Indian Kanoon - Search engine for Indian Law

3. In his judgment, the learned Chief Justice says that at the time of the marriage Ebrahim was domiciled in British India, and that in 1912, when the petitioner embraced the Mahomedan faith, both Ebrahim and the petitioner were domiciled in British India. There is no evidence as to this, and no evidence where Ebrahim was domiciled when he pronounced talak, or what his domicile of origin was, or whether that was ever changed. Mr. Engineer for the respondent says that Ebrahim at the time when he pronounced talak was domiciled in British India, but he admits that there is no evidence as to this. Mr. Carden Noad for the petitioner says that Ebrahim at the time when he pronounced talak was domiciled in Secunderabad, which is in a Native State; but he admits that the only evidence in support of this assertion is the statement in the agreed facts that between the years 1914 and 1933 Ebrahim was a permanent resident of Secunderabad. However, the parties have agreed that at all material times Ebrahim was domiciled either in British India or in Secunderabad, and have also agreed for the purposes of this suit and appeal that the law applicable in Secunderabad is the same as in British India. The appeal has accordingly been argued and decided upon that assumption.

7. Two points have been argued, namely, (1) whether the husband could have divorced his wife by talak while she remained a Christian, and (2) whether he could do so after she became a convert to Mahomedanism.

8. The contentions of the appellant upon the first point may be summarised as follows :- This was a Christian marriage, which is a voluntary union for life of one man to one woman to the exclusion of all others Hyde v. Hyde and Woodmansee (1866) L.R. 1 P. & D. 130 and Nachimson v. Nachimson [1930] P. 217. The English Courts have refused to recognise talak as applicable to Christian marriage Rex v. Hammersmith Superintendent Registrar of Marriages : Mir-Anwaruddin, Ex parte [1917] 1 K.B. 634 and the Courts in India, where the husband is domiciled, which alone have jurisdiction over the rights and obligations arising out of the marriage Nachimson v. Nachimson, above cited and Harvey v. Farnie (1880) 6 P.D. 35 on appeal (1882) 8 App Cas. 43, will apply the same principle to a Christian marriage. If this marriage had been entered into in India, it would have been void unless solemnised in accordance with the provisions of the Indian Christian Marriage Act (see Section 4 of Act XV of 1872). A marriage solemnised under this Act is essentially a monogamous marriage, involving an implied obligation not to marry another wife while that marriage subsists, and although a Mahomedan under his personal law is allowed four wives, he must be deemed to have abandoned his rights under that law by contracting marriage with a Christian, and would be guilty of bigamy if he married again while the first marriage subsisted. In any event a marriage solemnised under Act XV of 1872 is not a Mahomedan marriage, and cannot be dissolved by talak at the instance of the husband. The grounds upon which a Christian wife in India may divorce and be divorced are regulated by the Indian Divorce Act (IV of 1869). Those grounds being defined in that Act, she could not claim to divorce her Mahomedan husband and he could not claim to divorce her upon grounds applicable to a Mahomedan marriage. It is true that as he did not profess the Christian religion a Mahomedan husband could not have petitioned for a divorce against his wife under the Indian Divorce Act until by an amendment in 1926 the Court was given jurisdiction "where the petitioner or respondent professes the Christian religion ", but this was a casus omissus when the Act was passed in 1869, and as the grounds and the procedure upon which a Christian wife might be divorced were defined in that Act, divorce by talak would not apply to her.

9. The contentions of the respondent upon this point were shortly as follows :- A marriage in Scotland between a Mahomedan, who is domiciled in British India, and a Christian woman is not monogamous by the law of the husband's domicile applicable to Mahomedans. Even if the marriage had been solemnised in India under Act XV of 1872, the husband could still by his personal law have married as many as three other wives. If it had been intended by that Act to constitute a marriage under it monogamous, the Act would have so provided. By the Special Marriage Act (III of 1872), under which the marriage sought to be dissolved by the present suit was celebrated, " neither party must, at the time of the marriage, have a husband or wife living" (Section 2 (1)), every person married under the Act who, during the lifetime of his or her wife or husband, contracts any other marriage, is punishable for bigamy, "whatever may be the religion which he or she professed at the time of such second marriage" (Section 16), and the Indian Divorce Act is in terms made applicable to all marriages contracted under the Act (Section 17). There are no such provisions in Act XV of 1872, and the personal law of a Mahomedan husband marrying under that Act is not affected. The Indian Divorce Act of 1869 no doubt gave a Christian wife as petitioner rights of divorce against her Mahomedan husband, but it did not, until 1926, give any rights of divorce to him, and whatever may be the position since the Act was amended in 1926 by conferring rights of divorce upon the husband, the Act as it was originally framed did not in terms deprive him of his rights as a Mahomedan to divorce his wife by talak, and ought not to be treated as having done so by implication. Under Section 10 of the Act a wife may present a petition for divorce upon the grounds ( among others) that her husband has been guilty of bigamy with adultery, or of marriage with another woman with adultery. The Act, therefore, appears to contemplate that by his personal law a man who in India marries a Christian wife may marry another, and the Christian wife is for this reason given the right to petition for a divorce in such an event. A Mahomedan who married a kitabia, that is, a Jewess or a Christian, could always divorce her by talak, and he can do so still. A marriage between a Mahomedan and a Christian woman must of course be solemnised in India in accordance with the provisions of Act XV of 1872, or the marriage would be void. But it is a marriage recognised by Mahomedan law, by which no particular form of marriage is required, and it is not a monogamous marriage, and in dealing with the status of the parties and the rights and obligations arising out of the marriage, the Courts in India will apply the personal law of the Mahomedan husband. They will equally apply that law to a marriage between a Mahomedan and a Christian woman celebrated in Scotland, and will hold that the husband has a right to divorce by talak.

Again, at p. 499 of the same volume, in dealing with the question of talak, it is said:

The iddat of a free woman, Moslemah or kitabia, is three full terms, but of one who is too young or too old three months, counted by days; in other words, ninety days.

I think it is clear from these passages that in the opinion of the author a Mahomedan could divorce a kitdbia by talak. It may well be that the husband's right of pronouncing talak against a Christian wife was taken away when the principles upon which the Courts in England would act became applicable in India to a Christian wife, but if a Christian wife renounces Christianity by adopting another religion, as the petitioner did in this case, those grounds and that procedure cease to apply as between her and her Mahomedan husband, and I can see no reason why his personal law should not then apply to the marriage. Otherwise, no system of law would apply as regards divorce, and the marriage tie would remain indissoluble.