:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FAMILY FAMILY FAMILY COURT APPEAL NO. 3 OF 2000. COURT APPEAL NO. 3 OF 2000. COURT APPEAL NO. 3 OF 2000. Shehnaz Mudbhatkal ) residing at A/702 Milton ) Apartments, Juhu Koliwada ) Lane, Santacruz (West), ) Mumbai - 400 049. )..Appellant. (Petitioner in M.J.Petition) VERSUS. Arvind Ramkrishna ) Mudbhatkal of Mumbai, ) Indian Inhabitant, ) presently residing at ) A/702 Milton Apartments, ) Juhu Koliwada, Santacruz ) (West), Mumbai - 400 049. )..Respondent. (Respondent in M.J.Petition) ... Appellant in person Mr.Pankaj Bhatt, for the respondent. CORAL: CORAL: CORAL: S. B. MHASE & S. B. MHASE & S. B. MHASE & R. R. R. S. MOHITE, JJ. S. MOHITE, JJ. S. MOHITE, JJ. DATE DATE DATE : DECEMBER 23, 2004. : DECEMBER 23, 2004. : DECEMBER 23, 2004. ORAL ORAL ORAL JUDGMENT (Per S.B.MHASE,J.) JUDGMENT (Per S.B.MHASE,J.) JUDGMENT (Per S.B.MHASE,J.) 1. This Family Court Appeal is directed against the judgment and decree passed in Petition No. 1945 of 1992 by the Family Court No. 2 at Bandra, Mumbai on 5th August 1999 whereby the petition filed by the appellant is dismissed. The appellant-wife (Hereinafter referred to as "the Petitioner") has filed Hindu Marriage Petition under Sections :2: :2: :2: 13(1)(i-a) and 13(1)(i-b) of the Hindu Marriage Act, 1955 (Hereinafter referred to, in short, as "the said Act.") against the Respondent- husband for divorce. Petitioner has also prayed for permanent alimoney, injunction in respect of flat where petitioner is residing along with her daughters etc. 2. Section 13(1)(i-a) is a ground for divorce for treating the petitioner with cruelty after solemnisation of the marriage. Section 13(1)(i-b) is a ground for divorce for deserting the Petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Thus, in the present case, the divorce was / is claimed by the Petitioner-wife on the ground of cruelty and desertion. However, in the present judgment we are not going to consider as to whether the Petitioner has proved the ground of cruelty and/or desertion as provided under section 13 of the said Act, because the petition filed by the Petitioner has been dismissed by the Family Court on the ground of maintainability of the petition. 3. Before we consider the factual matrix to the extent of the maintainability of the petition, as it was filed in the family court, we would like to state :3: :3: :3: that this petition has raised an important question of law in respect of the maintainability of the Hindu marriage petition by a non-Hindu under the said Act wherein the Respondent is also a non-Hindu. Since the issue was a crucial one and as the Petitioner was conducting the appeal in-person, we equally requested the Advocate General- Mr. V.A.Thorat to address the court. Accordingly, the learned Advocate General has also assisted us by addressing us with oral submissions and has equally put on record the written submissions in respect of the point involved in the present appeal. 4. The issue in respect of the maintainability of the present petition arises in the following factual matrix. We make it clear that we are not putting on record the pleadings of the parties thoroughly, as we have noticed that the pleadings are very lengthy and verbose. However, we are putting on record the material contentions raised by the husband and wife so as to adjudicate upon the point of maintainability of the Hindu Marriage Petition filed by the Petitioner in the family court. 5. The Petitioner is a Muslim by birth and the Respondent is a Hindu by birth. According to the :4: :4: :4: Petitioner-wife, the Respondent is a MBBS Doctor and in the year 1966 when the Petitioner was hardly of 15 years of age, she came in contact with the Respondent as the Respondent was attending the father of the Petitioner as he had suffered a paralytic stroke. The Respondent was visiting the house of the Petitioner. Taking the said opportunity, according to the Petitioner, the Respondent made physical and mental advances wooing the Petitioner. At that time, the Respondent was 29 years old. As a result of which, love developed between them. The Petitioner has further alleged that her marriage was settled with one Mr.Vijay by the family members. However, the Respondent agreed to marry with her and persuaded her to break the said marriage. At that time, the Petitioner was 20 years old. However, after the engagement had broken, according to the Petitioner, the Respondent refused to marry her and insisted that the Petitioner shall accept the job as an airhostess with the Indian Airlines. Accordingly, the Petitioner had accepted the job as an airhostess in December 1971. While working as an air-hostess, the Petitioner realised that the Respondent is behind her money and that the Respondent is playing with her feelings. The Petitioner states that during the period 1972-73, the Petitioner had two pregnancies from the Respondent :5: :5: :5: which were terminated by Doctor Nagpal, a friend and colleague of the Respondent at a private hospital. The Petitioner further stated that finally the Respondent agreed to marry, however, put a condition that the Petitioner shall take up a job with Hotel Centaur as a Front Office Receptionist to make good the loss of her job with the Indian Airlines, secondly the Petitioner shall get converted to Hindu religion. The Petitioner has stated that she gave up the job with the Indian Airlines and accepted the job with Hotel Centaur in August 1975. On 9th November 1975, the Petitioner was converted as Hindu by carrying out the conversion ceremony at Masurashram under the guidance of the senior priest of the said Ashram - Bramhachari Vishwanathji. Her name was changed from "Shehnaz" to "Mrualini". Thereafter on the same day, i.e., on 9.11.1975 Petitioner married with the Respondent according to the Hindu rites at Mumbai at the said Masurashram where the conversion had taken place. Thereafter, the Petitioner resided and co-habitated with the Respondent at 93/D, Doctors’ Quarters, Delisle Road, Bombay for three years along with the mother of the Respondent. Out of this wed-lock, the Petitioner and the Respondent are having two daughters. The elder daughter - Soniya was born on 9th December 1976 and younger daughter Shahazia was :6: :6: :6: born on 15th October 1980. 6. The Petitioner has averred that within few months of the marriage Petitioner found that the Respondent has lost interest in the marriage and the Respondent was already involved with another lady doctor Kanta Mancharamabi since his medical college days who had jilted the Respondent for someone better, but had maintained the relations with the Respondent. As a result of the conduct of the Respondent, the Petitioner states that the Petitioner was drawn back to her religion by birth and since 1977 or thereabout the Petitioner actively practiced the tenets of the Islamic faith. 7. According to the Petitioner, in the year 1978 she has taken the job with Saudi Arabian Airlines so as to meet the increased financial burden of the family. In the year 1982, the Saudi Arabian Delegation had come to India to recruit the doctors. The Respondent compelled the Petitioner to have a communications and pursuations with the officers of the said delegations to secure a job for the Respondent as a doctor in the Saudi Arabia. The Petitioner has claimed that as a result of her efforts even though the Respondent was not eligible for such :7: :7: :7: appointment, Respondent was appointed on 12.3.1983 at King Fahd Hospital, Gizan, Saudi Arabia. However, Respondent did not allow the Petitioner to give up the job with the Saudi Arabian Airlines so that Petitioner can join the Respondent at Saudi Arabia. The Petitioner has further averred that in order to overcome the incompetency of the Respondent, the Respondent went to the extent of fraudulently converting himself into a Muslim and compelled the Petitioner to perform a Muslim marriage (Nikah) with the Respondent so that the Respondent would get a better treatment in a Muslim country. The Petitioner has stated that although the Respondent performed Nikah in the year 1982, the Respondent persuaded the Kazi in giving a back dated certificate. The Petitioner has stated that the Nikahnama and the certificate which are produced along with the petition are back dated one and the said Muslim marriage was a mock marriage and hence was not registered. Petitioner claims that the said Muslim marriage is of no legal effect and does not affect the marriage of the Petitioner and Respondent performed according to the the Hindu rites in the year 1975 and the said marriage was/is still valid and subsisting. Petitioner claimed that the said Muslim marriage was not a bonafide one and that the Respondent’s interest :8: :8: :8: was to get a job. Petitioner further stated that the Respondent continued to be a Hindu inasmuch as Respondent observes Hindu customs, goes to Hindu temples and practices Hindu religion. Petitioner has stated that the Respondent has never practised Islamic faith and has no belief in the prophet; the said conversion was not, therefore, conversion in the eyes of law. . The Petitioner returned from Saudi Arabia in February 1992 and thereafter the dispute between the parties commenced. 8. In reply to this, the Respondent has stated in his Written Statement that it is true that the Petitioner underwent a form of conversion to Hinduism on 9th November 1975 and the marriage took place according to the Hindu Vedic rites. However, Respondent further claims that the Petitioner did not believe in the Hinduism and the said conversion was undergone by her only with a view to enable her to marry the Respondent who was then Hindu. Respondent further stated that the parties realised that the said marriage was null and void in view of the fact that the Petitioner continued to practice the Islam and offered Kurbani and Bakari-Id regularly. Respondent :9: :9: :9: further pointed out how the Petitioner continued to be a Muslim from the year 1978 onwards. The Respondent has further stated that, due to his association with the Petitioner for several years, Respondent had been inclined towards the Islamic faith and therefore two days later to their Hindu marriage, i.e., on 11.11.1975, the Petitioner reconverted and the Respondent converted himself to the Islamic faith out of his own free will and a Nikah ceremony according to the Islamic rites was performed. The Respondent stated that the Petitioner has admitted to have undergone the nikah ceremony after conversion to the Islam. The Petitioner practices the tenets of the Islam and never practiced the Hindu religion for a single day, except for conversion and marriage which according to her was demanded by the Respondent. Respondent has submitted that the Petitioner did not believe in Hinduism and the said conversion was undergone by her only with a view to enable her to marry the Respondent who was then Hindu. Respondent has further stated that the parties herein were advised, in view of the above state of affairs and since there was no provision for conversion of a person actively professing the Islamic religion and continued to do so, to Hinduism under the conventional and orthodox Hindu dharma, the ceremony preformed on :10: :10: :10: 9.11.1975 according to the Vedic rites was invalid and the marriage performed between the parties was non-est and nullity in the eyes of law. Respondent has admitted that prior to 1975 the parties herein came to know each other and after a long courtship, decided to marry each other. Then Respondent has pointed out how while in Saudi Arabian Airlines the Petitioner has shown herself to be a Muslim. . The Respondent has denied that the father of the Petitioner was treated by him but Respondent has admitted that in the year 1966 the Respondent was working in the Railway Hospital at Bulsar(Gujrat) and has stated that the father of the Petitioner was treated by Doctor Siddique from the Railway Hospital. Respondent has pleaded that later on when the Petitioner came to know the Respondent, it was the Petitioner who used to pursue the Respondent (him) as the Respondent was an eligible batchelor and highly qualified whereas the Petitioner and her family were not much educated and financially unstable. The Respondent has denied that the Respondent has made physical and mental advances towards the Petitioner while the Petitioner was 15 years of age. The Respondent further denied that the Petitioner exploited the feelings of the Petitioner. The :11: :11: :11: Respondent stated that the Petitioner got call from the Indian Airlines and the Petitioner opted for the said job rather than to marry the boy of her family’s choice. The Respondent has denied that in the year 1972-73 the Petitioner had two pregnancies from the Respondent and that Dr. Nagpal being railway doctor and General surgeon and colleague of the Respondent, terminated the said pregnancies. The Respondent has denied that the Respondent did not marry the Petitioner as he did not want to loose so called well-paid job with the Indian Airlines. . He has further stated that the Petitioner had told that Captain Dhillan was to take action against her for irregularities committed by her and for smuggling. Therefore, the Petitioner decided that before such an action was taken against her, the Petitioner should resign and accordingly she resigned her job from the Indian Airlines and not at the instance of the Respondent. The Respondent has further pleaded that there was no question of the Petitioner drawing back to the religion by birth since 1977. The Respondent submitted that except for undergoing the formality of conversion on 9.11.1975 the Petitioner has before the said date and even thereafter always been a Muslim and has been actively :12: :12: :12: practising the tenets of the Islamic faith. The Respondent has further pleaded that since the time of their marriage, i.e. 11.11.1975, according to the Islamic rites, the Petitioner and the Respondent have been both Muslim by religion and actively practising the Islamic religion. . The Respondent has further stated that he was appointed as a Doctor in the Saudi Arabia and left for the Saudi Arabia in the March 1983 but the Respondent has denied that at the intervention, persuasion and the contacts of the Petitioner, the Respondent was appointed in the Saudi Arabia. The Respondent has denied that the Respondent was not qaulified for the said post. The Respondent has claimed that the Respondent was a graduate and had qualifications and experience and, therefore, the Respondent was selected on merit. The Respondent has denied that in order to overcome his incompetency, the Respondent went to the extent of fraudulently converting himself into a Muslim or that the Respondent compelled the Petitioner to perform Muslim marriage with the Respondent. The Respondent has reiterated the story of the conversion and of Nikah. The Respondent has specifically denied that the Nikah was performed in the year 1982 or that the Respondent :13: :13: :13: persuaded the Kazi to issue a back dated certificate and stated that if back dated certificates were to be prepared the Petitioner would not have signed those documents. The Respondent denied that the Muslim marriage is a mock marriage and, therefore, was not registered one. 9. From the above pleadings of the parties, following facts can be deducted: (a) That, the Petitioner was a Muslim by birth and was converted to Hinduism on 9th November 1975. (b) That, on 9th November 1975 the marriage of the Petitioner and the Respondent was preformed at Masurashram, Mumbai by the Hindu priest according to the Hindu rites. (c) That, the parties were acquainted to each other since about 1966. The Respondent was appointed as a Doctor in 1966 at Bulsar, (Gujrat) where the father of the Petitioner was working in the Indian Railways. That the father of the :14: :14: :14: Petitioner had suffered a paralytic stroke. (However, the Respondent had denied that he had treated the father of the Petitioner.) (d) That the Petitioner and the Respondent were known to each other and had love. Even though it is disputed that as to who has taken a active role in developing the said relationship. (e) That, the marriage of the Petitioner was settled with another person by the family members and it was broken. At that time, the Petitioner had received a call from the Indian Airlines and in this respect, the Petitioner had a consultation and advice with the Respondent. (f) That, the Petitioner gave up her job with the Indian airlines prior to her marriage in August 1975 and joined the services with the Hotel Centaur as a front Office Receptionist. (g) That, in the year 1978 the Petitioner :15: :15: :15: joined the Saudi Arabian Airlines. (h) That in the year 1982 there was a Health Delegation from the Saudi Arabia for the recruitment of the doctors and that the Respondent was appointed as a doctor in King Fahd Hospital, Gizyan; since March 1983 till he returned back 1992. (i) That, the Petitioner was reconverted to Islamic religion ( as to whether since March 1982 or from 11th November 1975 being a disputed fact.) (j) That, the Petitioner and the Respondent both have performed the marriage according to the Muslim law (i.e., Nikah) (However, as to whether the said marriage was performed on 11th November 1975 or in the year 1982 or thereabout is disputed; as according to the Petitioner - wife, the documents in respect of the conversion of the Respondent to the Muslim religion and Nikah were prepared ante-dated. As against this, according to the Respondent-husband those documents :16: :16: :16: were not ante-dated but the said conversion and marriage had taken place on 11th November 1975 only,i.e., two days after the celebration of the Hindu marriage. (k) That, on the date of the presentation of the petition, both, Petitioner and Respondent are admittedly Muslims. 10. The Respondent has raised objection in respect of jurisdiction of the family court on the ground that the parties to the petition are Muslim and both have been following the Muslim religion since 11th November 1975. Therefore, the marriage petition, as filed under the said Act, is not maintainable. The family court has accepted the contention of the Respondent that the parties are Muslim on the date of the presentation of the petition. The court has further observed that as a result of the performance of the nikah (Muslim marriage) by the parties subsequent to the Hindu marriage, the Hindu marriage has evaporated, because not-existant does not require any declaration of dissolution. The Family Court have also recorded a finding that Hindu marriage performed between the Petitioner and Respondent is null and void :17: :17: :17: as the conversion of Petitioner to Hinduism was formal and was not genuine. Therefore, following questions arise for our consideration. 1. Whether the Petitioner was converted to Hinduism on 9.11.1975 or thereabout and that the said conversion is genuine and bonafide one ? 2. Whether the Petitioner and Respondent have performed their marriage according to the Hindu rites and rituals ? 3. Whether the Hindu marriage performed between the present Petitioner and Respondent is valid one ? 4. Whether the Petitioner and Respondent were reconverted and converted to Mahomedanism on 11.11.1975 and got married according to the Muslim law, i.e., performed the Nikah ? :18: :18: :18: 5. Whether the Petitioner and Respondent both got reconverted and converted to the Mahomedanism and performed their marriage according to Muslim law, namely, nikah in the year 1982-83 ? 6. Whether the document of conversion of the Respondent to Mahomedanism and performance of the marriage according to the Islamic rites are ante-dated and thereby it is a mock or sham document ? 7. What is the effect of the Nikah which was performed after the performance of the Hindu marriage (i.e., two days after the performance of the Hindu marriage as alleged by the Respondent; and/or in the year 1982 to secure a job in a Muslim country as alleged by the Petitioner - wife) on Hindu marriage preformed on 9.11.1975 ? :19: :19: :19: 8. Whether the Hindu marriage petition as filed by the Petitioner for dissolution of the marriage and permanent alimony and claim for injunction in respect of the matrimonial home is maintainable ? 11. Since it is an admitted fact that the Petitioner was a Muslim by birth and the Respondent is a Hindu by birth, the marriage between the Petitioner and Respondent would not be valid unless both are Hindus, as required under section 5 of the said Act. Section 5 states that "A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled." Thereby, it contemplates that on the date of performance of the marriage, the parties must be Hindus. Section 2(3) of the said Act enumerates the persons who are "Hindu". Section 2(3) is as follows: "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 :20: :20: :20: contained in this section" . In sub-Section (1) of Section 2, it is stated as to whom this Act applies. In sub-section (2) of Section 2, it is made clear that "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." . In the result, even if any person is covered under sub-section (1) of Section 2, but if he happens to be a member of the Scheduled Tribe within the meaning of Clause (25) of the Article 366 of the Constitution of India, the Act will not apply to such a person unless the Central Government, by the notification in the official gazette, otherwise directs, that means makes the Act applicable either wholly or for a limited purpose. . Clauses (a) and (b) of sub-section (1) of Section 2 are not much relevant for our discussion. However, clause (c) of sub-section (1) of Section 2 is relevant for our purpose, which reads as under: :21: :21: :21: 2. APPLICATION OF ACT: (1) This Act applies- (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of 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 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 Sikhs by religion, as the case may be:- (a)..... (b)...... (c) (c) (c) any any any person who is a convert person who is a convert person who is a convert or or or re-convert to the Hindu, re-convert to the Hindu, re-convert to the Hindu, Buddhist, Buddhist, Buddhist, Jaina or Sikh Jaina or Sikh Jaina or Sikh religion." religion." religion." 12. From the above, it can be safely stated that the persons who are Muslim, Christian, Parsi or Jew by religion are not covered under the Hindu Marriage Act. However, it can be said that the Act applies to the Hindus wherein a Virashaiva, a Lingayat or a follower of the Brahmo