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Madan Mohan Behl Vs. Veena Rani - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 508 of 1983
Judge
Reported inAIR1984Delhi185; 1984(6)DRJ30; 1984RLR57
ActsHindu Marriage Act, 1955 - Sections 24
AppellantMadan Mohan Behl
RespondentVeena Rani
Advocates: R.C. Kapur and; G.D. Gandhi, Advs
Excerpt:
.....as well as current..........the application for review. the husband has now come in revision against the order awarding the wife maintenance and litigation expenses.(4) mr. kapur, counsel for the husband, has laid a great deal of stress on the proceedings in court of the metropolitan magistrate and the statement of the wife made there and the report to the commissioner of police allegedly made by the wife. from these documents, counsel says, it is prima facie clear that the wife has changed her religion to islam and had has married walia who had also converted himself to islam. walia is not a party to these proceedings and thereforee it cannot be said with any certainty whether he has converted himself to islam or not. walia is a married man having children. we do not know whether he has converted himself to.....
Judgment:

A.B. Rohatgi, J.

(1) The husband, Madan Mohan Behl, has brought a petition for divorce against the wife, Veena Rani. The petition is founded on one ground only. The ground is that the wife has ceased to be a Hindu. She has embraced Islam (Section 13(1)(ii) of the Hindu Marriage Act (the Act) ). The wife is contesting the petition. She has denied her conversation to Islam as alleged by the husband.

(2) During the pendency of the petition the wife made an application under Sections 24 and 26 of the Act for maintenance for herself and the child. There is one child of the marriage. She is a girl, Ruchi by name. She is about 10 years old. She is studying in a school. This application was opposed by the husband mainly on two grounds : (1) that the wife had convened herself to Islam, and (2) that she has remarried. One Walia who is also a convert to Islam is said to have married her. Both these grounds were denied by the wife. There was nothing to show before the learned Additional District Judge that the wife has changed her religion or that she has remarried. So he made an order on 5-4-1983 that the husband shall pay to the wife Rs. 500.00 on account of maintenance pendente lite and Rs. 550.00 on account of litigation expenses. This was for the reason that the husband was employed on a salary of Rs. 2,450-60 in the Bank of India.

(3) After this order was passed the husband filed some documents regarding the proceedings in Court where it is claimed that the wife has admitted her conversion to Islam as well as remarriage with Walia. An application for review was made to the Judge. The wife denied these documents. She stated categorically that she had neither converted herself to Islam nor had she remarried as alleged by husband. On 27-5-1983 the Judge dismissed the application for review. The husband has now come in revision against the order awarding the wife maintenance and litigation expenses.

(4) Mr. Kapur, counsel for the husband, has laid a great deal of stress on the proceedings in Court of the Metropolitan Magistrate and the statement of the wife made there and the report to the Commissioner of Police allegedly made by the wife. From these documents, counsel says, it is prima facie clear that the wife has changed her religion to Islam and had has married Walia who had also converted himself to Islam. Walia is not a party to these proceedings and thereforee it cannot be said with any certainty whether he has converted himself to Islam or not. Walia is a married man having children. We do not know whether he has converted himself to Islam and whether he has remarried the respondent Veena Rani. The wife has categorically denied her conversion to Islam and her remarriage. In view of this denial it will be necessary for the court to go into this question of fact. In fact this is the precise question which has to be tried in the petition, namely, whether the wife has converted herself to Islam. On that will depend the question whether she has remarried. If she has remarried she will be disentitled to maintenance under the Act. But till her conversion to Islam is fully established by the husband which is-the foundation of his case it cannot be said that the wife has disentitled herself to maintenance. Evidence Will be adduced by the parties on this question. The Court will decide it. The Court will record the finding on the pleas of the parties. It is, thereforee, premature to say at this stage that the wife is disentitled to maintenance or litigation expenses.

(5) This is not all. Change of religion by the wife, assuming this to be correct, does not mean automatic dissolution of marriage. This is clear from Section 13(1)(ii) of the Act. Conversion to another religion by a Hindu is a distinct ground of divorce. The marriage is dissolved by a decree of divorce. Till then they remain husband and wife. The marriage bond is not broken. A host of other questions will arise. Is not the alleged second marriage by the wife null and void ab initio under Section 11 read with Section 5(1) of the Act Will it not amount to an offence under Section 494 of Penal Code if it is correct that Walia and wife have contracted a second marriage during the subsistence of their first? I raise these questions but leave them unanswered.

(6) For arguments sake assume the husband's allegations to be true for a moment. Even then the wife is not disentitled to maintenance. It is not the husband's case in the petition that the wife after the solemnization of the marriage is having sexual intercourse with a person other than her husband. (Section 13(1)(i) of the Act. That she is living in an adulterous union with Walia is not the case pleaded before me. The only ground of divorce is that the wife has changed religion. On the question of alleged marriage with Walia the Act, the persona] law, and the criminal law, will have much to say. At this stage it is unnecessary to dwell on these questions. One thing is certain. Till the decree of divorce on the ground of apostasy is passed the marriage of the husband with the wife is not dissolved. Conversion of a Hindu wife to Islam does not ipso facto dissolve the marriage tie with her husband. She continues to be his wife in spite of her conversion until and unless the Court passes the decree of divorce. There is the fundamental fallacy in counsel's arguments.

(7) Then the daughter is there. She has to be maintained. She is a growing child. She is at school. Maintenance order can be sustained on ibis ground if on no.other. This part of the claim is unanswerable.

(8) It is not the case of the husband that the wife has an independent income sufficient for her support. Having regard to the husband's income the Court has awarded a reasonable sum for the wife and the child. That the child was born out of the wedlock is not disputed.

(9) It appears to me that the order of the Judge is correct. The husband has not paid maintenance and litigation expenses as ordered on 5-4-1983. As a result his petition was stayed and consigned to record room. Now if the husband wants to go on which with the divorce case he must pay the amount of maintenance and litigation expenses to the wife in terms of the order of the Judge dated 5-4-1983. I give him one month's time to make the payment of arrears as well as current amount. If he does that he can ask for the revival of the case.

(10) For these reasons the revision petition (C.R. No. 508/83) is dismissed. The parties will bear their own costs.

(11) The parties are directed to appear before the learned trial judge on 28th October, 1983 for payment and for proceedings with the case if the husband decides to proceed with the petition for divorce.

(12) C.M. No. 2375'83 The husband will pay Rs. 200.00 on account of litigation expenses in this Court.

(13) C.M. is disposed of.


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