Eeia?s HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHA^MA AND HON'BLE MR. R.N. CHA RAKAR, JJ. APPELLANT: RESPONDENT: APPELLANT: RESPONDENT: First Appeal (M) No.47 of 2008^ Asfaq Qureshi Versus Aysha Qureshi (Nivedita Yadav) AND First Appeal (M) No.128 of 2008 Asfaq Qureshi Versus Aysha Qureshi (Nivedita Yadav) ^^ ^ JUDGMENT FOR CONSIDERAT20N HON'BLE MR. JUSTICE R.N. CHANDRAKAR °) ot_c^-T^eJ2— (J Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge Post for pronouncement of judament on 19th March,2010 Sd/- T.P. Sharma Judge N^ »N^ HIGH COURT OF CHHATTISGARH. BILASPUR DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA AND HON'BLE MR. R.N. CHANDRAKAR, JJ. APPELLANT/: (Defendant) RESPONDENT/: (Plaintiff) APPELLANT/: (Plaintiff) RESPONDENT/: (Defendant) First Appeal (M) No.47 of 2008 Asfaq Qureshi, S/o Abdul Salim Qureshi, aged about 26 years, R/o Near Kanhajyapuri, Kasarideeh, Durg, Tehsil & Distt. Durg (Chhattisgarh) Versus Aysha Qureshi (Nivedita Yadav) D/o Pramod Yadav, aged about 22 years, R/o Gayanagar, Durg, Tehsil & Distt. Durg (Chhattisgarh) AND First Appeal (M) No.128 of 2008 Asfaq Qureshi, S/o Abdul Salim Qureshi, aged about 26 years, R/o Near Kanhaiyapuri, Kasarideeh, Durg, Tehsil & Distt. Durg (Chhattisgarh) Versus Aysha Qureshi (Nivedita Yadav) D/o Pramod Yadav, aged about 22 years, R/o Gayanagar, Durg, Tehsil & Distt. Durg (Chhattisgarh) {First appeals under Section 19 ofthe Family Courts Act, 1984} Present: Mrs. Fouzia Mirza,Advocate for the appellant. Dr. N.K. Shukla, Senior Advocate with Mr. Shailendra Shukla, Advocate for the respondent. JUDGMENT (19InMarch,2010) The followina iudament ofthe Court was passed bv T.P. Sharma, J: - 1. F.A.(M)Nos.47/2008 & 128/2008 arising out of the common judgment & decree dated 6-2-2008 passed by the 2nd Additlonal Principal Judge, Family Court, Durg (for short 'the Family Court') in Civil Suit NOS.157A/2007 & 158A/2007 are being disposed of by this common judgment. 2. Vide F.A.(M)No.128/2008, the appellant has challenged legality & propriety of the judgment & decree dated 6-2-2008 passed by the Family Court in Civil Suit No.157A/2007 whereby the petition for restitution of conjugal rights filed by the appellant has been dismissed. 3. Vide F.A.(M)No.47/2008, the appellant has challenged legality & propriety of the judgment & decree dated 6-2-2008 passed by the Family Court in Civil Suit No.158A/2007 whereby the Family Court has decreed the suit, filed by the respondent against the appellant, for declaration of marriage void. 4. The appellant has challenged legality & propriety of the judgment & decree on the ground that the parties are Muslim legally wedded spouses, the Family Court was not having jurisdiction to entertain suit for declaration of marriage to be void under the provisions of the Hindu Marriage Act, 1955. The Family Court has also erred in holding that marriage has not been solemnized betwe.en the parties. 5. Brief facts necessary for the disposal of these appeals, as per pleadings of the parties in Civil Suit No.158A/2007, are that the respondent is a hlindu woman and never converted into Islam. The appellant is a member of Islam. The respondent was working as Shiksha Karmi at Village Badepurda and she used to travel from Durg to Litia Chowk by mini bus of Zia Travels. The appellant was working as Checker in Zia Travels. During the course oftravel, they came in contact. On 3-8-2006 while the respondent was travelling in the mini bus o.f Zia Travels, the appellant provided one chocolate of Dairy Milk to the respondent which she accepted and ate, and she became unconscious. In the evening the y respondent came back to her house. She used to travel by the same bus till 20-11-2006. On 22-11-2006, the appellant for the first time told the respondent that he has married her on 3-8-2006 at madarsa situate at Gandai and also showed the certificate relating to nikah. The appellant threatened her and compelled her for registration of marriage at Durg. He also showed photographs. Under duress, the respondent went with the appellant to the Offjce of Collector, Durg where 3-4 other persons were present. The appellant took signatures of the respondent on some papers and detained her till 3 p.m. The appellant also took some photographs of the respondent. On 22-11-2006, with a view to avoid to go to the Collectorate, Durg, the respondent went to Dhamdha to attend strike, but the appellant reached there at 2 p.m. by motorcycle and forcefully took her to the Marriage Officer at Durg who issued certificate of marriage. The respondent was under duress. Lastly, on 23-11-2006, she narrated the entire incident to her parents. She claims that she never converted into Islam and never consented for marriage with the appellant. The alleged marriage between the parties is void ab initio and the marriage certificate issued by the Marriage Officer is also void. On the aforesaid ground, suit for declaration 'of marriage & marriage certificate void was filed by the respondent under Section 34 of the Specific Relief Act, 1963 read with Sections 11 & 12 of the Hindu Marriage Act, 1955. 6. The appellant has denied the allegations made in the plaint and has specifically alleged that the respondent used to travel by Zia Travels and during the course of travel, the appellant & the respondent came in contact during which period their relation developed. The respondent used to send SMS and talk with the appellant from her mobile phone No.98279-20460 on his mobile phone Nos.93028-36432 & 94255-64469. Aofus ||IM Aeqi ^eqi p9aj6e peq sei^ied 'esjepeiu lepueo ie gooz-8-8 uo peujjojjsd SBM e6euje|/\| •Me| LU!|sn|/\| eqi jepun iue||9dde eqi. p ej.i/w peujeuj A||e68| si luepuodsej eqi ^eqi p969||e A||eoyp9ds seq iue||9dde 9L|1 "Me| LUj|Sn|/\| 9L|} JO |||A JQ}deqo jepun SIL|BU |e6nfuoo p uo^n^sej jo^ uonned p9|ij SBL| tue||9dde 941 'ZOOSA/ZQI-'ON tins I!A!O 9P!A '8 •PIOA ^ ||nu se eieoyiijeo 96eujeuj pue eeeujeuj jo uoiiBjepep jo^ iins eqi p9MO||e seq ijnoo AIILUBJ eqi 'seiijed e^ 01 6uueeL| p Aiiunpoddo 6uipjo^e jeye pue peujej.t 9J9M senssj 'siusujjeAe p sjseq eqi UQ •z •piOA eq 01 eBeujeLU jo uojiBjepep jo^ peil^ue IQU si aLjS 'ejojeje^ 'IUQSUOO eej^'jeq jepun iue||9dde eqi peujeLU peq eqs 'uoisjeAUOO jeq jeye pue A||nj||iM LUB|S| 0}W peiJOAUOO seq j|asj9L| luepuodsej eqi ieqi peBeiie A||eoyj09ds seq iue||9d.de eqi 'LUOLII 01 penssi SBM eieoyi^ieo UOHBJ1S168J pue P8J81S169J SBM 96eujeiu ejeqM eBeujeLu p uoiiejisiSej joj 9iejop9||oo 01 eqpujeqa LUOJJ. etueo eqs pue L|looq QIS LUOJ^ iue||8dde eqi po||eo a^s ajeqM LUOJJ 9>|!4S qijM uoipeuuoo ui eqptueqa }Q }U9S9jd SBM lU8pUOdS8J 9qi '900Z-\.\,-ZZ UQ '-isoyjO QBeujei/^ 9L|i Aq pexi^ SBM QOOZ-l.kZZ P 8leP lx9u Pue ©BeujeLUp uo!iej^S!68j joj uoiieoiidde peiuesejd seiijed eqi L|iog •86eujeLU jieqi p uoiiejisiBej joj 9iejop8||OQ eqi 01 IUSM iue||edde Q[J{} qiiM 6uo|e luepuodsej 941 '900Z-1.1--1-3 UQ "900Z-9-S ^ujS 8Bp9|MOU>| jeq uiqijM ||8M SBM iue||9dde 941 qijM luepuodsej 9L|i p eBeujeLU pue eSeujetu eqi 0}A^ed SBM ^uepuodsej eqi •eBeujeiu p uoiiejisiBej \\\} siuejed jeq 01 eBeujeLU jo unpe^ e^ LUJOJUI 01 ^ou peppep seq j|esj9L| luepuodsej eqi -lepueo }B p9LUJOJJ9d SBM lU9pUOdS9J 9^ ^ iue||9dde eqi ueeMieq 9Beuje|/\j •suosjed jeqio sjo^aq 'iue||9dde eqi qi!M eBeujeLU jo^ liAepi^e p9|y pue Lue|8| Q}W iiesjeq peijeAuoo eqs ejeqM iue||edde eqi q}i/v\ 6uo|e epiqeA oidjoos Aq lepueo 01 IUQM A||n^||iM ^esjeq eqs pue >|MOL(O uq9^oe>| jeeu iue||9dde Q^} 01 eiueo jiesjeq luepuodsej eqi '900Z-8-S "0 If^ IN* their marital life peacefully after registration of marriage. On 22-11-2006, marriage between the parties was registered, but even after registration of marriage, parents of the respondent are not permitting the respondent for discharging her marital obligations and have detained her. The respondent has filed petition for declaration of marriage null & void at the instance and under the pressure of her parents. The appellant is ready & willing to discharge his marital obligations. On the aforesaid basis, suit for restitution of conjugal rightswas filed on behalf of the appellant. 9. The respondent has denied the allegations and has specifically pleaded that she is Hindu, she has never converted into Islam and registration of Muslim marriage under the Hi'ndu Marriage Act, 1955 was not legally possible. She has already filed petition for declaration of marriage void. She has specifically pleaded that there was no mamage or lawful marriage between the parties and therefore, restitution of conjugal rights would not be legally permissible. 10.0n the basis of averments of the parties, issues were framed and after affording opportunity of hearing to'the parties, the Family Court by common judgment & decree dated 6-2-2008 passed in Civil Suit Nos.157A/2007 & 158A/2007, has dismissed the suit for restitution of conjugal rights and allowed the suit for declaration of marriage null & void. 11. We have heard learned counsel for the parties, perused the judgment & decree impugned and records ofthe Family Court. 12.Mrs. Fouzia Mirza, learned counsel forthe appellant, vehemently argued 1 that the appellant has married the respondent, both are majors and j j competent to give consent. The respondent was previously known to the appellant, they were having cordial terms and had decided to marry. The fcli L. respondent voluntarily and willfully went with the appellant to Gandai, she converted herself into Islam and after her conversion she contracted marriage with the appellant in accordance with Muslim law (nikah) on 3- 8-2006. After solemnization of marriage, both the parties applied for registration of marriage before the Registering Officer at Durg, finally, the marriage was registered on 22-11-2006 and marriage certificate was issued, but parents of the respondent are not permitting the respondent to discharge her marital obligations and have unnecessarily detained her with them. Learned counsel further argued that in the present case, marriage (nikah) has been performed in accordance with Muslim law, therefore, any petition under the provisions of Hindu law for declaration of marriage null & void is not maintainable and until the marriage solemnized in accordance with the Muslim law is declared null & void in accordance with the provisions of the Muslim law, the parties would still be legally wedded spouses and the respondent is under obligation to discharge her marital obligations. 13.By filing written arguments, the appellgnt has substantiated the aforesaid grounds and has specifically submitted that marriage solemnized in accordance with the Muslim law cannot be regulated or declared null & void under the Hindu law or the Hindu Marriage Act. Parties are required to file appropriate petition for dissolution of marriage or comply the procedure prescribed in the Muslim Personal Law. The Muslim Personal Law does not observe any rituals or ceremonies for conversion to Islam, one who professes Islam and believes in Islam becomes Muslim. 14.Mrs. Fouzia Mirza, learned counsel for the appellant, placed reliance in the matter of Smt. Neeta Kirti Desai v. Bino Samuel George in which the High Court of Bombay has held that in case of husband being a ^ 1AIR1998Bombay74 w^-^r^ h"1 Christian, any petition under the Hindu Marriage Act, 1955 would not be maintainable. Learned counsel further placed reliance in the matter of Sarla Mudgal, President, Kalyani v. Union of India2 in which the Apex Court has held that marriage between Muslim & non-Muslim spouses should be decided according to justice, equity and good conscience. Learned counsel also placed reliance in the matter of Lily Thomas, etc. etc. v. Union of India & Ors. in which the Apex Court has held that change of religion does not dissolve the marriage performed under the Hindu Marriage Act or between two Hindus. Married Hindu contacting second marriage after professing Islam, despite his conversion would be guilty of offence punishable under Section 17 of the Hindu Marriage Act read with Section 494 of the I.P.C., because mere conversion does not automatically dissolve his first marriage. Learned counsel relied upon the matter of Smt. Jacintha Kamath v. K. Padmanabha Kamath4 in which the High Court of Karnataka has held that petition for dissolution of marriage solemnized between Christian & Hindu is not maintainable underthe provisions ofthe Hindu MarriageAct, 1955. 15.0n the other hand, Dr. N.K. Shukla, learned Senior Advocate appearing on behalf of the respondent, vehemently opposed the appeals and submitted that undisputed facts reveal that prior to the alleged claim of marriage with the respondent, the appellant & the respondent were Muslim & Hindu, respectively. According to claim ofthe appellant, while the respondent used to travel by Zia Travels, they came in contact and they could know each other, but both the parties have not claimed that their relation became so close that they married. Both the parties have not claimed/pleaded or adduced evidence to show that prior to 3-8-2006 2AIR1995SC1531 3 JT 2000(5)8c 617 4AIR1992Karnataka372 fc. ^•i^s^^ .-•;:'X. '"'k'^ 8 they have ever decided, proposed or agreed to marry, after conversion of the respondent to Islam. Pleadings & evidence of the appellant clearly reveal that on 3-8-2006, suddenly, the appellant took the respondent to Gandai, Distt. Rajnandgaon far away from Durg where the respondent & the appellant were residing, the respondent converted herself into Islam and married the appellant in accordance with the Muslim law. But even after her marriage, the respondent had not gone to house of the appellant or both the parties had notgone anywhere to reside together. Their marriage has not been consummated and they continued their previous life till 20-11-2006. According to the case of the appellant, on 20-11-2006 both the parties filed application for registration of marriage and marriage was registered on 22-11-2006 in accordancewith the Hindu Marriage Act which was not legally permissible. Learned Senior Advocate further argued that according to the claim of the appellant, both the parties have filed joint application for registration of marriage on 21- 11-2006 and their marriage was registered on 22-11-2006. Documents i.e. proceeding of Marriage Officer Ex.P-1 reveal that both the parties had filed application on 20-11-2006, the...case was fixed for 22-11-2006 and notice was issued to guardians of both the parties. hlowever, the application filed on behalf of the parties reveals that affidavit has been executed on 21-11-2006, marriage officer has received application on 22-11-2006, but proceeding was initiated on 20-11-2006 prior to filing of application for registration of marriage and prior to execution of affidavit in support of the application for registration of marriage. Even if it is admitted that parties have filed application on 22-11-2006, record reveals that on the date of filing of application, the marriage was registered showing that sufficient opportunity has been provided to the guardians of the parties, though no notice has been issued or served, or possible to ^ be issued or served. This shows that the appellant who was in dominating position has tampered the document in connivance with the Marriage Officer and has succeeded in obtaining marriage certificate which patently reveals that the same is tampered and forged document. Except this material, nothing has been adduced by the pari:ies to show that valid marriage has been performed between the parties either in accordance with the Hindu law or in accordance with the Muslim law. In absence of any evidence and tn the aforesaid circumstances, no valid or voidable marriage was performed between the parties and the Family Court has rightly decreed the suit by declaring the marriage void and also dismissed the petition for restitution of conjugal rights. Learned Senior Advocate also argued that although the Family Court has mentioned in the judgment impugned that the dvil .suit fited by the respondent herein was under Section 34 ofthe Specific ReliefAct, 1963 read with Sections 11 & 12 ofthe Hindu Marriage Act, 1955, but virtually the suit was under Explanation (b) to sub-section (1) of Section 7 of the Family Courts Act, 1984 under which the Court was competent to declare the matrimonial status of any person. Learned Senior Advocate contended that taking benefit of unconsciousness of the respondent, the appellant had taken her signatures on some papers. The respondent had never consented for marriage or for her conversion into Islam. The respondent, at the time of alleged marriage, was major and was competent to contract, and in absence of free consent and the alleged performance of marriage by fraud, there subsists no marriage at all, between the parties. Therefore, the appetlant was not under obligation to fite petition for dissolution of marriage/n/'/ca/? under the provisions of the Dissolutionof Muslim Marriages Act, 1939 and the alleged suit under < 10 Explanation (b) to sub-section (1) of Section 7 of the Family CourtsAct, , 1984 for declaration of matrimonial status was competent. 16. Dr. N.K. Shukla, learned Senior Advocate for the respondent, placed reliance in the matter of Sarla Mudgal (supra) in which the Apex Court has held that a marriage which is in violation of any provisions of law would be void in terms of the expression used under Section 494 of the I.P.C. In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. Learned Senior Advocate further placed reliance in the matter of Lily Thomas (supra) in which the Apex Court has held that change of religion does not dissolve the marriage performed under the Hindu Marriage Act or between two Hindus. Married hlindu contacting second marriage after professing Islam, despite his conversion he would be guilty of the offence punishable under Section 17 ofthe hlindu Marriage Act read with Section 494 of the I.P.C., because mere conversion does not automatically dissolve his first marriage. The appellant has also relied on this authority. Learned Senior Advocate glso placed reliance in the matter of Shaji v. Gopinath5 in which the Madras High Court has held that in absence of marriage any certificate issued at the instance of husband is null and void. Learned Senior Advocate relied upon the matter of Abdur Rahim v. Padma in which the Bombay High Court has held that the presence of two witnesses of Mohammedan faith, cannot ipso facto convert any civil marriage into any other form of marriage much less a 'Nikah Fasid'. 5AIR1995Madras161 6AIR1982Bombay341 '^ 11 17.1n order to appreciate the arguments advanced on behalf of the parties,' we have examined the evidence adduced on behalf of the parties in both the cases. 18.As per pleadings & evidence ofthe parties, marriage between the parties has not been solemnized in accordance with the Hindu law. The appellant is Muslim and the respondent was Hindu at the time ofalleged marriage. Both the parties have relied upon the matter of Sarla Mudgal (supra) in which while dealing with the question of matrimonial dispute between Muslim & Hindu (convert to Islam), the Apex Court has held that "in such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience". The Apex Court has further held that "A matrimonial dispute between a convert to Islam and his or her non-Muslim spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a case was or is not required to be the "Muslim Perspnal Law". In such cases the Court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage of a hlindu husband after embracing Islam being violative of justice, equity and good conscience would be void on that ground also and'attract the provisions ofSection 494,1.P.C." 19.1n the present case, the respondent by filing suit for declaration of marriage null & void has challenged her marital status and validity of marriage certificate issued by the Marriage Officer. On the other hand, the appellant has challenged maintainability of the suit before the Family 1 I Court in accordance with the provisions of the Hindu law. It is needless ; to say that in absence of any claim and allegation by any party relating to solemnization of marriage in accordance with the Hindu law, the marriage certificate issued by the Marriage Officer does not confer any 1. s 12 right upon the parties relating to their marital status. The marriage certificate otherwise issued by the competent authority only proves pre- existence of marriage between the spouses. However, issuance of certificate itself is not solemnization or performance of marriage between the spouses. 20-Civil Suit No.158A/2007 was filed by the respondent under Section 34 of the Specific Relief Act, 1963 read with Sections 11 & 12 ofthe Hindu Marriage Act, 1955. The law is settled on this point that misnomer or misquoting of provisions would not be treated as a ground for non- maintainability of suit or petition otherwise maintainable before the Court of competent jurisdiction. 21.As per the pleadings of the appellant, the respondent has solemnized marriage with the appellant after converting her to Islam. Marriage under the Mahomedan law is a civil contract and attracts all the incidents of contract. An idolatress or a fire-worshipper is not competent to marry a Muslim person in accordance with clause 259 of the Mulla's Principles of Mahomedan Law. Clause 259 (1) of the Mulla's Principles of Mahomedan Law reads as follows: - "259. Difference of religion.—(1)A Mahomedan male may contract a valid marriage not only with a Mahomedan woman, but also with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire-worshipper. A marriage, however, with an idolatress or a fire-worshipper, is not void, but merely irregular." 22.As provided in clause 259 (1) of the Mulla's Principles of Mahomedan Law, a Mohammedan male is not competent to contract marriage with an idolatress or a fire-worshipper i.e. Hindu, but after conversion of a female to Islam, a Mohammedan male may contract marriage with the said .0 I 13 female. The Muslim law does not provide any ritual or ceremony for the purpose of conversion intolslam. It is sufficient if he professes the Mahomedan religion in the sense that he accepts the unity of God and the prophetic character of Mahomed. 23.Marriage under the Muslim law is a contract. Clause 251 of the Mulla's Principles of Mahomedan Law provides capacity for marriage which reads as under: - , "251. Capacity for marriage.^1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. 24.8ection 10 ofthe Indian ContractAct, 1872 deals with the word 'contract' which reads as follows: - "10. What agreements are contracts —Allagreements are contracts if they are made by the free consent of parties competent tocontract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India, and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents." In accordance with Section 10 of the Indian Contract Act, 1872, the free consent of parties competent to contract is sine qua non. 25.The term 'free consent' is defined in Section 14 of the Indian Contract Act, 1872 which reads as follows: - "14. 'Free consent' defined.—Consentis said to be free when it is not caused by— 1 (1) coercion, as defined in section 15, or (2) undue influence, as defined in section 16, or 1 (3) fraud, as defined in section 17,or (4) misrepresentation, as defined in section 18, or -^ pojinbej eje synoo eqi 'suoisiAojd 6uojM Buiionb 'JOLUOUSIIU p punoj6 eqi uo A|UO peiuep eq IOUUBO seiijed equo LUIBIO ^nq '9961. 'PV 9Beuje|/\| npuiH 9L|ip 21. ^ 1.1. suoipes jepun eiqeuieiuieLU ^ou SBM j9pejBL|o qons p uo!ieje|09p 'Aipeyiujpv "SS61- 'PV 9Beuje|/\| npuiH eqi p z\, ^ \,[. suoipes MtiM Pe9-i £961. 'PV^!|9y oijioeds QMIP ^9 uoipes Jepun piOA ^ ||nu eCeujeLU jo uoiiejepep joj iins p9|^ seq luepuodssj eqrsz •snieis IBIUBLU jeq p uoiiejeioep jo^ SBM iins eqi AiienyiA IBLII |e9A9j A||Biiueisqns sBuipeeid eqi -^ins piesejo^e eqi peiy peq 8L(s 'ejojajoqi pue jeq uodn peAe|d ueeq seq pnejj inq 'iue||8dde 941 POUJBLU J9A9U peq 8L<s 'iins je^ 0} Ouipjoooe ieqi |B8A9j s6uipe8|d p9|iei9p J9H 'PIOA ^ ||nu 86eujeLu p uoiiejepep jo^ ijns p8|ij. seq inq 'MBI npuiH eqi jo MB| Lui|sn|A| eqi ^IM eouepjoooe ui peziuujeios eBeujeuj J9L1 p uoiiniossjp joj. iins Aue peiij iou seq luepuodsej e^ 'eseo luesejd eqi ui'z^ , "9961- 'PV 9Beuje|/\| npui.H SL^UO suoisiAOjd e^ jspun eiqeuieiuieuj }ou si npuiH ^ ueiisuqo ueeMieq p9ziuLU9|os 96eujeuj p uoiiniossip