CHITRALEKHA SHIBU KUNJU Vs. SHIBU KUNJU

JUDGEMENT

(1.) PETITION for restitution of Conjugal rights filed by wife, was dismissed by the Family Court at Bandra by judgment dated 6th March, 1995 in Family Court petition No. A-995/90 and the wife filed this appeal, challenging the judgment. This petition is obviously filed under section 9 of the Hindu Marriage Act. The lower Court mainly based its judgment on the facts that marriage not being under the Hindu Marriage Act and therefore section 9 of that Act cannot be invoked by the petitioner-appellant. It found that the marriage in question will not come under Hindu Marriage. The lower Court has found that the petitioner to be a Hindu and respondent-husband be a Christian. Though petitioner claims that the marriage was conducted following the rites and practice of the Hindu marriage; it cannot be treated as a Hindu marriage for the purpose of Hindu Marriage Act. The lower Court has heavily held upon section 2 and section 5 of the Hindu Marriage Act, which clearly postulates that in order to file petition under section 5 of the Hindu Marriage Act, both the parties to the marriage should be Hindus.

(2.) WE have heard Counsel for the appellant at length. It is admitted that parties are the husband Christian and wife Hindu. This marriage cannot be treated as marriage to which the provisions of Hindu Marriage Act are applicable. Section 2 for the Hindu Marriage Act runs as follows : it clearly lays down in the above provisions that who is Hindu and who is not Hindu. " section 5 also further amplified that the only marriage of two Hindus will be recognised by the Act. Therefore, the lower Court correctly held that no marriage could be possible by the appellant under Hindu Marriage Act. Section 9 of the Hindu Marriage Act is for restitution of conjugal rights. " when the marriage is not one under Hindu Marriage Act, section 9 of the Act, has no application. We do not think that it is unnecessary to go to other details in this case as we observe that since one of the parties to the marriage is not Hindu, the provisions in Hindu Marriage Act cannot be invoked and no relief could be sought under the said Act. Claim made by the appellant that the respondent has become a Hindu by practising Hindu religion will not take away the objection raised by the Court below. In fact she states in her petition that respondent is a Christian. This very statement will be sufficient to dismiss her petition. In the result, the appeal fails and is accordingly dismissed.

(3.) IN the circumstances, there is no order as to costs. Appeal dismissed.