Mumbai : The Bombay High Court has held that a Hindu, married with a non-Hindu as per Hindu rites and rituals cannot seek divorce under the provisions of the Hindu Marriage Act 1955.

Nitu Rai (name changed), a Hindu, married Sunil Pinto (name changed), a Christian, in 1999 as per Hindu rites and rituals. Both continued to profess their respective religions.
Nitu approached the family court seeking annulment of the marriage and alternatively claimed the decree on the grounds of cruelty.
She also contended that their marriage was null and void as the same being in contravention of essential conditions of valid marriage provided under Section-5 of the Hindu Marriage Act.
In April 2013, the Family Court, after hearing the parties and considering the facts pleaded in the petition that at the time of marriage the petitioner-wife was Hindu by religion and respondent-husband was Christian and continued to practise and profess their respective religions, rejected the petition observing that the petition discloses no triable cause.
Subsequently, Nitu preferred an appeal before the high court.
Pointing out the Section-2 of the Hindu Marriage Act, which clearly states that the petition can be filed by the parties who are both Hindus a division bench headed by Justice Vijaya Tahilramani, said, “The appellant herself has stated that the respondent was not a Hindu at the time of marriage or even thereafter. If this condition is not fulfilled and there was no contravention of provisions laid down under Section-5 of the Hindu Marriage Act, the Family Court was right in observing that the appellant has no right to file such a petition.”
“Provisions of Hindu Marriage Act, 1955 can be availed and applicable when both the spouses are Hindus and their marriage is performed as per Hindu rites and rituals and the marriage. It is also necessary that at the time of filing petition, both the spouses are Hindus by religion except for seeking remedy of divorce under the Hindu Marriage Act,” the court noted.

 Sadhna Kumar

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