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Mohammed Zulfiquar Ali v/s Anuradha Reddy

    C.R.P. Appeal No. 2720 of 1981
    Decided On, 11 July 1985
    At, High Court of Andhra Pradesh
    By, THE HONOURABLE MR. JUSTICE SRIRAMULU
    For the Appearing Parties: Mirza Munavar Ali Baig, Advocate.


Judgment Text
SRIRAMULU, J.


(1) THE revision petitioner herein laid the suit 0 S No 217/79 on the file of District Munsif's Court, Giddalur for a declaration that after he got himself converted to Islam from Hinduism on 13-10-1978, he ceased to be the husband of his wife, the defendant-respondent herein.


(2) THE case of the petitioner was that the petitioner and the respondent herein were Hindus at the time of their marriage and their marriage was performed according to the Hindu rites and ceremonies at Tirumala in Chittoor district on 8-7-1976 Thereafter, while he was working at Cumbam the petitioner voluntarily embraced Islam on 13-10-1978 and changed his name from Nare Vijaya kumar Reddv as Mohammed Zulfiquar aii he continued to lead his life in accordance with Islamic traditions and principles and inspite of his best efforts to get the respondent also into the Islamic fold, the respondent turned down his officer Hence he has filed the suit for declaration that he is not the husband of the defendant and that his marriage with the defendant stood dissolved the moment he renounced his religion of his birth i. e , Hinduism.


(3) THE defendant-respondent here in denied the allegation in the plaint and contended inter alia that the petitioner and the defendant at the time of the marriage were Hindus, that their marriage was performed according to hindu rites and ceremonies at Tirumala, on 8-7-1976, that the conversion of a hindu to Islam will not automatically dissolve the marriage and that the petitioner cannot take advantage of his own wrong, that he is not entitled for a decree for declaration that he ceased to be the husband of the respondent herein from the date of his conversion on 13-10-1978 and that the marriage stood dissolved the moment he renounced Hinduism, the religion of his birth.


(4) THE legal objection raised by the respondent herein was tried as a preliminary issue at the instance both the parties advancing legal arguments and without adducing any evidence. Both the Courts below held that the court has no jurisdiction to entertain a suit for declaration that the petitioner ceased to be the husband of the defendant-respondent herein the moment he got himself converted to Islam on 13-10-1978 and that further declaration that the marriage between the petitioner and the defendant stood dissolved the moment the plaintiff renounced the religion of his birth and embraced Islam on 13-10-1978. Hence, the plaintiff's suit before the trial Court and the appeal before the lower appellate court were dismissed.


(5) IN this appeal, the only contention urged by Sri Mirza Munawwar ali Baig, the learned counsel for the revision petitioner is that both the Courts erred in law in holding that they have no jurisdiction to try and pass a declaratory decree as prayed for in the petition.


(6) IT is not in dispute that both the petitioner and the. respondent herein were hindus at the time of their marriage and their marriage was performed according to Hindu rites and ceremonies at Tirumala on 8-7-1976 and it is only 13-10-1978 the petitioner herein alleged to have embraced Islam.


(7) THE contention of the petitioner is that the moment he embraced islam he ceases to a Hindu hence he ceases to be the husband of the defendant respondent herein and as such he is entitled for a declaration that the marriage between the parties which took place according to Hindu rites and ceremonies on 8-7-1976 stood dissolved with effect from 13-10-1978.


(8) IN support of his contention, the learned counsel for the petitioner relied upon a decision in John Jiban chandra Dutta vs. Abinash Chandra Sen (1) Indian Cases Vol. 183 (1939) Cal. 75.


(9) THAT was a case where, a man named Dukhiram, an Indian Christian, married an Indian Christian woman named sudakhina. He was subsequently converted to Muhammadanism and contracted a marriage with a Mohammadan woman named Alfatannessa. The question in that decision was whether an Indian Christian who becomes converted to muhmmadanism can take a second wife. It was held in that, case that under the Muhammadan Law where a christian emoraces Islam, he acquires all the rights which a Muhammadan possess and can contract a valid marriage even though the first one with the Christian wife subsists. If the first marriage were co. itraoted in England under English forms, during its suosistance the second marriage would be regarded as nullity. If however, an Indian Christian domiciled in India marries an Indian christian woman domiciled in india and subsequently becomes converted to Islam, his second marriage with a Muhammadan woman is legal and his marriage with the Christian wife still subsists. "


(10) IN my view, this case instead of supporting the contention of the learned counsel for the petitioner it support the defence put forward by the respondent herein to the effect that mere conversion of the petitioner to Mohamdanism does not ipso facto dissolve the marriage between the petitioner and the respondent which took place according to Hindu rites and ceremonies while both of them were Hindus.


(11) MULLA in his principle of mohamedan Law Sixteenth Edition, chapter II in section 20 refers to number of cases and observed thus:"the conversion of a Hindu wife to Mahomedanism does not ipso facto dissolve her marriage with her husband. She cannot, therefore, during his lifetime, enter into a valid contract of marriage with any other person. Thus if she, after conversion to Mohomedanism, goes through a ceremony of marriage with a mahomedan, she will be guilty of bigamy under section 494 of the I P C (Vide govt. of Bombay vs. Ganga (1880) 4 Bom. 330 ; in Skinner vs. Orde (Vide (1871) 14 moo. I. A. 309)a Christian man, married to a Christian wife, declared himself a mahomedan. and went through a ceremony of marriage with another woman. The Privy Council agreed with the High court in thinking that the marriage was of doubtful validity. "


(12) IT is not in dispute that the marriage of the petitioner and the respon- dant, while they were Hindus, took place according to Hindu rites and ceremonies and the provisions of the Hindu Marriage act, 1955 were applicable to them at the time of their marriage.


(13) THE Hindu Marriage Act, 1955 applies only to the marriages between spouses both of whom are Hindus. If one of them alone is a Hindu, the Act has no application. The Act has adopted for this purpose an artificial field of application of the law to include certain communities within the applicability of the Act irrespective of the fact that they are not Hindus. The expression "hindu" has a special definition and it includes a person described as where the living or domisiled in India who is not a Muslim, christian, Parsi or Jew by religion, whatever other religion he may have or may not have unless it is shown that he is not governed by Hindu Law or a custom or usage which is part of that law. Section 2 of the Act lays down thus : s. 2 (1) the Act applies: (a) to any person who is a hindu by leligion in any of its forms or developments, including a Virashiva, a lingayat or a follower or the Brahmo, prarthana or Arya Samaj : (b) to any person who is a buddhist, Jaina or Sikh by religion; and (c) to any other person domiciled in the territories to which this Act extends, who is not a Muslim Christian, parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed : explanation :- The following persons are Hindus, Buddhists, Jainas or sikh by religion, as the case may be : - (a) any child, legitimate, or illegitimate, both of whose parents are hindus, Buddhists, Jainas or Sikhs by religion : (b) any child, legitimate or illegitimate one of whose parents is a hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged ; and (c) any person who is convert or re-convert to the Hindu, Buddhist, jaina or Sikh religion. (2) Notwithstanding anything contained in sub-section (1) nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of-Clause (25) of Article 366 of the Constitution unless - the central Government, by notification in the - Official Gazette, otherwise directs. (3) The expression 'hindu' in any portion of this Act shall be construed as if it included a person who, though not a hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section. Section 13 of the Hindu Marriage act, 1955 provided for legal dissolution of marriage. So long as such divorce has not been obtained by one of the two parties on presentation of a petition from a competent Court the marriage subsists and a second marriage cannot be contracted. (Ishwar Singh vs. Hukam Kaur, 1965 All. 494 (F B)) sub-section (1) of section 13 lays down that "any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party (ii) has ceased to be Hindu by conversion to another religion. "


(14) THIS provision is designed to enable a person to file a petition for a decree of divorce on the ground that the respondent has ceased to be a Hindu by conversion to another religion". N. R. Raghavachariar' Hindu Law, principles and Precedents (VII Edition vol II Sec. 13 (6) at p. 1036 stated the law thus : -"it must be distinctly understood that conversion to an alien faith does not ipso facto result in divorce of the converted spouse from the other spouse. A petition is necessary for the purpose. ""the reason is simple. In these days of cosmopolitan mixtures and alliances, a matrimonial alliance between persons belonging to different religion does not attract that approbrium as it once did and it is now not unusual to find spouses belonging to different religions living in harmony and affection though pursuing their own religious practices separately. So it is open to two persons who have been married under this Act to live together in spite of the fact that one of them has subsequently become a convert to Mohamedanism or Christianity without getting the marriage dissolved by a decree of divorce. This is oniy an enabling provision permitting either spouse to get the marriage bond sundered, and it is not a compulsory one leaving no option to either spousa but to become divorced from the other".


(15) MULLA in his principles of hindu Law - 15th Edition in his comments under section 13 (1) Clause (ii) observed that :-"there is no rule of Hindu law which forbids the subsistence of a marriage, 013 of the parties to which has ceased to be a Hindu. The marriage being indissoluble the rule was firmly established that conversion did not operate per se as a dissolution of marriage. " "the Hindu marriage under the Act is one solemnized between persons who are Hindus in the wide connotation of the term and the Legislature has now laid down that the conversion of one of the spouses to any other religion affords a ground to the other spouse to seek dissolution of the marriage. The Note to the Hindu Marriage and Divorce Bill stated : A change in religion is not inconsistent with the continuance of conjugal love and it should therefore not be permissible for a party to the marriage to get a divorce by changing his or her religion. The Right to get a divorce under this law is therefore given to the party who continues to be a Hindu (in the wide sense in which the term is used). "


(16) THE conversion in the present context implies that the person has voluntarily relinquished his relig. 'on and adopted another religion after formal ceremonial conversion. A Hindu does not cease to be a Hindu merely because he professes a theoretical allegiance to another faith, or is an ardent admirer and advocate of such religion and its practices. But if he abdicates his religion by a clear act or renunciation and adopts the other religion by undergoing formal conversion, he would cease to be a Hindu within the meaning of this clause. But it is well settled principle of matrimonial law tnat decrees of dissolution of marriage are to be made only upon strict proof. The court cannot pass a decree granting any relief under the Act in favour of a petitioner who is in any way taking advantage of his or her own wrong or disability for the purpose of such relief. The rule is based on the principle of justice that a wrongdoer should not be permitted to take advantage of his or her own wrong or disability while seeking relief at the hands of the court in any matrimonial proceeding. A right to get a divorce on the ground of change of religion is given to the party who continues to be a Hindu. The husband who ceases to be a Hindu by the date of the divorce petition is not entitled to divorce under section 13 (1) (ii) of the Act on the ground that he himself got converted from Hinduism to mohammedanism. The language of the section is very clear and it stated that, "on a petition presented by a spouse, either the husband or the wife for a decree of divorce on the ground that the other party has ceused to be a Hindu by conversion to another religion. It is quite apparent that the husband can file a petition against the wife only on the ground that she got herself converted from hinduism to any other religion and it is not open to the husband to invoke the provisions of section 13 of the Act and seek dissolution of the marriage on the ground of his own conversion from hinduism to any other religion.


(17) IN this case, the revision petitioner is not entitled to move a petition under sec. 13 of the Act against his wife, the respondent herein, for the dissolution of their marriage on the ground that he got himself converted from Hinduism to Mohammadanism. Thus, when there is a clear bar for the petitioner herein to invoke the provisions of section 13 seeking the relief of dissolution of marriage on the ground of his changing the religion and cannot seek relief under the Act taking advantage of his own wrong, it cannot be said that the petitioner is entitled for a decree of declaration that there is a dissolution of marriage between himself and the respondent herein merely on the ground that he got himself converted from Hinduism to mahomidanisrn before the date of the suit.


(18) AS already observed above, that there is no rule or Hindu law which forbids the subsistence of the marriage between the petitioner and the respondent inspite of the petitioner changing his Hindu religion to Mahomeddanism and the co oversion does not operate per se or ipso facto as a dissolution of a marriage. A change in religion is not inconsistent with the continuance of conjugal love and religion of the respondent and it should therefore not be permissible for the petitioner to seek a virtual dissolution of) marriage in the guise of a decree for declaration that he ceases to be the husband of the respondent herein the moment he got himself coaverted of Mohameda nism for Hinduism and that the respondent coased to be his wife. No doubt, it is open to the respondent to seek such relief under section 13 (1) (ii) of the Hindu Marriage Act for a dissolution of the marriage under the provisions of the Act, the petitioner changing his religion subsequent to the date of their marringo cannot seek such relief under the provisions of the Act. The declaration sought for in the plaint is that the relationship of husband and w

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ife came to a termination the moment the revision petitioner got himself converted to Monameddanism and that the respondent ceased to be his wife. The frame of the suit is such that if the declaration sought by the revision petitioner is granted, it virtually amount to grant of a decree of divorce in terms of section 13 of the Hindu Marriage Act. (19) THUS, the petitioner seeks to secure such relief by way of a declaratory suit to which the petitioner is not entitled in law under section 13 of the Hindu marriage Act i:o claim a decree of divorce on the ground that change in religion from Hinduism to Mohammedanism. The revision petitioner wants to take advantage of his own actions. If the revision petitioner is permitted to have such a easy recourse to law and get relief of dissolution of the marriage by adopting a simple formula of changing his own religion and asking for a divorce against the wife, and such a course is permitted, every husband who feeis inconvenient to continue marital relationship with his wife, will have recourse to law for such a relief of dissolution of marriage. (20) THE intention of the Legislature is very clear from provisions of section 13 of tne Hindu Marriage Act, that one of the spouse can seek dissolution of marriage on the ground not that he himself or she herself changed his or her religion but the respondent changed his or her religion. The discretionary grant of decree for declaration cannot be granted if such a decree purports to defeat the specific provisions of section 13 of the Hindu Marriage Act as in the present case. (21) FOR these reasons, I do not find any merits in this revision petition. Accordingly, the Civil Revision Petition is dismissed. No costs.
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