Is a petition under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights maintainable where one of the parties is not a Hindu?

No. A valid marriage governed by the Hindu Marriage Act must first be established before a petition under Section 9 can be entertained. Where one party is a Christian by religion and does not fall within any of the explanations to Section 2, the Act does not apply to the marriage and such a petition is not maintainable.

Hindu Marriage Act, 1955 — ss.2, 5, 7, 9 — Restitution of conjugal rights — Applicability of the Act — Marriage between a Christian and a Hindu — Interpretation of a provision in the scheme of the Act — Hindu Marriage Act, 1955 — s.9 — a valid marriage under the Act is a condition precedent — Held: To maintain a petition under Section 9 for restitution of conjugal rights, a valid marriage governed by the Hindu Marriage Act must first be established. Where one of the parties is a Christian by religion and does not fall within any of the explanations to Section 2, the marriage is not one to which the Act applies, and a petition under Section 9 is not maintainable. (¶13, 26) Hindu Marriage Act, 1955 — s.9 — a provision cannot be read in isolation from the scheme of the Act — Held further: An independent provision of law cannot be read in isolation from the rest of the statute. For interpreting a particular provision the preamble, the related provisions and the scheme of the Act as a whole must be considered to determine the real intent of the statute; the preamble is the key to open the mind of the makers of the legislation. (¶21, 23) Hindu Marriage Act, 1955 — s.9 — the common nouns "husband" and "wife" do not extend the Act to non-Hindus — Held further: Although Section 9 employs the common nouns "husband" and "wife" without the prefix "Hindu", it cannot on that account be held to apply to non-Hindus. The scheme of the Act, as established from its preamble and provisions, cannot be overridden by the mere use of common nouns in a single section, and to read Section 9 otherwise would isolate it from the rest of the Act. Appeal dismissed. (¶24, 25, 27)

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