Chattisgarh High Court
Asfaq Qureshi vs Aysha Qureshi on 19 March, 2010
HIGH COURT OF CHATTISGARH AT BILASPUR
First Appeal M 47 of 2008 AND First Appeal M 128 of 2008
Asfaq Qureshi
...Petitioners
Versus
Aysha Qureshi
...Respondents
! Mrs Fouzia Mirza
^ Dr N K Shukla
CORAM: HONBLE MR T P SHARMA AND HONBLE MR R N CHANDRAKAR JJ
Dated: 19/03/2010
: JUDGEMENT
First appeals under Section 19 of the Family Courts Act 1984 The following judgment of the Court was passed by T.P. Sharma, J: -
1. F.A.(M)Nos.47/2008 & 128/2008 arising out of the common judgment & decree dated 6-2-2008 passed by the 2nd Additional Principal Judge, Family Court, Durg (for short `the Family Court') in Civil Suit Nos.157A/2007 & 158A/2007 are being disposed of by this common judgment.
2. Vide F.A.(M)No.128/2008, the appellant has challenged legality & propriety of the judgment & decree dated 6-2-2008 passed by the Family Court in Civil Suit No.157A/2007 whereby the petition for restitution of conjugal rights filed by the appellant has been dismissed.
3. Vide F.A.(M)No.47/2008, the appellant has challenged legality & propriety of the judgment & decree dated 6-2-2008 passed by the Family Court in Civil Suit No.158A/2007 whereby the Family Court has decreed the suit, filed by the respondent against the appellant, for declaration of marriage void.
4. The appellant has challenged legality & propriety of the judgment & decree on the ground that the parties are Muslim legally wedded spouses, the Family Court was not having jurisdiction to entertain suit for declaration of marriage to be void under the provisions of the Hindu Marriage Act, 1955.
The Family Court has also erred in holding that marriage has not been solemnized between the parties.
5. Brief facts necessary for the disposal of these appeals, as per pleadings of the parties in Civil Suit No.158A/2007, are that the respondent is a Hindu woman and never converted into Islam. The appellant is a member of Islam. The respondent was working as Shiksha Karmi at Village Badepurda and she used to travel from Durg to Litia Chowk by mini bus of Zia Travels. The appellant was working as Checker in Zia Travels. During the course of travel, they came in contact. On 3-8-2006 while the respondent was travelling in the mini bus of Zia Travels, the appellant provided one chocolate of Dairy Milk to the respondent which she accepted and ate, and she became unconscious. In the evening the respondent came back to her house. She used to travel by the same bus till 20-11-2006. On 22-11-2006, the appellant for the first time told the respondent that he has married her on 3-8-2006 at madarsa situate at Gandai and also showed the certificate relating to nikah. The appellant threatened her and compelled her for registration of marriage at Durg. He also showed photographs. Under duress, the respondent went with the appellant to the Office of Collector, Durg where 3-4 other persons were present. The appellant took signatures of the respondent on some papers and detained her till 3 p.m. The appellant also took some photographs of the respondent. On 22-11-2006, with a view to avoid to go to the Collectorate, Durg, the respondent went to Dhamdha to attend strike, but the appellant reached there at 2 p.m. by motorcycle and forcefully took her to the Marriage Officer at Durg who issued certificate of marriage. The respondent was under duress. Lastly, on 23-11-2006, she narrated the entire incident to her parents. She claims that she never converted into Islam and never consented for marriage with the appellant. The alleged marriage between the parties is void ab initio and the marriage certificate issued by the Marriage Officer is also void. On the aforesaid ground, suit for declaration of marriage & marriage certificate void was filed by the respondent under Section 34 of the Specific Relief Act, 1963 read with Sections 11 & 12 of the Hindu Marriage Act, 1955.
6. The appellant has denied the allegations made in the plaint and has specifically alleged that the respondent used to travel by Zia Travels and during the course of travel, the appellant & the respondent came in contact during which period their relation developed. The respondent used to send SMS and talk with the appellant from her mobile phone No.98279-20460 on his mobile phone Nos.93028-36432 & 94255- 64469. On 3-8-2006, the respondent herself came to the appellant near Kachehri Chowk and she herself willfully went to Gandai by Scorpio vehicle along with the appellant where she converted herself into Islam and filed affidavit for marriage with the appellant, before other persons. Marriage between the appellant & the respondent was performed at Gandai. The respondent herself has decided not to inform the factum of marriage to her parents till registration of marriage. The respondent was party to the marriage and marriage of the respondent with the appellant was well within her knowledge since 3-8-2006. On 21-11-2006, the respondent along with the appellant went to the Collectorate for registration of their marriage. Both the parties presented application for registration of marriage and next date of 22- 11-2006 was fixed by the Marriage Officer. On 22-11-2006, the respondent was present at Dhamdha in connection with strike from where she called the appellant from STD booth and she came from Dhamdha to Collectorate for registration of marriage where marriage was registered and registration certificate was issued to them. The appellant has specifically alleged that the respondent herself has converted into Islam willfully and after her conversion, she had married the appellant under her free consent, therefore, she is not entitled for declaration of marriage to be void.
7. On the basis of averments, issues were framed and after affording opportunity of hearing to the parties, the Family Court has allowed the suit for declaration of marriage and marriage certificate as null & void.
8. Vide Civil Suit No.157A/2007, the appellant has filed petition for restitution of conjugal rights under Chapter VIII of the Muslim law. The appellant has specifically alleged that the respondent is legally married wife of the appellant under the Muslim law. Marriage was performed on 3- 8-2006 at Gandai madarsa. Parties had agreed that they will enjoy their marital life peacefully after registration of marriage. On 22-11-2006, marriage between the parties was registered, but even after registration of marriage, parents of the respondent are not permitting the respondent for discharging her marital obligations and have detained her. The respondent has filed petition for declaration of marriage null & void at the instance and under the pressure of her parents. The appellant is ready & willing to discharge his marital obligations. On the aforesaid basis, suit for restitution of conjugal rights was filed on behalf of the appellant.
9. The respondent has denied the allegations and has specifically pleaded that she is Hindu, she has never converted into Islam and registration of Muslim marriage under the Hindu Marriage Act, 1955 was not legally possible. She has already filed petition for declaration of marriage void. She has specifically pleaded that there was no marriage or lawful marriage between the parties and therefore, restitution of conjugal rights would not be legally permissible.
10. On the basis of averments of the parties, issues were framed and after affording opportunity of hearing to the parties, the Family Court by common judgment & decree dated 6- 2-2008 passed in Civil Suit Nos.157A/2007 & 158A/2007, has dismissed the suit for restitution of conjugal rights and allowed the suit for declaration of marriage null & void.
11. We have heard learned counsel for the parties, perused the judgment & decree impugned and records of the Family Court.
12. Mrs. Fouzia Mirza, learned counsel for the appellant, vehemently argued that the appellant has married the respondent, both are majors and competent to give consent. The respondent was previously known to the appellant, they were having cordial terms and had decided to marry. The respondent voluntarily and willfully went with the appellant to Gandai, she converted herself into Islam and after her conversion she contracted marriage with the appellant in accordance with Muslim law (nikah) on 3-8-2006. After solemnization of marriage, both the parties applied for registration of marriage before the Registering Officer at Durg, finally, the marriage was registered on 22-11-2006 and marriage certificate was issued, but parents of the respondent are not permitting the respondent to discharge her marital obligations and have unnecessarily detained her with them. Learned counsel further argued that in the present case, marriage (nikah) has been performed in accordance with Muslim law, therefore, any petition under the provisions of Hindu law for declaration of marriage null & void is not maintainable and until the marriage solemnized in accordance with the Muslim law is declared null & void in accordance with the provisions of the Muslim law, the parties would still be legally wedded spouses and the respondent is under obligation to discharge her marital obligations.
13. By filing written arguments, the appellant has substantiated the aforesaid grounds and has specifically submitted that marriage solemnized in accordance with the Muslim law cannot be regulated or declared null & void under the Hindu law or the Hindu Marriage Act. Parties are required to file appropriate petition for dissolution of marriage or comply the procedure prescribed in the Muslim Personal Law. The Muslim Personal Law does not observe any rituals or ceremonies for conversion to Islam, one who professes Islam and believes in Islam becomes Muslim.
14. Mrs. Fouzia Mirza, learned counsel for the appellant, placed reliance in the matter of Smt. Neeta Kirti Desai v. Bino Samuel George1 in which the High Court of Bombay has held that in case of husband being a Christian, any petition under the Hindu Marriage Act, 1955 would not be maintainable. Learned counsel further placed reliance in the matter of Sarla Mudgal, President, Kalyani v. Union of India2 in which the Apex Court has held that marriage between Muslim & non- Muslim spouses should be decided according to justice, equity and good conscience. Learned counsel also placed reliance in the matter of Lily Thomas, etc. etc. v. Union of India & Ors.3 in which the Apex Court has held that change of religion does not dissolve the marriage performed under the Hindu Marriage Act or between two Hindus. Married Hindu contacting second marriage after professing Islam, despite his conversion would be guilty of offence punishable under Section 17 of the Hindu Marriage Act read with Section 494 of the I.P.C., because mere conversion does not automatically dissolve his first marriage. Learned counsel relied upon the matter of Smt. Jacintha Kamath v. K. Padmanabha Kamath4 in which the High Court of Karnataka has held that petition for dissolution of marriage solemnized between Christian & Hindu is not maintainable under the provisions of the Hindu Marriage Act, 1955.
15. On the other hand, Dr. N.K. Shukla, learned Senior Advocate appearing on behalf of the respondent, vehemently opposed the appeals and submitted that undisputed facts reveal that prior to the alleged claim of marriage with the respondent, the appellant & the respondent were Muslim & Hindu, respectively. According to claim of the appellant, while the respondent used to travel by Zia Travels, they came in contact and they could know each other, but both the parties have not claimed that their relation became so close that they married. Both the parties have not claimed/pleaded or adduced evidence to show that prior to 3-8-2006 they have ever decided, proposed or agreed to marry, after conversion of the respondent to Islam. Pleadings & evidence of the appellant clearly reveal that on 3-8-2006, suddenly, the appellant took the respondent to Gandai, Distt. Rajnandgaon far away from Durg where the respondent & the appellant were residing, the respondent converted herself into Islam and married the appellant in accordance with the Muslim law. But even after her marriage, the respondent had not gone to house of the appellant or both the parties had not gone anywhere to reside together. Their marriage has not been consummated and they continued their previous life till 20-11-2006. According to the case of the appellant, on 20-11-2006 both the parties filed application for registration of marriage and marriage was registered on 22-11-2006 in accordance with the Hindu Marriage Act which was not legally permissible. Learned Senior Advocate further argued that according to the claim of the appellant, both the parties have filed joint application for registration of marriage on 21-11-2006 and their marriage was registered on 22-11-2006. Documents i.e. proceeding of Marriage Officer Ex.P-1 reveal that both the parties had filed application on 20-11-2006, the case was fixed for 22-11-2006 and notice was issued to guardians of both the parties. However, the application filed on behalf of the parties reveals that affidavit has been executed on 21- 11-2006, marriage officer has received application on 22-11- 2006, but proceeding was initiated on 20-11-2006 prior to filing of application for registration of marriage and prior to execution of affidavit in support of the application for registration of marriage. Even if it is admitted that parties have filed application on 22-11-2006, record reveals that on the date of filing of application, the marriage was registered showing that sufficient opportunity has been provided to the guardians of the parties, though no notice has been issued or served, or possible to be issued or served. This shows that the appellant who was in dominating position has tampered the document in connivance with the Marriage Officer and has succeeded in obtaining marriage certificate which patently reveals that the same is tampered and forged document. Except this material, nothing has been adduced by the parties to show that valid marriage has been performed between the parties either in accordance with the Hindu law or in accordance with the Muslim law. In absence of any evidence and in the aforesaid circumstances, no valid or voidable marriage was performed between the parties and the Family Court has rightly decreed the suit by declaring the marriage void and also dismissed the petition for restitution of conjugal rights. Learned Senior Advocate also argued that although the Family Court has mentioned in the judgment impugned that the civil suit filed by the respondent herein was under Section 34 of the Specific Relief Act, 1963 read with Sections 11 & 12 of the Hindu Marriage Act, 1955, but virtually the suit was under Explanation (b) to sub- section (1) of Section 7 of the Family Courts Act, 1984 under which the Court was competent to declare the matrimonial status of any person. Learned Senior Advocate contended that taking benefit of unconsciousness of the respondent, the appellant had taken her signatures on some papers. The respondent had never consented for marriage or for her conversion into Islam. The respondent, at the time of alleged marriage, was major and was competent to contract, and in absence of free consent and the alleged performance of marriage by fraud, there subsists no marriage at all, between the parties. Therefore, the appellant was not under obligation to file petition for dissolution of marriage/nikah under the provisions of the Dissolution of Muslim Marriages Act, 1939 and the alleged suit under Explanation (b) to sub- section (1) of Section 7 of the Family Courts Act, 1984 for declaration of matrimonial status was competent.
16. Dr. N.K. Shukla, learned Senior Advocate for the respondent, placed reliance in the matter of Sarla Mudgal (supra) in which the Apex Court has held that a marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494 of the I.P.C. In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. Learned Senior Advocate further placed reliance in the matter of Lily Thomas (supra) in which the Apex Court has held that change of religion does not dissolve the marriage performed under the Hindu Marriage Act or between two Hindus. Married Hindu contacting second marriage after professing Islam, despite his conversion he would be guilty of the offence punishable under Section 17 of the Hindu Marriage Act read with Section 494 of the I.P.C., because mere conversion does not automatically dissolve his first marriage. The appellant has also relied on this authority. Learned Senior Advocate also placed reliance in the matter of Shaji v. Gopinath5 in which the Madras High Court has held that in absence of marriage any certificate issued at the instance of husband is null and void. Learned Senior Advocate relied upon the matter of Abdur Rahim v. Padma6 in which the Bombay High Court has held that the presence of two witnesses of Mohammedan faith, cannot ipso facto convert any civil marriage into any other form of marriage much less a `Nikah Fasid'.
17. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties in both the cases.
18. As per pleadings & evidence of the parties, marriage between the parties has not been solemnized in accordance with the Hindu law. The appellant is Muslim and the respondent was Hindu at the time of alleged marriage. Both the parties have relied upon the matter of Sarla Mudgal (supra) in which while dealing with the question of matrimonial dispute between Muslim & Hindu (convert to Islam), the Apex Court has held that "in such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience". The Apex Court has further held that "A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a case was or is not required to be the "Muslim Personal Law". In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a Hindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, I.P.C."
19. In the present case, the respondent by filing suit for declaration of marriage null & void has challenged her marital status and validity of marriage certificate issued by the Marriage Officer. On the other hand, the appellant has challenged maintainability of the suit before the Family Court in accordance with the provisions of the Hindu law. It is needless to say that in absence of any claim and allegation by any party relating to solemnization of marriage in accordance with the Hindu law, the marriage certificate issued by the Marriage Officer does not confer any right upon the parties relating to their marital status. The marriage certificate otherwise issued by the competent authority only proves pre-existence of marriage between the spouses. However, issuance of certificate itself is not solemnization or performance of marriage between the spouses.
20. Civil Suit No.158A/2007 was filed by the respondent under Section 34 of the Specific Relief Act, 1963 read with Sections 11 & 12 of the Hindu Marriage Act, 1955. The law is settled on this point that misnomer or misquoting of provisions would not be treated as a ground for non- maintainability of suit or petition otherwise maintainable before the Court of competent jurisdiction.
21. As per the pleadings of the appellant, the respondent has solemnized marriage with the appellant after converting her to Islam. Marriage under the Mahomedan law is a civil contract and attracts all the incidents of contract. An idolatress or a fire-worshipper is not competent to marry a Muslim person in accordance with clause 259 of the Mulla's Principles of Mahomedan Law. Clause 259 (1) of the Mulla's Principles of Mahomedan Law reads as follows: -
"259. Difference of religion.-(1) A Mahomedan male may contract a valid marriage not only with a Mahomedan woman, but also with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire-
worshipper. A marriage, however, with an idolatress or a fire-worshipper, is not void, but merely irregular."
22. As provided in clause 259 (1) of the Mulla's Principles of Mahomedan Law, a Mohammedan male is not competent to contract marriage with an idolatress or a fire-worshipper i.e. Hindu, but after conversion of a female to Islam, a Mohammedan male may contract marriage with the said female. The Muslim law does not provide any ritual or ceremony for the purpose of conversion into Islam. It is sufficient if he professes the Mahomedan religion in the sense that he accepts the unity of God and the prophetic character of Mahomed.
23. Marriage under the Muslim law is a contract. Clause 251 of the Mulla's Principles of Mahomedan Law provides capacity for marriage which reads as under: -
"251. Capacity for marriage.-(1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage.
24. Section 10 of the Indian Contract Act, 1872 deals with the word `contract' which reads as follows: -
"10. What agreements are contracts.-All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents."
In accordance with Section 10 of the Indian Contract Act, 1872, the free consent of parties competent to contract is sine qua non.
25. The term `free consent' is defined in Section 14 of the Indian Contract Act, 1872 which reads as follows: -
"14. `Free consent' defined.-Consent is said to be free when it is not caused by-
(1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or (3) fraud, as defined in section 17, or (4) misrepresentation, as defined in section 18, or (5) mistake, subject to the provisions of sections 20, 21 and 22.
Consent is said to be so caused when it would not have been given but for the existence of such coercion, undue influence, fraud, misrepresentation or mistake."
26. As per pleadings of the appellant, this is a marriage between members of two different religions i.e. Muslim & Hindu. The appellant has alleged that the respondent has converted her to Islam and after her conversion she has solemnized marriage with the appellant and therefore, any suit for dissolution of marriage solemnized between the parties in accordance with the Muslim law may be dissolved in accordance with the provisions of the Dissolution of Muslim Marriages Act, 1939. In the matters of Smt. Neeta & Smt. Jacintha (supra), the High Court of Bombay & the High Court of Karnataka have held that petition for dissolution of marriage solemnized between Christian & Hindu is not maintainable under the provisions of the Hindu Marriage Act, 1955.
27. In the present case, the respondent has not filed any suit for dissolution of her marriage solemnized in accordance with the Muslim law or the Hindu law, but has filed suit for declaration of marriage null & void. Her detailed pleadings reveal that according to her suit, she had never married the appellant, but fraud has been played upon her and therefore, she had filed the aforesaid suit. The pleadings substantially reveal that virtually the suit was for declaration of her marital status.
28. The respondent has filed suit for declaration of marriage null & void under Section 34 of the Specific Relief Act, 1963 read with Sections 11 & 12 of the Hindu Marriage Act, 1955. Admittedly, declaration of such character was not maintainable under Sections 11 & 12 of the Hindu Marriage Act, 1955, but claim of the parties cannot be denied only on the ground of misnomer, quoting wrong provisions, the courts are required to see the pleadings and relief claimed by the parties. While dealing with the question of misnomer/quoting wrong provisions, the Apex Court in the matter of J. Kumaradasan Nair & Anr. v. IRIC Sohan & Ors.7 has held that it is also now a well-settled principle of law that mentioning of a wrong provision or non-mentioning of any provision of law would, by itself, be not sufficient to take away the jurisdiction of a court if it is otherwise vested in it in law. While exercising its power, the court will merely consider whether it has the source to exercise such power or not.
29. Both the parties have filed suits before the Family Court under the Family Courts Act, 1984. Section 7 of the Family Courts Act, 1984 deals with jurisdiction of the Family Courts. Explanation (b) to sub-section (1) of Section 7 of the Family Courts Act, 1984 empowers the Family Court to declare as to the validity of a marriage or as to the matrimonial status of any person. Explanation (b) to sub- section (1) of Section 7 of the Family Courts Act, 1984 reads as follows: -
"Explanation-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely,-
(a) *** *** ***
(b) a suit or proceeding for a
declaration as to the validity of a
marriage or as to the matrimonial status
of any person;"
30. In accordance with Explanation (b) to sub-section (1) of Section 7 of the Family Courts Act, 1984, the Family Court is competent to give declaration as to the validity of a marriage or as to the matrimonial status of any person.
31. As per the dictum of the Apex Court in the matter of Sarla Mudgal (supra), in case of marriage between members of two different religions, the Court is required to act and the Judge is required to decide the case according to justice, equity and good conscience, but not in accordance with their personal law.
32. Admittedly, both the parties were members of two different religions before the alleged claim of marriage. The respondent has specifically pleaded & adduced evidence that she has never converted to Islam, she never married the appellant, while she used to travel in Zia Travels' bus in which the appellant was Checker, she came in contact with the appellant, on 3-8-2006 the appellant gave her some chocolate, after eating the chocolate she became unconscious and in the evening, she regained her consciousness. According to the claim of the appellant, the respondent has converted to Islam and solemnized marriage with him in accordance with the Muslim law which requires pre-consent for contract of marriage under the Muslim law. By adducing evidence, the respondent has discharged her initial onus that she has not given pre-consent for marriage or she has not converted herself to Islam. Onus is shifted upon the appellant to prove her valid conversion to Islam and solemnization of marriage in accordance with the Muslim law.
33. In the present case, according to pleading and evidence of the appellant in both the appeals, the respondent who was Hindu before the alleged marriage went with the appellant to Village Gandai, far away from Distt. Durg, the respondent went to Gandai madarsa before Mohd. Riyasat Noori (AW-2) along with the appellant where they expressed their intention to marry. According to the evidence of Mohd. Riyasat Noori (AW-2), the appellant & the respondent filed application along with affidavit for their nikah, the respondent was not Muslim, therefore, she again filed application for her conversion into Islam on which she was interrogated by him whereupon she told that they love each other and they want to marry in accordance with the Muslim law. This witness has further deposed that other responsible persons of jamat were present, he interrogated respondent Nivedita on which she showed her intention that she is willing for nikah with the appellant and she want to convert herself into Islam, whereupon he instructed kalma to her and converted her into Islam. Thereafter, he administered nikah and also filled nikahnama vide Ex.D-10. He has also deposed that Mohd. Asir Qureshi was the guardian of Nivedita in the proceeding of nikah. Mohd. Khan & Shakeel Niyaji were witnesses of nikahnama. Yusuf Bhai was Advocate for the appellant. This witness has further deposed that Mohd. Ayub Qureshi, who is an Advocate by profession and practicing at Gandai, has translated the nikahnama into Hindi. According to his evidence he is Urdu teacher and also works as moulvi. The appellant herein has corroborated the evidence of Mohd. Riyasat Noori (AW-2).
34. According to para 1 of the pleading of the appellant, marriage between the parties was performed on 3-8-2006 at Gandai madarsa, Distt. Rajnandgaon. But the evidence of Mohd. Riyasat Noori (AW-2) clearly shows that the alleged nikah was performed at Gandai, Police Station Gandai, Distt. Durg and not at Gandai, Distt. Rajnandgaon. Mohd. Riyasat Noori (AW-2) has stated in his evidence that he is resident of Village Gandai, Police Station Gandai, Distt. Durg. According to the evidence of this witness, marriage was performed at Gandai, Distt. Durg, but according to the pleading of the appellant, marriage between the parties was performed at Gandai, Distt. Rajnandgaon. Persons present at the time of alleged marriage were not Hindus but were members of Islam.
35. Evidence of the appellant on affidavit in Civil Suit No.158A/2007 reveals that the respondent went with the appellant from Durg to Gandai by Scorpio vehicle. Evidence of Mohd. Asir Qureshi (NAW) reveals that he was also present at the time of nikah. This witness is resident of Thakur Para, Khairagarh, Distt. Rajnandgaon. Ex.D-9, the alleged affidavit, reveals that it has been executed at Chuikhadan/Gandai, Distt. Rajnandgaon, before notary, by Mohd. Ashfaque Qureshi. Nikahnama Ex.D-10 (copy of Hindi version Ex.D10C) reveals that nikah was administered by Mohd. Riyasat Noori, R/o Gandai, Pandaria, Distt. Rajnandgaon.
36. Entire evidence on affidavits, pleadings and documents reveal that the appellant has taken the respondent to Gandai, Distt. Rajnandgaon, but the alleged marriage has been performed at Gandai, Distt. Durg and nikah was administered by Mohd. Riyasat Noori. Gandai, Distt. Durg and Gandai, Distt. Rajnandgaon are not one and the same. Except the respondent and Mohd. Asir Qureshi (NAW), other persons were not resident of Durg, they were R/o Khairagarh, Gandai and other places. The respondent has specifically pleaded and adduced evidence that the appellant gave some chocolate to her on 3-8-2006 and after eating the chocolate she became senseless. In these circumstances, burden to prove solemnization of marriage with free consent of the respondent was heavily on the appellant, but the evidence adduced on behalf of the appellant is completely self-contradictory. Conduct of the appellant and conduct of other witnesses are unnatural. Evidence of Mohd. Riyasat Noori (AW-2) reveals that the respondent converted to Islam only for the purpose of performing marriage, she herself has not converted into Islam, but this witness has converted her to Islam. Relevant part of his evidence (para 1) reads thus, "dyek i<kdj eqlyeku /keZ Lohdkj djok;k] mlds ckn fudkg i<k;k A"
37. After the alleged nikah/marriage, the respondent came back to her house, she has not resided with the appellant even for a single day and her alleged marriage has not been consummated. She again used to go to her duty in usual course.
38. Mohd. Riyasat Noori (AW-2) has admitted in para 8 of his evidence that he is not having any certificate to show that any mosque has appointed him as moulvi. Evidence of this witness is full of suspicion. He is not resident of village Gandai, Distt. Rajnandgaon, but resident of village Gandai, Distt. Durg, he is not having any certificate for moulvi work and he has not been appointed as moulvi. According to his evidence, both the parties went to marry and for the purpose of marriage, the respondent wanted to convert herself into Islam, therefore, after administering kalma, he converted her into Islam. No specific ritual is necessary for conversion into Islam, but conversion must be voluntary and conversion must be with a view to convert herself into Islam accepting the unity of God and the prophetic character of Mohammed, but not for other purpose including the purpose of marriage.
39. While dealing with the question of propriety of conversion from one religion to another religion, the Apex Court in the matter of Lily Thomas (supra) has held that any conversion by non-Muslim to Islam without any real change and belief merely with a view to avoid any earlier marriage or enter into second marriage, is void. Paras 38 & 40 of the said judgment read thus, "38. Religion is a matter of faith stemming from the depth of the heart and mind.
Religion is a belief which binds the spiritual nature of man to a supernatural being; it is an object of conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and denotes an act of worship. Faith in the strict sense constitutes firm reliance on the truth of religious doctrines in every system of religion. Religion, faith or devotion are not easily interchangeable. If the person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution. Under Hindu law, marriage is a sacrament. Both have to be preserved.
40. I also agree with brother Sethi, J. that any direction for the enforcement of Article 44 of the Constitution could not have been issued by only one of the Judges in Sarla Mudgal case (supra). In fact, Sarla Mudgal case was considered by this Court in Ahmedabad Women Action Group (AWAG) v. Union of India {(1997) 3 SCC 573} and it was held that the question regarding the desirability of enacting a uniform civil code did not directly arise in Sarla Mudgal case. I have already reproduced the order of this Court passed in Sarla Mudgal case on 23-4-1980 in which it was clearly set out that the learned counsel appearing in that case had, after taking instructions, stated that the prayers were limited to a single relief, namely, a declaration that where a non-Muslim male gets converted to the Muslim faith without any real change of belief and merely with a view to avoid any earlier marriage or to enter into a second marriage, any marriage entered into by him after conversion would be void."
40. Although the evidence of Mohd. Riyasat Noori (AW-2) is full of suspicion, but even according to his evidence, the respondent requested him that she want nikah with the appellant, therefore, she wants to convert to Islam, then he administered kalma and converted her to Islam and also administered her nikah. Relevant portion of para 1 of the evidence of Mohd. Riyasat Noori (AW-2) reads thus, *----------fuosfnrk us dgk fd eSa fudkg djuk pkgrh gwaW blfy, eqfLye /keZ viukuk pkgrh gaWw A^
41. The respondent or the appellant has not adduced any evidence to show that the respondent converted herself to Islam and accepted the unity of God and the prophetic character of Mohammed or has never shown faith in Islam. Evidence of the respondent reveals that she had never stayed with the appellant even for a single day which further reveals that marriage has not been consummated. Evidence of Mohd. Riyasat Noori (AW-2) relating to conversion of the respondent to Islam is sufficient to establish that even if it is admitted, then also, conversion was only for the purpose of marriage and not for faith in the unity of God and the prophetic character of Mohammed. As held by the Apex Court in the matter of Lily Thomas (supra), such conversion was void.
42. Even nothing is on record to otherwise substantiate the respondent's faith in the unity of God and the prophetic character of Mohammed. Thus the alleged nikah suffers from vice of one of the parties being a non-Muslim idolatress and claiming to be under the effect of intoxication during the period in which the nikah is alleged to have been solemnized. The effect of one party being under intoxication would be that there was no contract marriage as a person under intoxication is undisputedly incompetent to give consent.
43. Material produced on behalf of the parties does not make out that the appellant has been able to meet out the pleadings and discharge of onus by the respondent relating to her state of intoxication. The onus lied heavily on the appellant particularly in the backdrop of his dominant position. Even in case that the respondent was not under intoxication, then also the alleged nikah would be fasid nikah and such marriage has no legal effect unless the marriage is consummated. While dealing with the question of validity of marriage, the Apex Court in the matter of Chand Patel v. Bismillah Begum and another8 has held that an irregular marriage has no legal effect before consummation and such marriage is not unlawful in itself but unlawful for something else. Paras 29 & 30 of the said judgment read thus "29. Para 264 which deals with the distinction between void and irregular marriages reads as follows:
"264. Distinction between void and irregular marriages.-(1) A marriage which is not valid may be either void or irregular.
(2) A void marriage is one which is unlawful in itself, the prohibition against the marriage being perpetual and absolute. Thus a marriage with a woman prohibited by reason of consanguinity, affinity, or fosterage, is void, the prohibition against marriage with such a woman being perpetual and absolute.
(3) An irregular marriage is one which is not unlawful in itself, but unlawful `for something else,' as where the prohibition is temporary or relative, or when the irregularity arises from an accidental circumstance, such as the absence of witnesses. Thus the following marriages are irregular, namely-
(a) a marriage contracted without witnesses;
(b) a marriage with a fifth wife by a person having four wives;
(c) a marriage with a woman undergoing iddat;
(d) a marriage prohibited by reason of difference of religion;
(e) a marriage with a woman so related to the wife that if one of them had been a male, they could not have lawfully intermarried.
The reason why the aforesaid marriages are irregular, and not void, is that in Clause (a) the irregularity arises from an accidental circumstance; in Clause (b) the objection may be removed by the man divorcing one of his four wives; in Clause
(c) the impediment ceases on the expiration of the period of iddat; in Clause (d) the objection may be removed by the wife becoming a convert to the Mussalman, Christian or Jewish religion, or the husband adopting the Moslem faith;
and in Clause (e) the objection may be removed by the man divorcing the wife who constitutes the obstacle; thus if a man who has already married one sister marries another, he may divorce the first, and make the second lawful to himself.
30. Para 266 deals with the effects of a void (batil) marriage and provides that a void marriage is no marriage at all. It does not create any civil rights or obligations between the parties. The offspring of a void marriage are illegitimate. Para 267 which deals with the effects of irregular (fasid) marriages reads as follows:
"267. Effects of an irregular (fasid) marriage.-(1) An irregular marriage may be terminated by either party, either before or after consummation, by words showing an intention to separate, as where either party says to the other `I have relinquished you'. An irregular marriage has no legal effect before consummation. (2) If consummation has taken place-
(i)the wife is entitled to dower, proper or specified, whichever is less;
(ii) she is bound to observe the
iddat, but the duration of the iddat
both on divorce and death is three
courses;
(iii) the issue of the marriage is
legitimate. But an irregular
marriage, though consummated, does
not create mutual rights of
inheritance between husband and wife
(Baillie, 694, 710)."
44. In this case, neither the parties claim that marriage was consummated nor is it born by the circumstance that they had any opportunity to consummate the marriage. In absence of such circumstance or absence of consummation of marriage, we have no hesitation in holding that there was no nikah between the parties and even in the remote possibility of inferring fasil nikah, the same has been sufficiently relinquished by the respondent and also it is without legal effect in absence of consummation.
45. Another set of evidence relating to marital character is the alleged registration proceeding of marriage.
46. The respondent has deposed in her evidence that she was under pressure and the appellant succeeded in registration of marriage at Durg. The Family Court has examined Marriage Officer Amrit Xalxo, Deputy Collector, as Court witness. He has deposed in his evidence that he has registered the marriage of the parties on 22-11-2006 under the Hindu Marriage Act. He has also deposed that Exs.P-2 & P-3 are copies of record of marriage. Order sheet of marriage proceeding reveals that both the parties have filed application for registration of marriage along with affidavits on 20-11-2006, but the affidavits Exs.P-4 & P-5 reveal that the affidavits have been prepared on 21-11-2006.
Application for registration of marriage also reveals that they have filed application on 21-11-2006, but the certificate of Marriage Officer reveals that he has received the application for registration of marriage along with copy of challan on 22-11-2006. Copy of order sheet Ex.P-1 reveals that the case was fixed for 22-11-2006 and notices were issued to parents of the parties. Back portion of the document Ex.P-1 reveals that on 22-11-2006, parents of the parties were not present and any objection was also not filed, therefore, marriage was registered and certificate was issued. However, this document does not show as to when the notices were issued to parents of the parties.
47. When the application was not filed on 20-11-2006 and was filed only on 22-11-2006, why the date of presentation of the application in Ex.P-1 was written as 22-11-2006, why the case was fixed for 22-11-2006, why the notices were not issued & served upon parents of the parties and why the marriage certificate was issued in so hasty manner, especially by tampering the document? In absence of answers to the aforesaid questions/queries, the alleged registration of marriage and issuance of marriage certificate cannot be held to be genuine as it is full of suspicion. Exs.P-1 to P-5 clearly reveal that application for registration of marriage along with affidavits was filed on 22-11-2006 and on the same day the marriage was registered by making false entry. The Marriage Officer was not competent to register marriage between a Muslim & a Hindu under the Hindu Marriage Act, therefore, registration of marriage is per se illegal and does not give any marital status to the parties. Even otherwise, in absence of any claim and allegation by any party relating to solemnization of marriage in accordance with the Hindu law, the marriage certificate issued by the Marriage Officer does not confer any right upon the parties relating to their marital status.
48. On examination of pleadings & evidence, in the light of law propounded for deciding the case of claim of marriage between members of different religions in the case of Sarla Mudgal (supra), pleadings & evidence of the parties clearly establish the fact that the respondent has not converted into Islam, she has not married the appellant and therefore, she was not under obligation to discharge the marital obligation. Her suit for declaration of marriage void and declaration of her marital status was maintainable under Explanation (b) to sub-section (1) of Section 7 of the Family Courts Act, 1984.
49. On close scrutiny of pleadings & evidence, we hold that
(a) in case of claim of marriage between members of two different religions, the personal law of any party would not be applicable and as held in the matter of Sarla Mudgal (supra), the Court is required to decide the case according to justice, equity and good conscience;
(b) the appellant & the respondent are not legally wedded spouses under the Muslim law and no valid nikah was solemnized between the parties;
(c) the respondent has never converted her to Islam; and
(d) the Family Court is competent to declare the marital status of the parties.
50. In case of non-existence of valid marriage in any form between the parties, the Family Court has not committed any illegality by declaring the marital status of the parties and dismissing the suit for restitution of conjugal rights filed by the appellant.
51. For the foregoing reasons, both the first appeals {F.A.(M)Nos.47/2008 & 128/2008} are liable to be dismissed and are hereby dismissed. The appellant shall bear his own cost and cost of the respondent.
52. In the present case, alleged registration of marriage under the provisions of the Hindu Marriage Act, 1955 appears to be full of suspicion and independent inquiry would be necessary into the matter. Therefore, the District Magistrate, Durg is directed to hold an independent inquiry relating to the manner in which the alleged marriage was registered in so hasty manner, after providing full opportunity of hearing and observing the principles of natural justice without being influenced by this judgment, and take suitable action against the erring officer.
53. Advocate fees as per schedule.
54. Decree be drawn accordingly.
JUDGE