1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 41 OF 2008 Leena Bootawala w/o Mr.Alisagar ) alias Salim Mahammedi Bootawala ) Indian Inhabitant, Age 44 years, ) Occ.: Housewife, R/at 705, Bridge ) View, Byculla, Mumbai – 400 027, at ) present r/at C/o. Hatini Apts., ) Flat No.4, 1st Floor, 26, Gunpowder ) Road, Mazgaon, Mumbai-400 010. ) ... .... Appellant. Versus Alisagar alias Salim Mohammad ) Bootwala, Indian Inhabitant, ) Age-49 years, Occ.Business, ) Residing at 705, Bridge View, ) Byculla, Mumbai-400 027. )... .... Respondent. Ms. Seema Sarnaik for the Appellant. Ms. Mrunalini Deshmukh with Smt.Latika Zaware for the Respondent. CORAM : BILAL NAZKI, J. RESERVED ON: 3RD DECEMBER, 2008. PRONOUNCED ON : 19TH JANUARY, 2009. (In Chamber at 5.00 p.m.) JUDGMENT : The controversy in short for this reference: The parties in appeal solemnised their marriage on 1st February, 1988 2 under the Special Marriages Act. It is contended by the appellant that since the parents of both the parties were not in favour of their marriage, without their consent they registered their marriage under the Special Marriage Act on 1st February, 1988. But after solemnisation of this marriage, their parents agreed and a nikah was performed subsequently on 9th March, 1988. Both the parties belong to “Dawoodi Bohra” community. The appellant contended that they were governed by Muslim Laws as far as their marriages were concerned. Since they belong to a community, where they attach much importance to the matters of community, it is submitted by the appellant that her husband, the respondent herein, told her that his father did not like that the marriage had taken place in terms of the Special Marriage Act, 1954. Therefore, the Court was approached and a decree of divorce by mutual consent was obtained dissolving the marriage under the Special Marriage Act. She also contended that it was an understanding between the parties that even after annulment of the marriage under the Special Marriage Act, the marriage still subsists as there had been a valid nikah and nikahnama had been registered before the Registrar of Marriages under the Bombay Registration of Marriage Act, 1953. 2. The appellant approached the Family Court in terms of Section 7(1)(b) 3 of the Family Courts Act for seeking declaration that the appellant was the legally wedded wife of the respondent. She also sought declaration for setting aside of the mutual consent decree granted under the Special Marriage Act. The learned Family Court refused to grant any relief on the ground that since there was no relation of husband and wife because of the Decree of Divorce, it has no jurisdiction. Against the said order, the Appellant filed the present appeal in this Court. The matter was heard by the Division Bench of this Court. The two learned Judges of this Court disagreed in their opinion and conclusions and passed the following order: "As we have differed in our views in this appeal, the Registrar (Judicial) is directed to place the papers before the Honourable Chief Justice for assigning this appeal to a third Honourable Judge of this Court.” 3. In this background, this appeal has come before me. I have heard the learned Counsel appearing for the parties at length and have gone through the record of this case. 4. Before coming to the contentions raised, it will be profitable to mention the reliefs which were claimed by the appellant in her application under Section 7(1) of the Family Courts Act before the Family Court. She sought a declaration that the appellant was the legally wedded wife of the 4 respondent. The second relief claimed was a declaration that the nikah performed between the parties was valid and binding. The third relief claimed was that the decree of divorce dated 9th October, 1997 was obtained by fraud. The respondent contested the application and the trial Court framed the following issues. Sr.No. Issues 1) Whether the decree passed in AA-335/1997 dissolving their marriage by consent is liable to be set aside? 2) Whether the petitioner is entitled for declaration that their marriage is legal and valid? 3) Does he prove that the petition is not tenable ? 4) Whether the petition is barred by Limitation? 5) What order and decree. ? The findings about the Issue Nos.1 and 2 were that, “these issues do not survive”. The Issue Nos.3 and 4 were held in favour of the respondent. 5. Now a look at the judgment of the Family Court. After narrating the respective contentions of the parties, the Family Court noted that the appellant had filed a proceeding for divorce under Section 2 of the Dissolution of Muslim Women's Marriages Act, 1939 bearing Petition No. A- 1300 of 2006 and also for maintenance. On 24th August, 2006 she filed an application for withdrawal as she wanted to challenge the decree of divorce. 5 It was contended by the learned counsel for the respondent before the trial Court that the decree has not been challenged till date. The reason given by the learned Judge to come to the conclusion are found in paragraphs 17 and 18, which read as under: "17. If for a while it is presumed that force or pressure was brought on her for divorce under the Special Marriage Act, then it can be said that she had to approach the Court within a period of three years for declaratory relief. But, it can be said that she did not appear before the Court after 3 years on passing a decree of divorce. It can be said that a decree was passed by the Court when the Court was satisfied after a period of six months and therefore in such circumstances it can be said her petition as styled is not tenable. 18. The Counsel for the respondent has argued that this Court is not having any jurisdiction to decide the petition as their status is not as husband and wife. It can be said that their marriage is already dissolved and as per Section 7 of the Family Courts Act they are not husband and wife. In such circumstances, her petition is not tenable. It is also barred by the Law of Limitation and therefore I answer Issue Nos.3 and 4 in the affirmative and Issue Nos.1 and 2 do not survive.” 6. The relief for declaring a divorce by mutual consent was nullity, was refused on the ground that the matter was not brought before the Court within the period of limitation and the relief of declaration that the appellant continued to be the wife of the respondent was declined on the ground that the marriage had been dissolved as per Section 7 of the Family Courts Act and as the parties were not husband and wife the Family Court had no 6 jurisdiction to decide the matter. 7. Before going to the other Issues, let us have a look of the Family Courts Act. Section 7 lays down the jurisdiction of the Family Court and its explanation has been given the following types of proceedings can be entertained by the Family Court : "7. Jurisdiction,- (1) Subject to the other provisions of this Act, a Family Court shall --- (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.” The explanation to this section would make it clear that a suit or a proceeding with regard to matrimonial status of any person can be entertained by the Family Court. Therefore, if a prayer for declaration was made that the appellant continued to be the wife of the respondent, which was denied by the respondent, the matter had to be decided on merits. On this short ground the appeal can be allowed and the Family Court can be directed to hear the matter on merits. 7 8. Now coming to the controversy and disagreement between the two learned Judges of this Court, which basically concerns the following question:- "Does the marriage stand dissolved on dissolution under Special Marriage Act, if the parties had also married under their Personal Law, without a dissolution or divorce under Personal Law? The learned Judges have disagreed on this question. Whereas Shri Justice B. H. Marlapalle was of the view that if a marriage is performed under the Special Marriage Act and also under the Personal Law and the marriage is dissolved under the Special Marriage Act the bond of marriage does not subsist. Whereas this view was not agreed to by Shri Justice D. B. Bhosale. 9. I am of the view that if this question is decided at this stage nothing will remain to be decided by the Family Court and for establishing that a marriage subsisted even after a divorce under the Special Marriage Act, would be a matter where the evidence will have to be led as the appellant has contended that the marriage continued even after the decree of divorce under the Special Marriage Act and she lives along with her husband as his wife and the husband also very well projected her as his wife and even it is 8 reflected in the documents. One of the contention raised, which has been accepted by one of the learned Judge, is that if it is accepted that even after dissolution of marriage under the Special Marriage Act the parties had performed marriage under the personal law it would subsist, then there would be an anomaly and there would be no ending process of getting the marriage dissolved. One of the learned Judge has given an example that if a Muslim marries a Hindu, have their marriage registered under the Special Marriage Act and then perform marriage under the Muslim Personal Law as well as Hindu Law, would they be forced to go for three divorces. This example can be given in alternative as well. If there is a nikah between the parties under the Muslim Personal Law and also a marriage under the Special Marriage Act and if “Talak” is pronounced by the husband, by mere declaration, would that annul the marriage under the Special Marriage Act also. Therefore, these are the questions which need to be decided in a trial. 10. Suffice it to say that it is well established that under the Muslim Laws no ceremonies are necessary for the marriage to be performed. The requirement of the marriage is merely consent of the adult persons, which is commonly known as “offer” and “acceptance”. If a person offers herself or himself in marriage and other side accepts it, the marriage is complete. 9 Therefore, it will have to be seen as to what relation remained between the parties after the divorce under the Special Marriage Act because no party denies that they are Muslim by faith and they are governed by Muslim Personal Law. 11. In view of the above, the appeal is allowed. The Family Court is directed to hear the matter on merits without being influenced by any of the observations made by this Court or by the Family Court on the earlier occasion. Sd/- (BILAL NAZKI, J.) 10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 80 OF 2008 AND CIVIL APPLICATION NO. 297 OF 2008 IN FAMILY COURT APPEAL NO. 41 OF 2008 Leena Bootwala ... ... ... Applicant. Versus Alisagar @ Salim Mohamed Bootwala. .... Respondent. None present for the parties. CORAM : BILAL NAZKI, J. DATED : 19TH JANUARY, 2009. (In Chamber at 5.00 p.m.) P.C. : Since the matter is directed to be heard by the Family Court on merits, no further orders are necessary to be passed on these applications and the same are disposed of as such. Sd/- (BILAL NAZKI, J.)