Full Judgment Text
REPORTABLE
2024 INSC 355
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
TRANSFER PETITION (C) NO(S). 2043/2023
DOLLY RANI PETITIONER(s)
VERSUS
MANISH KUMAR CHANCHAL RESPONDENT(s)
O R D E R
The present transfer petition is filed under Section 25 of
the Code of Civil Procedure, 1908 (for short, “CPC”) by the
petitioner-wife seeking the following reliefs:
a. “To transfer the divorce petition under Section
13(l)(ia) of the Hindu Marriage Act, 1955 bearing
Matrimonial Case No. 82/2023 titled "Manish Kumar
v/s Doly Singh" pending before the Court of
Principal Judge, Family Court, Muzaffarpur, Bihar
to the Court of Principal Judge, Family Court,
Ranchi Jharkhand; and
b. Pass such other and further orders and/ or
directions as 1s deemed just and proper by this
Hon'ble Court in the facts and circumstances of
the case.”
During the pendency of this petition the parties have
decided to resolve that dispute by filing a joint application
under Article 142 of the Constitution of India seeking certain
reliefs as referred to later.
Signature Not Verified
Digitally signed by
RADHA SHARMA
Date: 2024.04.30
16:59:27 IST
Reason:
Briefly stated, the facts of the case are that the petitioner
and the respondent are trained commercial pilots. The parties
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were engaged to be married on 07.03.2021. The petitioner and
respondent claimed to have ‘solemnized’ their marriage on
07.07.2021. They obtained a “marriage certificate” from Vadik
Jankalyan Samiti (Regd.). Based on this certificate, they
obtained a “Certificate of Registration of Marriage” under the
Uttar Pradesh Marriage Registration Rules, 2017. The respective
families of the parties fixed the date for performing the
marriage ceremony as per Hindu rites and customs on 25.10.2022.
Meanwhile, the petitioner and respondent lived separately but
nevertheless, differences ignited between them. According to
the petitioner, there was demand for dowry made by respondent’s
family.
On 17.11.2022, the petitioner filed an FIR under Sections
498A, 420, 506, 509, 34 of the Indian Penal Code, 1860 (for
short, “IPC”) and Sections 3,4 of the Dowry Prohibition Act,
1961 (for short, “DP Act”) against the respondent and his family
members alleging harassment.
Thereafter on 13.03.2023, the respondent approached the
Court of Principal Judge, Family Court, Muzaffarpur, Bihar by
filing a petition for divorce under Section 13(1)(ia) of the
Act in Matrimonial Case No.82/2023. Being aggrieved by this fact
as the petitioner-wife is currently residing in Ranchi,
Jharkhand with her parents, she filed the present transfer
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petition seeking to transfer the divorce petition under Section
13(l)(ia) of the Hindu Marriage Act, 1955 (hereinafter referred
to as “the Act”) bearing Matrimonial Case No. 82/2023 titled
"Manish Kumar v/s Doly Singh" pending before the Court of
Principal Judge, Family Court, Muzaffarpur, Bihar to the Court
of Principal Judge, Family Court, Ranchi Jharkhand.
Learned counsel for the petitioner submitted that the
respondent has filed a Matrimonial Case No.82/2023 under Section
13(1)(ia) of the Act seeking a decree of divorce as against the
petitioner herein whereas there being no marriage between the
parties in the eyes of the law, the respondent could not have
sought for by the said decree.
Learned counsel for the respondent also submitted that
indeed there was no marriage in accordance with Section 7 of
the Act inasmuch as the requisites of a valid Hindu marriage
insofar as ceremonies are concerned, were not complied with but
having no other recourse, the respondent was constrained to file
M.C. No.82/2023 as the “marriage” between the parties was
registered before the Registrar of Marriages.
Learned counsel for the respective parties further
submitted that during the pendency of this transfer petition,
the parties have discussed the matter and they have agreed to
file a joint application under Article 142 of the Constitution
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of India seeking the following prayers:
“(i) Grant a decree of declaration that the marriage
dated 07.07.2021 between the parties is not valid in
the eye of law by exercising its jurisdiction under
Article 142 of the Constitution of India.
(ii) Consequently, grant a decree of declaration that
the certificate dated 07.07.2021 issued by under the
Uttar Pradesh Registration Rule, 2017, and certificate
dated 07.07.2021 issued by the Vadik Jankalyan Samiti
(Regd.) are null and void.
(iii) Take on record the terms and conditions of
settlement as stated in paragraph 5 of this
application.
(iv) Pass any other order/direction that this Court
may deem fit and necessary in the facts and
circumstances of the case.”
They submitted that since there was no valid marriage in
the eye of the law, the parties seek a declaration to the effect
that the so-called marriage dated 07.07.2021 was not valid in
the law and therefore, a declaration may be granted to that
effect. Consequently, the Certificate dated 07.07.2021 issued
under the Uttar Pradesh Registration Rules, 2017 and another
certificate dated 07.07.2021 issued by the Vadik Jankalyan
Samiti (Regd.) are also null and void and would pale into
insignificance in view of there being no valid Hindu marriage
and, therefore, the same may also be declared null and void.
They submitted that the joint application filed by the
parties herein may be taken on record and the prayers sought by
them may be granted.
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The parties are present before the Court. They have been
identified by their respective counsel. When queried by this
Court, they indeed stated that there was no “marriage”
solemnized by them inasmuch as no customs, rites and rituals
performed. However, due to certain exigencies and pressures,
they were constrained to obtain the certificate dated 07.07.2021
from Vadik Jankalyan Samiti (Regd.) and on the basis of that
certificate they sought registration under the Uttar Pradesh
Registration Rule, 2017 and a “Certificate of Marriage” was
issued by the Registrar of Marriages on 07.07.2021. That when
there was no Hindu marriage which took place between them, the
issuance of the said certificate is of no consequence. They
further stated in unison that this court may allow the prayers
sought for by them and declare that no marriage took place
between the parties and thereby permit them to lead their
independent lives.
They further stated that the joint application has been
filed under Article 142 of the Constitution of India on their
own free volition without there being any coercion or undue
influence from any side and that they would abide by the terms
and conditions of the joint application and hence, this Court
may grant the reliefs to them.
In the above backdrop, we have taken on record the joint
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application filed by the parties under Article 142 of the
Constitution of India and we have perused the same. In the said
joint application, the petitioner has sought for quashing of
Maintenance Case No.326/2023 filed by her and the Criminal Case
instituted vide FIR No.463/2022 before Police Station-Sukhdev
Nagar, Ranchi and the proceedings thereunder against the
respondent and his parents herein which may also be quashed.
We have perused the other terms and conditions mentioned
in the joint application. We find the same to be lawful and we
do not find any legal impediment in accepting the terms and
conditions of the joint application. But before granting the
reliefs sought for by the parties we wish to make certain
observations.
Section 7 of the Act reads as under:
“7. Ceremonies for a Hindu marriage.—(1) A Hindu
marriage may be solemnized in accordance with the
customary rites and ceremonies of either party
thereto. (2) Where such rites and ceremonies include
the Saptapadi (that is, the taking of seven steps by
the bridegroom and the bride jointly before the sacred
fire), the marriage becomes complete and binding when
the seventh step is taken.”
Section 7 of the Act speaks about ceremonies of a Hindu
marriage. Sub-section (1) uses the word “solemnised”. The word
“solemnised” means to perform the marriage with ceremonies in
proper form. Unless and until the marriage is performed with
appropriate ceremonies and in due form, it cannot be said to be
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“solemnised”. Further, sub-section (2) of Section 7 states that
where such rites and ceremonies include the saptapadi , i.e.,
the taking of seven steps by the bridegroom and the bride jointly
before the sacred fire, the marriage becomes complete and
binding when the seventh step is taken. Therefore, requisite
ceremonies for the solemnisation of the Hindu marriage must be
in accordance with the applicable customs or usage and where
saptapadi has been adopted, the marriage becomes complete and
binding when the seventh step is taken. Where a Hindu marriage
is not performed in accordance with the applicable rites or
ceremonies such as saptapadi when included, the marriage will
not be construed as a Hindu marriage. In other words, for a
valid marriage under the Act, the requisite ceremonies have to
be performed and there must be proof of performance of the said
ceremony when an issue/controversy arise. Unless the parties
have undergone such ceremony, there would be no Hindu marriage
according to Section 7 of the Act and a mere issuance of a
certificate by an entity in the absence of the requisite
ceremonies having been performed, would neither confirm any
marital status to the parties nor establish a marriage under
Hindu law.
A perusal of the marriage certificate produced in the
instant case along with the application filed under Article 142
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of the Constitution of India states that the ‘marriage’ between
the parties has been solemnised according to Hindu Vedic rites
and customs. The certificate issued by Vadik Jankalyan Samiti
(Regd.) in the absence of any indication as to the rites and
customs that were performed and as to whether the requirements
under Section 7 of the Act was complied with would not be a
certificate evidencing a Hindu marriage in accordance with
Section 7 of the Act. In the absence of any ceremony being
performed such a certificate could not have been issued. It is
on the basis of the said certificate that the Marriage
Registration Officer has issued under the Uttar Pradesh Marriage
Registration Rule, 2017 a certificate stating that the parties
had presented before the office on 07.07.2021 and had declared
that their marriage was solemnised on the said date at Vadik
Jankalyan Samiti (Regd.), Ghaziabad and on the basis of the said
certificate issued by the said entity, the Marriage Registration
Officer registered the marriage which is under Section 8 of the
Act.
Section 8 of the Act reads as under:
“8. Registration of Hindu marriages.—(1) For the
purpose of facilitating the proof of Hindu marriages,
the State Government may make rules providing that the
parties to any such marriage may have the particulars
relating to their marriage entered in such manner and
subject to such conditions as may be prescribed in a
Hindu Marriage Register kept for the purpose.
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(2) Notwithstanding anything contained in sub-section
(1), the State Government may, if it is of opinion
that it is necessary or expedient so to do, provide
that the entering of the particulars referred to in
sub-section (1) shall be compulsory in the State or
in any part thereof, whether in all cases or in such
cases as may be specified, and where any such direction
has been issued, any person contravening any rule made
in this behalf shall be punishable with fine which may
extend to twenty-five rupees.
(3) All rules made under this section shall be laid
before the State Legislature, as soon as may be, after
they are made.
(4) The Hindu Marriage Register shall at all
reasonable times be open for inspection, and shall be
admissible as evidence of the statements therein
contained and certified extracts therefrom shall, on
application, be given by the Registrar on payment to
him of the prescribed fee.
(5) Notwithstanding anything contained in this
section, the validity of any Hindu marriage shall in
no way be affected by the omission to make the entry.”
Under Section 8 of the Act, it is open for two Hindus
married under the provisions of the Act to have their marriage
registered provided they fulfil the conditions laid down therein
regarding performance of requisite ceremonies. It is only when
the marriage is solemnised in accordance with Section 7, there
can be a marriage registered under Section 8. The State
Governments have the power to make rules relating to the
registration of marriages between two Hindus solemnised by way
of requisite ceremonies. The advantage of registration is that
it facilitates proof of factum of marriage in a disputed case.
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But if there has been no marriage in accordance with Section 7,
the registration would not confer legitimacy to the marriage.
We find that the registration of Hindu marriages under the said
provision is only to facilitate the proof of a Hindu marriage
but for that, there has to be a Hindu marriage in accordance
with Section 7 of the Act inasmuch as there must be a marriage
ceremony which has taken place between the parties in accordance
with the said provision. Although the parties may have complied
with the requisite conditions for a valid Hindu marriage as per
Section 5 of the Act in the absence of there being a “Hindu
marriage” in accordance with Section 7 of the Act, i.e.,
solemnization of such a marriage, there would be no Hindu
marriage in the eye of law. In the absence of there being a
valid Hindu marriage, the Marriage Registration Officer cannot
register such a marriage under the provisions of Section 8 of
the Act. Therefore, if a certificate is issued stating that the
couple had undergone marriage and if the marriage ceremony had
not been performed in accordance with Section 7 of the Act, then
the registration of such marriage under Section 8 would not
confer any legitimacy to such a marriage. The registration of a
marriage under Section 8 of the Act is only to confirm that the
parties have undergone a valid marriage ceremony in accordance
with Section 7 of the Act. In other words, a certificate of
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marriage is a proof of validity of Hindu marriage only when such
a marriage has taken place and not in a case where there is no
marriage ceremony performed at all.
We further observe that a Hindu marriage is a sacrament and
has a sacred character. In the context of saptapadi in a Hindu
marriage, according to Rig Veda , after completing the seventh
step (saptapadi) the bridegroom says to his bride, “ With seven
steps we have become friends (sakha). May I attain to friendship
with thee; may I not be separated from thy friendship”. A wife
is considered to be half of oneself ( ardhangini ) but to be
accepted with an identity of her own and to be a co-equal partner
in the marriage. There is nothing like a “better-half” in a
marriage but the spouses are equal halves in a marriage. In
Hindu Law, as already noted, marriage is a sacrament or a
samskara . It is the foundation for a new family.
With the passage of centuries and the enactment of the Act,
monogamy is the only legally approved form of relationship
between a husband and a wife. The Act has categorically
discarded polyandry and polygamy and all other such types of
relationships. The intent of the Parliament is also that there
should be only one form of marriage having varied rites and
customs and rituals. Thus, when the Act came into force on
18.05.1955, it has amended and codified the law relating to
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marriage among Hindus. The Act encompasses not only Hindus as
such but Lingayats, Brahmos, Aryasamajists, Buddhists, Jains
and Sikhs also who can enter into a valid Hindu marriage coming
within the expansive connotation of the word Hindu.
Section 4 of the Act is important and it gives an overriding
effect to the Act and it repeals all existing laws whether in
the shape of enactments, custom or usage inconsistent with the
Act. Of course, the said Section also saves anything otherwise
expressly provided under the Act. For immediate reference,
Section 4 of the Act is extracted as under:
“4. Overriding effect of the Act.- Save as otherwise
expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or
any custom or usage as part of that law in force
immediately before the commencement of this Act shall
cease to have effect with respect to any matte for
which provision is made in this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to have effect
insofar as it is inconsistent with any of the
provisions contained in this Act.”
In effect a union of two persons under the provisions of
the Act, by way of a Hindu marriage gives them the status and
character of being a husband and wife in society. The said
status is of significance inasmuch as a man and a woman cannot
be treated as a husband and a wife unless a marriage is performed
or celebrated with proper and due ceremonies and in the
prescribed form. In the absence of any solemnisation of a
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marriage as per the provisions of the Act, a man and a woman
cannot acquire the status of being a husband and a wife to each
other. In the above context, we deprecate the practice of young
men and women seeking to acquire the status of being a husband
and a wife to each other and therefore purportedly being
married, in the absence of a valid marriage ceremony under the
provisions of the Act such as in the instant case where the
marriage between the parties was to take place later.
No doubt, under the Special Marriage Act, 1954, a man and
a woman can acquire the status of being a husband and a wife as
per the provisions of the said Act. The Special Marriage Act,
1954 is not restricted to Hindus. Any man and woman irrespective
of their race, caste or creed can acquire the status of being a
husband and a wife under the provisions of the Special Marriage
Act, 1954 but under the provisions of the Act (Hindu Marriage
Act, 1955), there should not only be compliance of the
conditions as prescribed under Section 5 of the said Act but
also the couple must solemnise a marriage in accordance with
Section 7 of the Act. In the absence of there being any such
marriage in accordance with Section 7 of the Act, a certificate
issued in that regard by any entity is of no legal consequence.
Further, any registration of a marriage which has not at all
taken place under Section 8 of the Act and as per the rules made
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by the State Government would not be evidence of a Hindu marriage
and also does not confer the status of a husband and a wife to
a couple.
In recent years, we have come across several instances
where for “practical purposes”, a man and a woman with the
intention of solemnisation of their marriage at a future date
seek to register their marriage under Section 8 of the Act on
the basis of a document which may have been issued as proof of
‘solemnisation of their marriage’ such as in the instant case.
As we have already noted, any such registration of a marriage
before the Registrar of Marriages and a certificate being issued
thereafter would not confirm that the parties have ‘solemnised’
a Hindu marriage. We note that parents of young couples agree
for registration of a marriage in order to apply for Visa for
emigration to foreign countries where either of the parties may
be working “in order to save time” and pending formalising a
marriage ceremony. Such practices have to be deprecated. What
would be the consequence, if no such marriage is solemnised at
all at a future date? What would be the status of the parties
then? Are they husband and wife in law and do they acquire such
status in society?
As already noted, a Hindu marriage is a samskara and a
sacrament which has to be accorded its status as an institution
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of great value in Indian society. Children born out of a valid
Hindu marriage are legitimate and therefore they have full
rights in law. This is not an occasion for us to discuss about
the vulnerability of illegitimate children born outside wedlock
who yearn for status equal to legitimate children in society.
Therefore, we urge young men and women to think deeply about
the institution of marriage even before they enter upon it and
as to how sacred the said institution is, in Indian society. A
marriage is not an event for ‘song and dance’ and ‘wining and
dining’ or an occasion to demand and exchange dowry and gifts
by undue pressure leading to possible initiation of criminal
proceedings thereafter. A marriage is not a commercial
transaction. It is a solemn foundational event celebrated so as
to establish a relationship between a man and a woman who acquire
the status of a husband and wife for an evolving family in
future which is a basic unit of Indian society. A Hindu marriage
facilitates procreation, consolidates the unit of family and
solidifies the spirit of fraternity within various communities.
After all, a marriage is sacred for it provides a lifelong,
dignity-affirming, equal, consensual and healthy union of two
individuals. It is considered to be an event that confers
salvation upon the individual especially when the rites and
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1
ceremonies are conducted . The customary ceremonies, with all
its attendant geographical and cultural variations is said to
purify and transform the spiritual being of an individual.
The Hindu Marriage Act, 1955 solemnly acknowledges both the
material and spiritual aspects of this event in the married
couple’s lives. Besides providing a mechanism for registration
of marriages in order to confer the status of a married couple
and acknowledge rights in personam and rights in rem , a special
place is given to rites and ceremonies in the Act. It follows
that the critical conditions for the solemnizing of a Hindu
marriage should be assiduously, strictly and religiously
followed. This is for the reason that the genesis of a sacred
process cannot be a trivial affair. The sincere conduct of and
participation in the customary rites and ceremonies under
Section 7 of the Hindu Marriage Act, 1955 ought to be ensured
by all married couples and priests who preside over the
ceremony.
The promises made to each by the parties to a Hindu marriage
and the oath taken by them to remain friends forever lay the
foundation for a life-long commitment between the spouses which
should be realized by them. If such commitment to each other is
1
HARMAN, WILLIAM. “THE HINDU MARRIAGE AS SOTERIOLOGICAL EVENT.”
International Journal of Sociology of the Family, vol. 17, no.2, 1987,
pp.169-82 .
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adhered to by the couple, then there would be far fewer cases
of breakdown of marriages leading to divorce or separation.
But in the instant case, the above parameters have not been
followed by the parties herein. In the circumstances, we declare
that the ‘marriage’ dated 07.07.2021 between the parties is not
a ‘Hindu marriage’ having regard to the provisions of Section 7
of the Act. Consequently, the certificate issued by the Vadik
Jankalyan Samiti (Regd.) dated 07.07.2021 is declared null and
void. In view of the above the Certificate issued under the
Uttar Pradesh Registration Rules, 2017 dated 07.07.2021 is also
declared null and void.
In view of the aforesaid declaration, it is further
declared that the petitioner and the respondent were not married
in accordance with the provisions of the Act and therefore, they
have never acquired the status of husband and wife.
Consequently, the three cases filed by the parties against
each other stand quashed, namely,-
“(a) The divorce petition Matrimonial Case No.82/2023
filed by the respondent/Manish Chanchal, which is
pending before the Family Court at Muzaffarpur, Bihar;
(b) The Maintenance Case No.326/2023 filed by
petitioner/Doly Rani at Ranchi, Jharkhand;
(c) The criminal case FIR No.463/2022 initiated at PS
Sukhdev Nagar, Ranchi by the petitioner/Doly Rani and
proceedings thereunder, against the respondent/Manish
Chanchal and his parents.”
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In view of the above, the application filed under
Article 142 of the Constitution is allowed.
Consequently, the Transfer Petition stands disposed.
Pending application(s), if any, shall stand disposed of.
. . . . . . . . . ,J
[ B.V. NAGARATHNA ]
. . . . . . . . . . . . .,J
[ AUGUSTINE GEORGE MASIH ]
NEW DELHI;
APRIL 19, 2024.
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