FLG. OFFICER RAJIV GAKHAR versus MS. BHAVANA @ SAHAR WASIF

Citation: [2011] 6 S.C.R. 372 · Decided: 11-05-2011 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Dismissed

Judgment (excerpt)

A 
B 
(2011] 6 S.C.R. 372 
FLG. OFFICER RAJIV GAKHAR 
v. 
MS. BHAVANA @ SAHAR WASIF 
(Civil Appeal No. 4278 of 2011) 
MAY 11, 2011 
[P. SATHASIVAM AND H.L. GOKHALE, JJ.] 
Hindu Marriage Act, 1955: ss. 5, 12 - Divorce petition filed 
by appellant-husband uls.5 for declaring his marriage nullity 
c on the ground of cheating and misrepresentation by the 
respondent-wife - Allegation in the petition against wife was 
that she did not disclose to the appellant prior to their 
marriage ·the fact of her conversion to Islam and previous 
marriage with a muslim, about the birth of two children out of 
D said wedlock and her divorce from him - Trial court granted 
divorce - High Court set aside the divorce decree - On 
appeal, held: The analysis of the assertion of the wife and 
witnesses clearly showed that before marriage, the respondent 
had become a full-fledged Hindu by performing Shudhikaran 
E ceremonies in the manner followed by Hindu custom and all 
the material facts were known to the appellant at the time of 
the marriage - 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 uls. 5 of the Act, the order 
F of High Court is upheld. 
The appellant was a pilot with the Indian Air Force. 
In April, 1997, while he was traveling in a train, he met the 
respondent who introduced herself as "Bhavana". The 
case of the appellant was that during the conversation, 
G the respondent claimed to be a spinster. Subsequently, 
both of them met in Delhi and the respondent tricked the 
appellant into marrying her on 28.11.1999 at Arya Samaj 
Mandir as per Hindu rites and ceremonies. The 
H 
372 
· FLG. OFFICER RAJIV GAKHAR v. BHAVANA @ 
373 
SAHAR WASIF 
respondent gave a written affidavit to the Arya Samaj A 
Mandir that she was a Hindu, a spinster and. was never 
married before. 
In January 2000, the appellant met the father of the 
respondent and during conversation, the appellant found 8 
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 'WK' after 
her conversion to Islam and she had two children out of 
the said wedlock. On 22.7.2000, an FIR was registered C 
against the respondent and her brother under Sections 
406, 419 and 420, IPC. The appellant filed a suit under 
Sections 5 and 12 of the Hindu Marriage Act, 1955 
seeking dissolution of marriage. Before the trial Court, 
the appellant narrated as to how he was deceived and 
cheated by the respondent and also claimed that the D 
parties to the petition had 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. 
· 
The trial court declared the marriage between the 
parties to the petition a nullity and also ordered the 
appellant to pay ?2000/- per month as permanent alimony 
to the respondent towards her maintenance. On appeal, 
E 
the High Court set aside the judgment of the trial court. 
F 
The instant appeal was filed challenging the order of the 
High Court. 
Dismissing the appeal, the Court 
HELD: 1. Chapter IV of the Hindu Marriage Act, 1955 G 
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 H 
374 
SUPREME COURT REPORTS 
[2011] 6 S.C.R. 
A 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 voidable and may 
B 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, 
orb) that the marriage is in contravention of the condition 
specified in clause (ii) of Section 5; or c) that the consent 
c 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. 
0 
Chapter II deals with Hindu marriages and Section 

Excerpt shown. Read the full judgment & AI analysis in Lexace.