Gujarat High Court
Mumtazbanu Alimiya Pirsabali Saiyed vs State Of Gujarat on 9 September, 2021
Author: Sonia Gokani
Bench: Sonia Gokani, Nirzar S. Desai
R/SCR.A/4174/2020 JUDGMENT DATED: 09/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4174 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MUMTAZBANU ALIMIYA PIRSABALI SAIYED
Versus
STATE OF GUJARAT
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Appearance:
MR GULMOHAMMED R QURESHI(10786) for the Applicant(s) No. 1
MR. JAVED S QURESHI(6999) for the Applicant(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4,5,6
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 09/09/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is a case of interreligious marriage of a young girl with the man who was divorcee. While issuing notice on Page 1 of 10 Downloaded on : Sun Jan 16 13:35:44 IST 2022 R/SCR.A/4174/2020 JUDGMENT DATED: 09/09/2021 08.09.2020, the following order came to be passed by this Court: -
"1. This is a petition under Article 226 of the Constitution of India seeking writ of habeas corpus preferred by the mother of the corpus who has alleged against respondent nos. 4 to 6. The missing complaint is given to the police, however, the same has not been registered as First Information Report and continued to remain as missing compliant till date.
2. It is the grievance that the respondent no.4 is a married man of 38 years of age and the corpus is barely 21 years of age. The amount of threat perpetrated by the respondent with the help of the authority is narrated in the complaint given to the DSP, Nadiad.
3. Issue Notice returnable on 15.09.2020. Learned APP Mr. Manan Mehta waives service of notice for and on behalf of the respondent - State.
4. The corpus shall be brought before this Court on the scheduled date through video conference to be conducted in the nearest court from where the corpus is found or the Action Taken Report shall be tendered."
2. On 17.09.2020, the police could manage to bring the corpus before this Court and it was realised that the marriage already has been performed of hers with respondent no.4 as she converted herself from one religion to another. Following is the order which would deserve reproduction: -
"1. The corpus today is brought before this Court and it was realized that according to her, she is married to the respondent no. 4 by performing the marriage at temple.Page 2 of 10 Downloaded on : Sun Jan 16 13:35:44 IST 2022
R/SCR.A/4174/2020 JUDGMENT DATED: 09/09/2021
2. We had made a request to Ms. Bhatt, learned Additional Chief Judicial Magistrate, District Court, Surat and she has conveyed to the Court that there are no valid papers of divorce collected by the officer concerned so also the details about the procedure needs to be followed for conversion from one religion to another religion is also not available as there is no investigation in that regard. According to her, the wife of respondent no.4 has married elsewhere however, that was on account of the affair of his with the corpus but their marriage also has been performed in the temple. The certificate of Registration of Marriage is based on the performance of the ceremony at the temple.
3. The corpus insisted on being with the respondent no.4 and she also knows that the conversion of hers has taken place at the State of Maharashtra.
4. Let all these aspects be investigated by the Police Officer and the same be reported to the Court. The corpus shall be produced before the Court on 30.09.2020. As she wishes to join respondent no.4 only, the whereabouts of theirs shall be noted by the officer concerned. She being the adult who insists on joining respondent no.4, there can be no fetter.
5. Matter to appear on 30.09.2020."
3. The investigation took place and the report sent to this Court indicated that the marriage had been performed, at the temple, after the conversion of the corpus from Islam to Hinduism. The certificate of registration of marriage also has been brought on record, which was permitted on the strength of the ceremony, which took place at the temple at Maharashtra.
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4. On 30.09.2020 when the matter was scheduled, the order passed was as follows: -
"1. Pursuant to our order dated 17.09.2020, the papers are presented before learned Judge at Surat by the Police after inquiring about the aspects of divorce and conversion. It is conveyed to us that divorce has taken place of the respondent no.4 and his ex-wife has already remarried. The statements of both, her brother and father have been recorded. It is conveyed that by oral transaction, the divorce has taken place and the relationship of the corpus and respondent no. 4 was the base reason for the disputes.
2. We gather from the papers that the marriage of the corpus with the respondent no.4 has taken place at Surat. It is also further conveyed to us that the conversion of the corpus has taken place at Maharashtra in a Shiva Temple. The corpus was following Islam as religion and respondent no.4 being Hindu, it was the duty of the Registrar to ensure that the proper procedure whether is followed or not for any conversion, before the registration of marriage takes place, ought to have been regarded.
3. The Gujarat Freedom of Religion Act deserves reference at this stage where Section 5(1) of the Act insists on prior permission to be taken from the District Magistrate with respect to the conversion by the person who converts and Section 5(2) also requires to send intimation to the District Magistrate concerned of the district where the ceremony has taken place of the fact of such conversion in such form as prescribed under the rules. The failure on the part of the person who converts the person from one religion to another religion and the person who is converted and required to be intimated to the District Magistrate, sub-section (3) of Section 5 makes it punishable.
4. It appears that in a very calculative move, the conversion at Shiva Temple at Maharashtra is done by the Petitioner so that the provision of Gujarat Page 4 of 10 Downloaded on : Sun Jan 16 13:35:44 IST 2022 R/SCR.A/4174/2020 JUDGMENT DATED: 09/09/2021 Freedom of Religion Act could be bypassed. We are shared the form of Registration of Marriage on dated 06.08.2020 which gives clearly the details of the corpus and the respondent no.4, both belonging to different religions which itself would have put the Registrar to alert and he ought to have insisted on the certificate of conversion instead of straightway registering the marriage. It is the Registrar, Kamrej who has given the certificate of Registration of Marriage. Let him be asked to explain by the concerned Police Officer as well as by District Magistrate, the same shall be furnished before this Court and if any serious lapse is noticed, due procedure prescribed under the service law should be followed.
5. Any attempt to overreach the process of law, if is not curtailed by the officers who were otherwise required to guard against this, will only render the provisions otiose bearing in mind the object of the act.
6. Let such a report be produced before this Court on or before 14.10.2020.
7. We notice that the corpus is presently with respondent no.4. She explains that she has no difficulties and is desirous to continue to be with him. While permitting her to so do it because she is above 18 years of age, matter is posted on 15.10.2020 for this limited purpose as mentioned above to ensure that the lapse in fulfilling the provision does not mar her future. There shall be no requirement for the corpus to be presented before this court."
5. On 15.10.2020, the report has been received from the Registrar of Marriage, Kamrej, Surat. He explained that the provisions of Gujarat Freedom of Religion Act would have no bearing so far as his action of registering the marriage is concerned as on the basis of the ceremony of marriage which Page 5 of 10 Downloaded on : Sun Jan 16 13:35:44 IST 2022 R/SCR.A/4174/2020 JUDGMENT DATED: 09/09/2021 took place at the temple, that he has registered the marriage. What all he needed to check was that the marriage has taken place.
6. As referred to in the order of this Court dated 30.09.2020, the conversion of the corpus has taken place at Maharashtra in a Shiva Temple. Whether proper procedure was followed or not in the conversion before the registration of marriage takes place, ought to be regarded by the Marriage Registrar. Just name of the corpus has not been changed in the certificate. It is quite obvious from the name itself that she would be following Islam as a religion and the respondent no.4 is Hindu.
7. Section 5(1) of the Gujarat Freedom of Religion Act requires a prior permission of the District Magistrate with respect to conversion by the person who converts anyone from one religion to another religion and Section 5(2) of the Act requires intimation to the District Magistrate concerned of the district where the ceremony has taken place of the fact of such conversion in such form as prescribed under the rules. The failure on the part of the person who converts anyone from one religion to another and the person who is converted, is required to intimate to the District Magistrate, as Page 6 of 10 Downloaded on : Sun Jan 16 13:35:44 IST 2022 R/SCR.A/4174/2020 JUDGMENT DATED: 09/09/2021 otherwise, sub-section (3) of Section 5 of the Act makes this failure punishable.
7.1. It is true that the Act would have its applicability within the territory of the State of Gujarat. It is a very smart and calculative move on the part of the person who are seeking to convert others to get it done in the neighbouring State to overreach the provisions of Gujarat Freedom of Religion Act. At the same time, when the marriage is to be registered in the form of Registration of Marriage, the form would have the details of both the spouses and if both belongs to different religions, the certificate of conversion would be necessary to be obtained, what has been needed in the instant case also. However, the Registrar without insisting of any such certificate of conversion, straightway had registered the marriage. The form filled in by spouses is dated 06.08.2020.
8. When the Registrar, Kamrej had been asked to explain his lapse which bypasses and overreaches the provisions of law, he has explained this wise: -
"On 11/10/2020, the statement of Shri Avinash s/o Tarachandbhai Yadavrao Sirsanth, the Registrar of Marriage, Kamrej, Surat has been recorded. It is stated in the statement that on receipt of the Page 7 of 10 Downloaded on : Sun Jan 16 13:35:44 IST 2022 R/SCR.A/4174/2020 JUDGMENT DATED: 09/09/2021 marriage registration form in accordance with Section-5 of the Marriage Registration Act, 2006 duly filled along with an application for registration of marriage of the adult man and woman and on production of necessary evidences, he registers a marriage and issue a certificate thereabout.
Najmabanu d/o Arifali Saiyad, aged 21 years had produced an affidavit executed before the Notary dated 07/08/2020 and the photographs about her renouncing of the Islam and embracing the Hinduism.
She also produced an affidavit about solemnization of her marriage with Kanubhai Varsingbhai Rabari at Sukhnath Mahadev, Kamrej, Ta. Kamrej in accordance with the Hindu traditions on 06/08/2020.
On 06/08/2020, she gave an application along with the affidavits and documents such as birth certificate, Aadhar card etc. On the basis thereof, on 27/08/2020, an entry was made at Sr.No. 98 of part - IV of the Marriage Register and the Certificate of Marriage was given to her. If a man and a woman, approach for registration of marriage, belonging to different religions, it is not required of him to verify as to Page 8 of 10 Downloaded on : Sun Jan 16 13:35:44 IST 2022 R/SCR.A/4174/2020 JUDGMENT DATED: 09/09/2021 whether they have sought a permission for marriage from the District Collector/ Magistrate or not."
9. It is surely a calculative move on the part of the respondent no.4 who has attempted to overreach the process of law. It is utmost necessary for the officer concerned to check tendency and attempt, as otherwise, this surely render the provisions otiose. Considering the object of the act, which is, not to permit the forcible conversion from one religion to another religion, the Registrar of Marriage, even if, required to look into the ceremony of the marriage, which took place for it to register the marriage, it cannot be oblivious of the requirement of the provisions of Gujarat Freedom of Religion Act necessitating the prior permission of the District Magistrate for conversion, as the marriage could not have been registered on the basis of the ceremony which had taken place at Hindu temple unless there is a valid conversion from one religion to another religion, as otherwise, the spouses could always prefer it under the Special Marriage Act for getting themselves married.
9.1. Therefore, to say on the part of the Registrar, Kamrej that he was not to look anything beyond the ceremony took place and the certificate of the priest who performed the ceremony and the photographs at the best is neither Page 9 of 10 Downloaded on : Sun Jan 16 13:35:44 IST 2022 R/SCR.A/4174/2020 JUDGMENT DATED: 09/09/2021 technically nor in essence acceptable. He, as a Registrar, has to be more vigilant and at least is required to seek necessary proof of sanction of the authority concerned for such conversion and the procedure to be followed of intimation.
10. With that word of caution, noticing that the respondent no.4's wife has already, in the instant case, taken a divorce because of love affair between these two and she also had remarried elsewhere, this issue is not stretched. It has been also inquired by learned judge in whose presence the production of the corpus is taken place, as also, from the report of the police that she is happily married and therefore, this petition deserves to be disposed of, with a copy of this order to be sent to the District Magistrate and to the concerned Principal Secretary for creating more awareness amongst the officers who are working as Registrar of Marriage so that all necessary care can be taken while performing their respective duties.
11. Disposed of, accordingly.
(SONIA GOKANI, J) (NIRZAR S. DESAI,J) Bhoomi Page 10 of 10 Downloaded on : Sun Jan 16 13:35:44 IST 2022