005 Smt. Madhavi Ramesh Dudani 2-B, Indu Park Co-op. Housing Society Four Bungalows Road, Andheri (W), Mumbai - 400 053. .. Appellant V/s Ramesh K. Dudani C-104, Industrial Area, Phase VII, Mohali, Near Chandigarh. .. Respondent Mr.Amit Bhowmik for the Appellant. Mr.H.J. Thakkar, Senior Advocate with Mr.N.N. Gunjalkar and Ms.V.N. Bangera for the Respondent. CORAM : H.L. GOKHALE & MRS. R.S. DALVI, JJ. DATE OF RESERVING THE JUDGMENT : 27TH OCTOBER 2005 DATE OF PRONOUNCING THE JUDGMENT : 25TH NOVEMBER 2005 JUDGMENT JUDGMENT JUDGMENT : (per H.L. Gokhale, J.) 1. This Appeal by a wife seeks to challenge the common judgment and order dated 29th June 2004 passed by a Judge of the Family Court at Mumbai. The Appellant wife had filed Petition No.A-1822 of 1992 on 23rd - 2 - November 1992 in the Family Court seeking judicial separation under section 10 of the Hindu Marriage Act, 1955 on the ground of cruelty and ill-treatment. The Respondent husband had filed Matrimonial Suit No.B-96 of 1992 on 23rd December 1992 seeking a declaration that the purported marriage between the Appellant and the Respondent performed on 19th January 1983 be declared null and void since the Appellant was not a Hindu prior to her marriage and that she had not been converted to Hinduism any time prior to the marriage. The learned Judge of the Family Court had accepted this submission of the Respondent that the Appellant had not been converted to Hinduism prior to the marriage and, therefore, the marriage between a Hindu and a non-Hindu could not be said to be a valid marriage under section 5 of the Hindu Marriage Act, 1955. The learned Judge, therefore, held that he had no jurisdiction to try and entertain the petition filed by the Appellant wife for judicial separation or the one filed by the Respondent husband seeking a declaration of nullity of the marriage, since neither of the petitions could be said to be maintainable under the provisions of the Hindu Marriage Act. He, therefore, dismissed both the petitions by the said order which is under challenge. 2. The Respondent herein is an industrialist and a - 3 - businessman of some standing. He is stated to be an engineer and used to run a company by name Technical Products Corporation which manufactured small engineering equipments such as screws, nuts and bolts. He had a factory in MIDC, Andheri, Mumbai. He had divorced his earlier wife one Sugandha Rani some time in December 1982. He had two children; one son and one daughter from his earlier marriage. The Appellant herein was working initially as a clerk and later on in an administrative position in Respondent’s company for about 5 years by the time of this divorce. She was a Catholic Christian by birth and her name was Magdhelene Pereira. Her father was a make-up artist in the film industry. The Appellant and the Respondent got married at the Markandeshwar Temple at Worli, Mumbai on 19th January 1983 according to Hindu Vedic Rites. The fact that such a marriage did take place and also that it was performed according to the Hindu Vedic Rites is not disputed by the Respondent husband. Thereafter, the parties on the same evening went to a church at Sakinaka, Mumbai, where they have undergone a church marriage. 3. Two daughters were born from this marriage; the elder one by name Ritu born on 10th December 1983 and the younger one by name Richa born on 3rd August 1986. - 4 - The parties have lived together at the bungalow of the Respondent at Indu Park Co-operative Housing Society at Four Bungalows area in Andheri (West). It appears that over the years differences developed between them and the Appellant wife has been staying away since about 7th March 1991. 4. The above referred petition for judicial separation was filed on 23rd November 1992. Prayer (a) thereof sought judicial separation, prayer (b) continuation of the custody of the minor daughters with her and prayer (c) her stridhan articles. Prayer (f) sought a partition of the matrimonial home at Indu Park so as to enable her to stay in one part thereof. Prayer (d) was an interim prayer not to sell, alienate or encumber that house and prayer (e) sought an injunction that she should not be restrained from entering into the same. Prayer (g) sought a permanent maintenance of Rs.15,000/- per month for herself and Rs.7,500/- per month for the minor daughters. Interim maintenance was sought at Rs.10,000/- to herself and Rs.5,000/- per month for the minor daughters. The Appellant took out an interim application therein making two-fold prayers. The first part of prayer was concerning the matrimonial home. Prayers (a) and (b) were to restrain the Respondent from selling, alienating or encumbering or - 5 - creating any third party rights in the above referred matrimonial home. The second part was regarding maintenance. Prayer (e) was to grant an amount of Rs.10,000/- to herself and Rs.5,000/- to each of the daughters during the pendency and disposal of the petition. 5. The Respondent filed a written statement containing a counter-claim and denied the allegations of cruelty and ill-treatment made in the petition for judicial separation. He contended that since the marriage was not between two Hindus, the Appellant could not claim any relief in the proceeding under the Hindu Marriage Act and that the court had no jurisdiction to entertain the same. Alternatively, however, he prayed that in case the court held that it had the jurisdiction, the Respondent be granted a decree of divorce for the reason that in fact he had been treated with cruelty. As far as this counter-claim is concerned, the Appellant filed her written statement thereto on 24th September 1993 and submitted that she had become a Hindu and that the court did have jurisdiction. 6. As pointed out above, the Respondent had filed the other matrimonial suit for a declaration being Suit - 6 - No.B-96 of 1992 praying that the marriage between the two be declared null and void. The Appellant filed her written statement thereto contending that she was converted to Hinduism prior to the marriage and therefore there was no question of granting any decree as prayed by him. Both the proceedings were tried together and issues were framed by the learned Judge. The relevant issues are Issue Nos.8 and 9 in Petition No.A-1822 of 1992 and Issue No.1 in Suit No.B-96 of 1992. These issues read as follows:- "Issue No.8: Does the Respondent prove that the marriage between him and the Petitioner is null and void ab-initio as on date of marriage, the Petitioner belonged to Christian Religion and was not property converted to Hinduism? Issue No.9: Whether the petition is maintainable, if the Petitioner is a Christian as the same is filed under the provisions of Hindu Marriage Act? Issue No.1: Does the Petitioner prove that the marriage - 7 - solemnised on 19.1.1983 between himself and the Respondent is null and void as the Respondent was belonging to Christian Religion on the date of marriage and no valid marriage was performed between the parties under the Hindu Marriage Act? 7. Thereafter the parties led evidence. The Appellant led her own evidence and that of one Mr.Mehta who had attended the marriage. The Respondent examined himself. The matter was argued thereafter. The learned Judge relied upon a few judgments including those of this High Court and that of Kerala High Court and came to the conclusion that since one of the parties was not Hindu, he did not have any jurisdiction to try and entertain the proceedings. It is however material to note that the evidence was recorded on all the issues arising in the matter, i.e. with respect to cruelty by either of the parties, the reasons for their separation, the allegations against each other, and their financial position to decide the question of maintenance. However, as stated above, the learned Judge held that he did not have the jurisdiction and, therefore, dismissed both the proceedings by the impugned order on that finding. He did not give any finding on the other issues. In para 28 he held that therefore the issues on cruelty, judicial separation, - 8 - maintenance and permanent alimony did not survive. It is this order which is under challenge. 8. Before we consider the arguments of the counsel for both the parties, we may refer to the findings given by the learned Judge of the Family Court. In para 21 of the impugned judgment, the learned Judge referred to the fact that in the original petition filed by wife, there was no reference to the Shudhikaran ceremony, but it was through an amendment made in May 1995 that this plea was brought on record. He has also referred to the fact that the Appellant has deposed that she performed pooja and havan on various occasions after the marriage along with the Respondent. She has not stated so in the petition as such. The learned Judge has also noted the fact that after the marriage according to the Hindu Vedic Rites, the parties went to a church for a Christian marriage. In para 22 of the judgment, he has noted that no particulars of the Shudhikaran ceremony like the date and place of performance and the witnesses present were given. He has noted that her witness Mr.Dhirubhai Mehta has stated that he witnessed the Shudhikaran ceremony though in the cross-examination, he has stated that he did not know what is meant thereby. The learned Judge has, therefore, held at the end of para - 9 - 22 that she has miserably failed that she has undergone Shudhikaran ceremony. 9. With respect to her participation in various religious ceremonies as a Hindu, the learned Judge has noted that the Appellant was performing pooja, havan and various tenets of Hinduism. He has also noted that she performed pooja at the residence, factory premises and when the couple went on tour to religious places like Badrinath. She has stated that Dhirubhai Mehta accompanied them and Mr.Mehta in his statement stated that she performed pooja and havan at different places. It was submitted before the learned Judge that there was difference between performance of and participation in religious ceremonies and the learned Judge has accepted the distinction between the two in para 23 of the judgment. He has noted that performance is actually doing a particular act whereas participation does not necessarily imply doing any specific act like performing pooja or havan. He accepted that participation does not mean performance. He further noted that he had asked the Appellant to chant at least one mantra or shloka which she could not. The learned Judge, therefore, held at the end of para 23 that there was no convincing evidence to prove that she had performed pooja or havan at any time after the - 10 - marriage. 10. In para 24 of the judgment, the learned Judge has noted that the Appellant’s name was changed to Madhavi after marriage and that names of her daughters were also Hindu names. However, he has declined to accept that she had been converted to Hinduism merely on the basis of such names. For that purpose he has noted that the names of her sister’s children are also Hindu names such as Rakesh, Rekha and Renuka. Her visiting the religious places like Shirdi and other temples is found to be not sufficient to practice Hinduism. In para 25 of the order, the learned Judge referred to various judgments. He has, however, quoted the one of Kerala High Court in the case of Devabalan Devabalan Devabalan v. Vijaykumari - 2004 (1) Civil Court Cases 424 v. Vijaykumari - 2004 (1) Civil Court Cases 424 v. Vijaykumari - 2004 (1) Civil Court Cases 424. The Division Bench of the Kerala High Court had taken a view that where a Christian lady marries a Hindu person, children born out of that marriage are not Hindus as the children’s religion is to be fixed by the religion to which the mother belongs. The main dispute in that matter was a property dispute concerning the succession of those children to the father’s property. It was in this context that the Division Bench held that the marriage was not a valid marriage under the Hindu Law and the religion of the children is to be - 11 - fixed by the religion of the mother. The learned Judge is also impressed by a judgment of a Division Bench of this Court in Neeta Desai v. Bino Samuel George - 1997 Neeta Desai v. Bino Samuel George - 1997 Neeta Desai v. Bino Samuel George - 1997 (4) ALL MR 20 (4) ALL MR 20 (4) ALL MR 20. The Family Court had dismissed the wife’s petition seeking decree of nullity when she had married a Christian person. The wife had come in appeal and the Division Bench held that the Family Courts Act merely created a forum. The rights between the parties are however regulated by their personal law. Since the husband was a Christian, the Hindu Marriage Act will not apply to such a marriage in view of section 2 thereof. It is a short order. There is not much of discussion with respect to the ceremonies at marriage or as to how the parties had lived after their marriage. It is also material to note that in that matter, a Hindu lady was marrying a Christian male and was going to stay in his family and not the other way round as in the present case. It is on this footing that the learned Judges had ultimately held that he did not have the jurisdiction. 11. Mr.Bhowmik, learned counsel for the Appellant, submitted that the learned Judge has ignored the evidence on record. He submitted that the marriage was performed by a priest according to the Hindu Vedic Rites. It has been amply brought on record that - 12 - sapta-padi was performed which is the legal requirement of a Hindu marriage and which is clearly placed on record. The priest has married the Appellant with her name as Madhavi to the Respondent. Mr.Dhirubhai Mehta has clearly deposed that Shudhikaran ceremony was performed though he stated that he did not know any particulars thereof, which an ordinary person may not know. He has also pointed out that the daughters’ names are also Hindu names. They attended an English Medium School run by a Church, but they attended the classes of Moral Science meant for non-Catholic students. Appellant was going all over the religious places along with her husband and performing various pooja and havan at different places was also indicative. He pointed out that she had lived with the Respondent as a Hindu wife right from 1983 to 1991 until they started living separately and even thereafter she brought up the daughters as Hindu girls. At no point of time of their living together, the Respondent husband raised any such question of her alleged non-conversion and only after the Appellant filed her petition for maintenance the plea is being raised which is totally a dishonest plea and should not be countenanced. 12. Mr.Thakkar, learned senior counsel for the Respondent, on the other hand, submitted that the - 13 - submissions permissible in law to a party cannot be denied to it. In his submission, the Shudhikaran ceremony had to be performed specifically prior to the marriage. The plea of Shudhikaran having been undergone was raised by the Appellant only after an amendment and the only averment in the original petition was that the marriage was performed according to the Hindu Vedic Rites. In his submission, the evidence given in the court was at variance with what was pleaded and, therefore, the evidence of the Petitioner and that of Mr.Mehta in this behalf should be taken only with a pinch of salt. He relied upon the following judgments amongst others on Order 6 Rule 2 of the Civil Procedure Code for that purpose - (1) Trojan & Co. v. Nagappa - AIR 1953 SC 235 (2) AIR 1975 Calcutta 118 (para 19) (3) Rajgopal v. Kishan Gopal - AIR 2003 SC 4319 (4) Bondar Singh v. Nihal Singh - (2003) 4 SCC 161 (5) Kashi Nath v. Jaganath - (2003) 8 SCC 740 Mr.Thakkar submitted that explanation (c) to section 2(1) of the Hindu Marriage Act covers persons who are converts to Hinduism meaning thereby conversion has to be established. Under section 5 of the Act, the marriage had to be between two Hindus. Since the - 14 - conversion had not been established, in his view, the marriage could not be treated as the one over which the court would have jurisdiction. In his submission, the learned Judge was therefore right in passing the impugned order. 13. We have considered the submissions of both the counsel. It is to be noted that the Petitioner had been married by a Hindu priest and he had married her as Madhavi. Mr.Dhirubhai Mehta has given evidence with respect to Shudhikaran ceremony and the marriage. The relatives of the Appellant and the Respondent were both present at that time. The relatives of the Respondent and the priest surely knew that he could not perform a marriage of a non-Hindu to a Hindu. Mr.Mehta may not have known the exact ceremonies of Shudhikaran which an ordinary person may not know. His statement in that behalf, however, appears to be a correct statement in the natural course of events. However, we cannot attribute such an ignorance to a priest. The parents and relatives of the Appellant were present at the time of marriage. Surely, the priest would know that the Appellant is a Christian. It therefore goes without saying that he must not have performed the marriage without conversion. Section 114 of the Evidence Act expects the court to presume existence of certain facts - 15 - which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (f) of this section expects the court to presume that the common course of business has been followed in particular case and illustration (e) requires the court to presume that judicial and official acts have been regularly performed. It is, therefore, not possible to accept the submission of Mr.Thakkar that necessary condition precedent of Shudhikaran had not been performed. 14. The other evidence of the Appellant is clear in this behalf inasmuch as her daughters are given Hindu names and non-catholic instructions though they were sent to a school run by a church. They were not sent to the classes meant for the Catholic students, but were sent for studies in Moral Science. She has gone all over India along with her husband and participated in pooja, havan and various religious ceremonies. It is immaterial that she could not recite a mantra or shloka when in witness box. The fact of having lived with her husband for more than 8 years in a Hindu family clearly goes to support that she had been accepted in a Hindu family as a Hindu. The approach of - 16 - the learned Judge in this behalf is not something which can be accepted. 15. The two judgments relied upon by the learned Judge of the Family Court cannot help the Respondent. As pointed out above, the Kerala case was arising in a property matter and the one of a Division Bench of this Court was a case where the lady was married into a Christian family where the situation is exactly the converse. The facts and the propositions emerging in the two cases are clearly distinct from our case. The judgment of the Apex Court, on the other hand, in the case of Perumal Nadar v. Ponnuswami - AIR 1971 SC 2352 Perumal Nadar v. Ponnuswami - AIR 1971 SC 2352 Perumal Nadar v. Ponnuswami - AIR 1971 SC 2352 is quite clear in this behalf. Annapazham, a Christian girl, married Perumal Nadar according to Hindu Rites. Thereafter she lived with him as a Hindu and had two children from him. The elder son died after his birth. The younger one by name Ponnuswami acting through his mother filed a suit for a separate possession of half share in the properties of the joint family held by father Perumal. Perumal contended that the marriage with the Christian lady was not a valid marriage. The court noted that the marriage ceremony was performed according to Hindu Rites and thereafter as per the custom sacred thali was tied by Perumal. The wife followed the Hindu custom thereafter. It was - 17 - specifically contended on behalf of the Appellant (Perumal) by his counsel as recorded in para 6 of the judgment that in the absence of any evidence to show that Annapazham was converted to Hinduism before she married Perumal, the marriage could not be considered to be a valid one. In para 9 of the judgment, the Apex Court held that the marriage had been performed in accordance with the customary ceremonies, Annapazham was accepted in the local Hindu Nadar community as belonging to Hindu religion and her husband also treated her as a Hindu. Thereafter the court held as follows:- "Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony was performed." Earlier, in the same judgment in para 6, the court - 18 - observed as follows:- "A person may be a Hindu by birth or by conversion. 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. But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion." 16. In our view, in the facts of the present case, there is no reason to take any other view. It is immaterial that the Appellant had not pleaded having undergone the Shudhikaran ceremony in the original petition and that this plea was included by an amendment later on. There is no quarrel with the propositions canvassed on the basis of Order 6 Rule 2 of C.P.C. and the judgments relied in that behalf. However, in the facts and circumstances of the case, the evidence cannot be discarded. For the reasons, which we have given earlier, her deposition and that of - 19 - Mr.Mehta quite stand to reason on the touch-stone of section 114 of the Evidence Act. Independent of their depositions, we cannot ignore that the priest would not have married a Christian lady to a Hindu person without performing the condition precedent. That apart, as held by the Apex Court, the expiatory or purification ceremony is as such not necessary. What is required is a bona fide intention to be converted into Hindu faith accompanied by consistent conduct thereafter. In the present case, both the things are clearly available. In the circumstances, we have no hesitation in upturning the finding of the Trial Court that this was not a marriage between two Hindus and that, therefore, it had no jurisdiction. 17. Mr.Thakkar referred to section