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Abdur Rahim Undre (Dr.) Vs. Padma Abdur Rahim Undre (Smt.) - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 307 of 1980
Judge
Reported in1983(1)BomCR395; (1982)84BOMLR33
ActsForeign Marriage Act, 1967 - Sections 18(1) and 18(4); Muslim Personal Law (Shariat) Act, 1937; Special Marriage Act, 1954
AppellantAbdur Rahim Undre (Dr.)
RespondentPadma Abdur Rahim Undre (Smt.)
Appellant AdvocateJ.C. Bhatt and ;S.H. Karim, Advs.
Respondent AdvocateNanavati and ;Y.E. Mooman, Advs.
Excerpt:
.....conjugal rights, judicial separation or declaration of nullity. therefore, the power of court to grant reliefs under section 18(1) is not taken away and consequently the only way a relief can be obtained in relation to a marriage between two muslims celebrated abroad, if any one of them happens to be an indian citizen, will be in accordance with the applicable provisions of the special marriage act. therefore, in so far as the husband, in a marriage which otherwise would have been governed by the muslim law, is concerned, his right to pronounce talaq and thereby dissolve marriage which is solemnized in a foreign country is taken away by section 18(1) of the foreign marriage act, 1969 and section 18(4) thereof does not save it. the muslim personal law (shariat) application act, 1937 or..........the section, the provisions of the special marriage act and consequently authorises the court to grant reliefs in respect of any foreign marriage. sub-section (4) provides that if certain types of laws are in force the court will have the authority to grant relief under the act meaning thereby relief under the said act read with applicable provisions of the special marriage act. it must, therefore, follow that the parties in such a case will have no right to approach the court under the act. this exception makes it clear that the effect of section 18 is that where section 18(1) applies the parties are governed only by chapters iv to vii of the special marriage act, 1954 and not by any other law. to fall within the exception carved out by section 18(4) the law applicable to the marriage.....
Judgment:

A.N. Mody, J.

1. The suit, the decision in which has led to this appeal, was bitterly fought between the parties and lengthy evidence was recorded in the matter. The suit and the appeal raise interesting and important questions of law. Even before me Mr. Bhatt for the appellant-husband argued the appeal at great length on facts and also made detailed submissions on the questions of law involved. Mrs. Nanavati started her arguments with submissions on questions of law. On hearing her, I found that the appeal is capable of being disposed of on one question of law only since her submission on that question appeared to have great substance. So I stopped her from going into the facts. Mr. Karim for the appellant very ably tried to dislodge her contention but without success.

2. The plaintiff-appellant is the husband of the defendant-respondent. On 6-5-1966, the plaintiff then a Muslim and the defendant then a Hindu got married in England by getting the marriage registered under the civil law applicable there. Both were and are Indian citizens. They returned to Bombay sometime in April 1969. According to the plaintiff the defendant got herself converted to Islam on 29-12-1969 followed by nikah on the same day. A few years thereafter there were disputes between them and appellant purported to dissolve the marriage by pronouncing talaq in accordance with Muslim law. It is alleged by the appellant that the respondent thereafter broke into his residential flat which was the matrimonial home, forcing the plaintiff to file the present suit which is, inter alia, for restraining the defendant from entering the suit flat. The ground on which the relief was sought is that after the divorce the respondent is not entitled to enter the flat. The respondent counter claimed, inter alia, for an injunction restraining the plaintiff from interferring with her entering and staying in the suit flat.

3. Mr. Bhatt for the appellant submits that the conversion and nikah are proved. He has very vigorously attacked the appreciation of evidence by the learned trial Judge and strongly assailed the findings as being completely unjustified by the weight of evidence, particularly in the light of the respondent not being a truthful witness, she having retracted several of her statements made on oath earlier. According to Mr. Bhatt as the parties were Muslims at the relevant time, they were governed by Muslim law and the appellant had a right to give talaq which he had done and the marriage stood dissolved. In support of his contention Mr. Bhatt relied on Khambatta v. Khambatta 36 Bom.L.R. 1021. He referred to sections 18(1) and (4) of the Foreign Marriage Act and contended that the Muslim personal law was a law in force, particularly as the same had been recognized by the Muslim Personal Law (Shariat) Application Act, 1937 (the Shariat Act). He contends that even if conversion was not proved, a marriage between a Muslim and a Hindu is only an irregular marriage, recognised by Muslim law as 'Fasid' marriage and the plaintiff was within his rights to dissolve the same by talaq.

4. The allegations of conversion and nikah are challenged by the respondent. It was contended that there being no conversion the plaintiff did not acquire any right to dissolve the marriage by talaq as per the Muslim personal law applicable in India. She also contends that the alleged Talaq did not have the effect of dissolving the civil marriage performed in England but talaq, if proved, was intended to dissolve only the alleged Muslim marriage (nikah). The claim of 'Fasid' marriage was also contested. However, in view of the contention based on the provisions of the Foreign Marriage Act, 1967 (hereinafter referred to as 'the said Act') which came into force in 1969 before the plaintiff pronounced talaq, advanced by Mrs. Nanavati for the respondent and which I am accepting, it is not necessary to decide the other questions of law and fact.

5. The contention of Mrs. Nanavati is that any marriage which is a foreign marriage as understood by the said Act, whether solemnized under the said Act or not can be dissolved only in accordance with the said Act or by any other statutory provisions if any, governing such marriage, as the case may be, but not by the Muslim personal law. According to her by virtue of the said Act, the personal law does not apply in respect of foreign marriage contemplated by the said Act. It is necessary to set out section 18 of the said Act to follow this contention.

'18. Matrimonial reliefs to be under Special Marriage Act, 1954.---

1) Subject to the other provisions contained in this section, the provisions of Chapter IV, V, VI, and VII of the Special Marriages Act, 1954 (43 of 1954), shall apply in relation to marriage, solemnized under this Act and to any other marriage solemnized in a foreign country between parties of whom one at least is a citizen of India as they apply in relation to marriages solemnized under that Act.

x x x x x x4) Nothing contained in sub-section (1) shall authorise any Court to grant any relief under this Act in relation to any marriage in a foreign country not solemnized under it, if the grant of relief in respect of such marriage (whether on any of the grounds specified in the Special Marriage Act, 1954 (43 of 1954), or otherwise) is provided for under any other law for the time being in force.'

6. Before I go into the interpretation of section 18, it is necessary to summarise the scheme of the Act. The Act is intended to make provisions relating to marriages of citizens of India outside India. It does not say either that it is an Act to codify the law relating to the marriages of citizens of India outside India or to amend such laws. Therefore, the preamble does not give any clear indication as to whether the Act is complete Code or not. Section 2 is a definition section. Section 3 provides for appointments of Marriage Officers. Sections 4 to 16 in Chapter II provide for conditions relating to solemnization of foreign marriages under the Act and the procedure. Section 17 in Chapter III provides for registration of foreign marriages, which once registered are deemed to be solemnized under the Act. Then comes section 18 followed by section 19 which provides for punishment for bigamy by any person whose marriage is solemnized or deemed to have been solemnized under he Act, and declares the second marriage to be void. By section 27 it accepts the validity of a marriage solemnized in a foreign country otherwise than under the Act since, but for this provision it could possibly be contended that a foreign marriage, though not solemnized under the Act, but which contravenes the provisions of the Act imposing restrictions is void even if valid according to the law of the country where it was celebrated. Remaining sections of the Act are not relevant. Looking to the provisions of the Act it is clear that in respect of a foreign marriage it is a complete Code as regards the consequences of a foreign marriage except that of bigamy in cases of marriages not solemnized or deemed to be solemnized under the said Act. By applying Chapter IV to VII of the Special Marriage Act, 1954, it makes provisions for succession, judicial separation, nullity, divorce and jurisdiction and procedure. In so far as the provisions are made in the Act regarding any matter it is a complete Code. When a provision is made for matrimonial relief by section 18 it will also mean conversely that no other laws will apply in regard to matrimonial relief in relation to a marriage in respect of which such provision is made. If such is not the interpretation more than one statute may apply in relation to such marriage and operating in the same field leading to conflict. Therefore, all, foreign marriages will be governed by section 18(1) and by no other law unless they fall within the exception carved out by section 18(4).

7. This brings me to the interpretation of section 18(1) and (4) Section 18(1) makes certain provisions of the Special Marriage Act, 1954 application not only to the marriages solemnized under the Act but also to any other marriage solemnized in a foreign country between parties of whom one at least is a citizen of India. Chapter IV, V, VI, and VII of the Special Marriage Act, 1954 which are made applicable deal with consequences of marriage under that Act, restitution of conjugal rights and judicial separation, nullity of marriage and divorce and jurisdiction and procedure. Therefore, subject to section 18(4). Law of divorce governing any marriage solemnized in a foreign country where both or one of them are Indian citizen will be governed by the provisions of Special Marriage Act. It, therefore, becomes necessary to consider what is the exception carved out by sub-section (4) of section 18.

8. Sub-section (1) of section 18 makes applicable, subject to the other provisions contained in the section, the provisions of the Special Marriage Act and consequently authorises the Court to grant reliefs in respect of any foreign marriage. Sub-section (4) provides that if certain types of laws are in force the Court will have the authority to grant relief under the Act meaning thereby relief under the said Act read with applicable provisions of the Special Marriage Act. It must, therefore, follow that the parties in such a case will have no right to approach the Court under the Act. This exception makes it clear that the effect of section 18 is that where section 18(1) applies the parties are governed only by Chapters IV to VII of the Special Marriage Act, 1954 and not by any other law. To fall within the exception carved out by section 18(4) the law applicable to the marriage must be, (a) law for the time being in force and (b) a law which provides for grant of relief in respect of 'such' marriage. According to me the Muslim personal law will be, 'law for the time being in force.' Law for the time being in force would normally include personal law unless the context otherwise indicates. This view is supported by the State of Bombay v. Narasu Appa Mali : AIR1952Bom84 wherein it was observed that Muslim law would be a law in force but was not a law in force as contemplated by Article 13 of the Constitution in view of the context. However, it is from the preceding words, 'if grant of relief in respect of such marriage (whether on any of the grounds specified in the Special Marriage Act, 1954 or otherwise) is provided for under ' it is clear that 'law for the time being in force' is not expected to mean any law which is in force but to mean only such law in force which provides for grant of relief in respect of such marriage. Such marriage means a marriage in a foreign country, one of the parties to which is an Indian citizen, but which is not solemnized or deemed to be solemnized under the Act. What is to be noticed is that entire sub-section (1) is not made inapplicable by the sub-section but it is made inapplicable only to the extent a relief can be granted under the Act. So the consequences which flow from the provisions of sub-section (1) read with applicable provisions of the Special Marriage Act in contradistinction to the provisions regarding grant of relief are not affected by section 18(4). It is only the right of relief that if taken away. Accordingly the provisions in the Act regarding the applicability of the law of succession will always govern a foreign marriage even if not solemnized under the Act and though there may be other laws in force governing succession. Therefore, the application of sub-section (1) is affected only to a very limited extent by sub-section (4); it is only if there is another law in force which provides for grant of relief in respect of the marriage that the Court will not have a power to grant relief under the said Act and consequently the parties will not have a right to obtain relief under the Act, but will have a right to get relief only under such other law. Therefore, the law that will make the provisions as to grant of relief under the Act inapplicable must be of a nature which provides for 'grant of relief'. The relief necessarily presupposes existence of a grievance or wrong and grant of relief means redress thereof. The use of word 'grant' presupposes existence of a grantor, who in relation to matrimonial relief must mean some authority such as a Court of law or a Tribunal or even an arbitrator. Therefore, the law in force contemplated by sub-section (4) is a law which gives a right to a party to approach some authority in India, statutorily constituted or recognised, for redress of or relief from a grievance or wrong relating to marriage. This necessarily excludes any law which does not provide for rights which have to be enforced through such authority. A law authorising a person to relieve himself, by his own arbitrary action, of marriages and obligations cannot be a law providing for grant of relief. It is only a law permitting an unilateral act to a person for his own benefit or at his own sweet will, irrespective of existence of circumstances requiring any relief therefrom. Grant of relief presupposes determination of existence of circumstances calling for relief and nature of relief to be granted followed by grant of suitable relief. The Muslim personal law does not provide for any 'grant of relief' in respect of any marriage. It merely gives a right to a husband to unilaterally dissolve his marriage. It does not provide for grant of relief such as restitution of conjugal rights, judicial separation or declaration of nullity. Therefore, the power of Court to grant reliefs under section 18(1) is not taken away and consequently the only way a relief can be obtained in relating to a marriage between two Muslims celebrated abroad, if any one of them happens to be an Indian citizen, will be in accordance with the applicable provisions of the Special Marriage Act. Therefore, in so far as the husband, in a marriage which otherwise would have been governed by the Muslim law, is concerned, his right to pronounce talaq and thereby dissolve marriage which is solemnized in a foreign country is taken away by section 18(1) of the said Act and section 18(4) does not save it. This view that I am taking, will also raise a question regarding which law will govern the right or a Muslim wife in a Muslim marriage performed in a foreign country. It would appear that in view of the specific provisions for grant of relief of divorce statutorily provided by the Dissolution of Muslim Marriage Act, 1939, the provisions of Foreign Divorce Act, 1967, may not apply in case of such a wife seeking matrimonial relief. Another question that may arise is whether only the provisions of section 18(1) regarding divorce will not apply or all the provisions relating to other reliefs such as nullity and judicial separation will not apply. These questions do not fall for determination in the present matter and will have to be decided in a case wherein they may arise. No such statutory provision exists regarding grant of relief to a husband.

9. Mr. Nanavati relied on a decision in Andal Vaidyanathan v. Abdul Allam Vaidya A.I.R. 1946 Mad. 446. In that case a Hindu non-Brahmin married a Hindu Brahmin under the Special Marriage Act, 1872. A few years thereafter the respondent became a Mohamedan and called upon his wife to embrace the Mohamedan faith. She refused to do so and the husband filed the suit in the City Civil Court for the declaration that the marriage between him and the applicant stood dissolved. The City Civil Court granted the declaration on the ground that the Special Marriage Act did not preclude the operation of the personal law of the Mohamedan. The High Court set aside the decree of the City Civil Court allowing the appeal. While doing so, it was, inter alia, held, 'The Special Marriage Act clearly only contemplates monogamy and a person married under the Act cannot escape from its provisions by merely changing his religion.' The case of Khambatta v. Khambatta was considered and distinguished. This judgment does not help Mrs. Nanavati. It proceeds on the basis that since the Special Marriage Act prohibited another marriage by a person who had married under that Act, it was an Act which contemplated monogamy and unless the marriage was validly dissolved, which can only be done under that Act, a person by converting himself to another religion which provided for the dissolution of marriage in the manner different from that provided under the Special Marriage Act, cannot escape the consequences of the Special Marriage Act. In the present case the Foreign Marriage Act does not prohibit a second marriage in case of every foreign marriage. The second marriage is prohibited and declared void only in case of a marriage which is solemnized or deemed to be solemnized under he Act. The Foreign Marriage Act, therefore, does not contemplated monogamy in every case and the ratio of the Madras judgment is not applicable to the present case.

10. To summarize, section 18 of the Act applies to all marriages solemnized in a foreign country whether under the Act or registered under the Act or otherwise and one of the party to which is an Indian citizen. The consequences of such a marriage and reliefs in respect thereof will be governed by section 18(1) read with the relevant provisions of the Special Marriage Act in all cases except where any Indian law, statutorily or other wise provides for grant of relief. No law which is non-statutory presently comes to my mind which provides for grant of relief, that is a right to apply to some authority. There being no such provision in the Muslim law, so far as a husband is concerned, in case of a foreign marriage a divorce can be obtained by a husband only in accordance with the provisions of the said Act not otherwise.

11. Mr. Bhatt's contention that the Shariat Act is such an Act as is contemplated by section 18(4), cannot be accepted. The Shariat Act was enacted to provide for governance of Muslims, by law as laid down in Shariat in preference over customary law. The Shariat Act, therefore, makes personal law applicable uniformly to all Muslims notwithstanding any custom or usage to the contrary. The Shariat Act does not contain any rules or law governing Muslims and less so provides for grant of any relief in respect of a marriage. The Shariat Act or the Shariat Act read with Muslims personal law cannot be said to be the law in force contemplated by section 18(4) of the Foreign Marriage Act.

12. In the circumstances on an assumption that there was a conversion of the respondent followed by a marriage according to Muslim law and that there was a talaq dissolving both marriages, that is the civil marriage in England and the marriage by nikah ceremony in India, the said talaq will be invalid as being beyond the power of the husband inasmuch as the law governing the divorce will be Foreign Marriage Act. The real marriage is the one performed abroad and the nikah will not convert it into an Indian marriage.

13. It is true that but for the Foreign Marriage Act, Khambatta v. Khambatta 36 Bom.L.J. 1021 relied on by Mr. Bhatt will govern the present case. In that case a Scot woman was married to a Muslim in accordance with the civil law prevalent in Scotland. After coming to India she embraced Islam followed by divorce by talaq. She then got married to a Zoroastrian. After sometime she filed a suit for declaration that her second marriage was invalid because she was married under a system of law which did not recognise polygamy. It was her contention that by mere change of religion a monogamous marriage cannot be dissolved under Muslim personal law and accordingly the second marriage was invalid. While negativing this contention it was held by the Division Bench of this Court that at the time of divorce the parties were governed by the personal law and the right of divorce also will be governed by the personal law, irrespective of the fact that the law of the celebration of the marriage recognised only a monogamous marriage. If the matter rested here, then this judgment being binding on me, I would have no hesitation in holding that in the present case also the conversion if proved followed by talaq which if purported to dissolve the marriage can effectively dissolve the marriage subject to considering the contention of Mrs. Nanavati that the talaq dissolved only the marriage which had taken place on 29th December, 1969, and not the marriage celebrated in England. However, as I have already held, in case of a foreign marriage because of the legislative change effected by the Foreign Marriage Act, 1967, Muslim personal law cannot apply and the said judgment is robbed of its efficacy in so far as a foreign marriage is concerned.

14. Mr. Bhatt also contended that even if I held that there is no dissolution of marriage, the plaintiff will still be entitled to relief inasmuch as once the husband does not desire that his wife should stay with him and offers a suitable alternative accommodation or money in lieu thereof, wife's insistence on residence with the husband will be unreasonable. In such circumstances the wife loses her right to remain in the matrimonial home. In support of this contention he relies on a passage in Indian Law of Marriage and Divorce, by Kumud Desai, third addition at page 356. The observation in commentary is based on Hill v. Hill 1918 W.N. 59. Without going into this decision of 1918 vintage, in modern times, I have to point out that no such offer of suitable alternative accommodation has been made nor sum of money provided in lieu of such accommodation. The moneys provided in lieu of accommodation must necessarily be such as to enable the wife to acquire suitable alternative accommodation. The suitable alternative accommodation will depend on several factors one of them being the type of accommodation the she is accustomed to live in. Mr. Bhatt tendered an affidavit dated 12-9-1980 on 8-7-1981. A copy of the affidavit tendered by Mr. Bhatt was given to the respondent only in the Court on 8-7-1981 when the case was going on and so the respondent had no opportunity to file any reply. In this affidavit an offer is made that the appellant will continue to pay the sum of Rs. 1,500/- per month, which he has been paying as and by way of maintenance and for alternative accommodation and that the appellant is agreeable to continue to provide the respondent with the said sum for maintenance and alternative accommodation in terms of the order passed in this matter. The order is the one dated 29-8-1978 passed on an appeal against an interim order passed on the Notice of Motion and so is an interim order. There is nothing on record to show that a sum of Rs. 1,500/- per month is sufficient to provide the respondent with suitable alternative accommodation and also maintenance in the city like Bombay with high cost of living and where high rates and heavy prices are required to be paid for accommodation. I doubt whether such an amount can be said to be adequate for any person who is accustomed to stay in a building like 'Paradise' situated on Napean Sea Road which is supposed to be a locality where well-to-do persons stay. In absence of any evidence to show that this is adequate amount to enable the respondent to acquire adequate alternative accommodation and also to maintain herself the offer contained in the affidavit is of not effect.

15. In the circumstances, I dismiss the appeal with costs which are quantified at Rs. 500/-.

16. So far as the counter claims are concerned it is the contention of Mr. Bhatt that even if I am inclined to dismiss the appeal, as regards the counter claim, I should not allow the reliefs to stand without some qualification. He contends that it is likely that with a view to harass the plaintiff the defendant may bring in some undesirable person. I do not find anything on record to conclude that there is any basis for such apprehension. In the circumstances, the reliefs granted by the trial Court in the counterclaim are confirmed subject to the qualification that the respondent is directed that she will not interfere with the right of the plaintiff in the similar manner as the plaintiff is restrained from interfering with her rights. The plaintiff will pay the costs of the counterclaim to the respondent.

17. Mr. Karim applies for continuance of the interim order for a period of four weeks from today on the ground that this is an important question of law and he will like to file further appeal. Mrs. Nanavati contends that the respondent is sufficiently harassed for over three years by having to stay along with a friend in a very small and inconvenient place, that she was thrown out of the house only with a few clothes and that she suffered very much till the order of maintenance was made by this Court, that the children are coming to Bombay on or about 29th July to spend the school vacation and that there is no adequate place to put them up where the respondent is at present staying, making the access given to her illusory. She also points out Rs. 1,500/-, is nor adequate for the respondent to maintain herself in the manner in which she is accustomed, as a wife of the petitioner. Mr. Karim states that out of four children, two children are going on an educational tour and they are not coming to Bombay and two other children are coming only on 12th August, 1981. It is difficult for me to go in details of the questions of fact involved in absence of affidavits. In my opinion it is just and equitable to continue the interim order for a short period. It will be open to Mr. Karim to apply for appropriate reliefs, if so advised, in an appeal that may be filed. Though there appears to be some substance in what the respondent says, the continuance of the interim order for some time cannot harm the respondent. The interim order will continue including the undertaking given by the plaintiff regarding not to dispose of or part with the possession, till 26th July, 1981.


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