Leila Seth, J.
1. The interesting point raised in this appeal pertains towhether an apostate of Hinduism can file a petition under the Hindu MarriageAct, 1955 seeking dissolution of a marriage solemnized under that Act, priorto his change of faith.
2. On 17th June, 1978, Sunila, the respondent was married to Vilayat Raj, the petitioner. The parties were both Hindus at the time. The marriage took place in Delhi and was solemnized in accordance with Hindu rites and ceremonies. On 15th September, 1980, a child was born of this marriage. Subsequently, the parties spearated.
3. Thereafter, on 1st October, 1981, the petitioner filed a petition under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (to be referred to in short as 'the Act'). He sought dissolution of the above mentioned Hindu marriage on the ground of cruelty.
4. In the said petition, the petitioner indicated his name as Vilayat Raj alias Vilayat Khan son of Krishan Lal. In the paragraph dealing with status, he set out his status as 'Hindu bachelor' before marriage and 'Mohammadan married' at the time of filing of the petition.
5. His case against the respondent is shown as limited to the allegations of cruelty. A number of averments, in this connection, are pleaded, with which we are, presently, not concerned. Relief is sought, only, on the ground of c uelty; the other necessary averments with regard to there being no collusion or condensation of the matrimonial offence are also pleaded. It is also asserted that there was no delay.
6. After service was effected on Sunila, she filed an application under Sections 24 and 26 of the Act. The trial court ordered payment of litigation expenses and maintenance pendente lite. Sunila received the litigation expenses. The maintenance was duly paid till the disposal of the petition under Section 13 of the Act.
7. On 16th March, 1982, the District Judge directed that the written statement be filed by 8th April, 1982. However, instead of filing the written statement on 8th April, 1982, Sunila moved an application, on that date, under Section 2 of the Act. In the said application she prayed that the petition under Section 13 of the Act be dismissed as not being maintainable. According to her, this was apparent from the fact that the petitioner was admittedly a Mohammadan on the date that the petition was filed, and as such, since, he had ceased to be a Hindu he had lost his right to move a petition under the Act.
8. On 26th April, 1982, the petitioner filed a reply to the said application and averred therein, that as the marriage between the parties had been solemnized according to Hindu rites and customs and the parties were Hindu at the time of marriage, the court had jurisdiction to try the petition and the same was maintainable, as the change of religion had taken place only after the said marriage.
9. On 14th May, 1982 the Additional District Judge after hearing the matter, opined, that patently the provisions of the Act did not apply and the petition was not maintainable as the petitioner was not a Hindu at the time of presentation of his petition. In the circumstances, he dismissed the petition as not maintainable.
10. However, the judge observed that if the petitioning spouse were a Hindu and the respondent had changed his religion, then the Act would apply in view of the provisions of Section 13(1)(ii) which specifically grants a spouse a right to seek a divorce on this ground. He also observed that if the Act were allowed to apply 'in the present case it would amount to granting an advantage to the petitioner emanating from his own wrong which cannot be made permissible'.
11. This order of the Additional District Judge is being challenged before me. Mr. C.B. Thanai, learned counsel, appearing on behalf of the appellant has submitted that the order is erroneous, in that the court has failed to appreciate that the only ground on which the petitioner was seeking relief was that he had been treated with cruelty by the respondent; it had nothing to do with his change of religion.
12. On the other hand, Mr. H.N. Chaudhary, learned counsel for the respondent stated that unless both the parties are Hindus both at the time of marriage and at the time of presentation of the petition, the petition is not maintainable. The only exception to the position is, if the petitioning Hindu spouse is seeking relief under Section 13(1)(ii) of the Act on the ground that the other spouse is no longer a Hindu.
13. In order to appreciate the rival contentions it is necessary to examine some of the provisions and the scheme of the Act. Prior to the coming into force of the Act, there was no provision for divorce for Hindu marriages unless custom so provided. This Act sought to amend and codify the law relating to marriages among Hindus. It now extends to the whole of India and applies to all Hindus in India as also to those Hindus who are outside India, but domiciled in India.
14. Section 2 of the Act provides :
'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, Prathana 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 by 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.'
15. As to who are Hindus, Jamas, Buddhists or Sikhs by religion has been set out in the Explanationn to Section 2. This includes a person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. Members of Scheduled Tribes have, however, been specifically excluded from the applicability of the Act, unless the Central Government by notification otherwise directs.
16. Section 2 Sub-section (3) states :
'The expression 'Hindu' in any portion of this Act shall be constructed 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 contained in this section.'
17. From the above, it is apparent, that apart from the affirmative statement that the Act applies to all persons who are Hindus by religion and to Buddhists, Jainas and Sikhs, it also applies to other domiciled in India except Muslims, Christians, Parsis and Jews and those persons who specifically: establish that they would not have been governed by Hindu law or its customs or usage, if the Act had not been passed. The definition is very wide in its' connotation.
18. No particular religion or community is denoted. Its a comprehensive nomenclature covering various categories of people for purposes of personal law. The Hindu religion is most catholic in its approach. Its theology is tolerant. Its parameters and practice eclectic and elastic.
19. Section 3 is the definition Section and Section 4 provides for the overriding effect of the Act and states that any other law in force immediately before the commencement of the Act shall ceases to have effect in so far as it is inconsistent with any of the provisions contained in the Act.
20. Section 5 sets out the necessary ingredients of a Hindu marriage. In order that, such a marriage be solemnized, it is a condition precedent that both the parties to the marriage are Hindus, Other conditions with regard to age, prohibited degrees of relationship etc. are also specified therein. However, I am presently, not concerned with any of these conditions, as admittedly, the marriage performed on 17th June, 1978 was valid Hindu marriage solemnized between two Hindus.
21. Section 13 pertains to the dissolution of such a marriage by a decree of divorce. It provides for dissolution by decree of divorce on the grounds specified therein on a petition presented by either spouse. A number of grounds have been set out in the said section. The appellant-petitioner has sought relief, as already indicated, under Section 13(1)(ia) asserting that his wife had, after the solemnization of the marriage treated him with cruelty.'
22. Before, parting with this section, it is pertinent and necessary to note one of the other grounds mentioned in the said section. This is 13(1)(ii). It provides that a petition can be presented by either spouse for dissolution of the marriage on the ground that the other party 'has ceased to be a Hindu by conversion to another religion'.
23. This would clearly indicate that the Act contemplates a situation, at the time of presentation of the petition, where one of the parties is not a Hindu. As such, a petitioning spouse, who is a Hindu, can present a petition for divorce against the respondent spouse who has ceased to be a Hindu. For, what is being sought to be dissolved is the Hindu marriage. Then, why should a spouse who has ceased to be a Hindu be debarred from presenting a petition for dissolution of the Hindu marriage under the Act, if some ground is available to him ?
24. The petition, as already noted, is under Section 13(1)(ia) of the Act. It has nothing to do with the ground which would be available in the present case, to the respondent under Section 13(1)(ii). thereforee, the crux of the case is, does the applicability of the Act depend on whether the parties are Hindus at the time of solemnization of the marriage or must they also be Hindus at the time of filing of the petition The marriage sought to be dissolved under the Act has to be a Hindu marriage. It can be dissolved only in accordance with the provisions of the Act. It would, thereforee, appear that when Section 2 says that this Act applies to any person who is a Hindu, it also contemplates a person who was a Hindu at the time of marriage but has since ceased to be a Hindu at the time when the petition is presented. The relevant date on which both the parties are required to be Hindus in order for the Act to apply is the date of the marriage.
25. For, there is no doubt, that a Hindu can marry a person who was earlier a Christian provided that person has been converted to the Hindu religion prior to the marriage, for on the date of the marriage both the parties are Hindus A Hindu includes one who is converted or reconverted to the Hindu religion. So, if the other conditions are satisfied such a marriage would be a valid Hindu marriage.
26. If the parties to such a marriage want it dissolved, they can seek dissolution on the grounds provided in Section 13 and 13B i.e. under the Act. It is also necessary to notice that in Section 5 it is mentioned that 'a marriage may be solemnized between any two Hindus'', if certain conditions set out therein are fulfillled. But Section 13 does not speak of Hindus. It speaks of 'a petition presented by either the husband or the wife' for dissolution by a decree of divorce. Section 13B speaks of both the parties to the marriage and not of Hindus. This would further indicate that at the time of presentation of the petition the parties need not be Hindus.
27. The fact that the application of the Act is to a person who is a Hindu by religion in any of its forms or developments as set out in Section 2 and this provision is identical with the provisions contained in the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act, 1956 cannot be held to lead to the irresistible conclusion that the parties must be Hindus at the time of the presentation of the petition also or at least the petitioning party must be a Hindu, as urged by counsel for the respondent.
28. As above noticed, according to me, the relevant date on which both the parties must be Hindus, is the date of the marriage; for it is the Hindu marriage which is being sought to be dissolved. In the case of succession, the relevant date is normally the date when the succession opens and there are certain provisions which deal with this matter.
29. Further, if the Act is to be interpreted to imply that both the parties must be Hindus or at least the petitioning party must be a Hindu, even on the date of presentation of the petition, this would make noneense of the Act in certain cases. For instance, if subsequent to the solemnization of a marriage in compliance with Section 5 of the Act, both the parties decided to embrace Islam, could the Hindu marriage be repudiated according to the Islamic tenets It would appear not. For it is only a Muslim marriage which can be repudiated in that manner. A unilateral dissolution by the husband on saying 'talaq', 'talaq', 'talaq' cannot be a permissible manner of breaking the bonds of a Hindu marriage.
30. The concept of marriage as between Hindus and Muslims is very different. A Muslim marriage of contract. A Hindu marriage was in the past primarily and essentially a sacrament. Prior to the present Act the Hindu marriage was indissoluble. The Hindu marriage solemnized in accordance with the conditions and provisions of the Act is a voluntary union between a man and women to the exclusion of all others. The dissolution of such a marriage can only be in accordance with the statute.
31. Change of religion by one of the parties does not automatically dissolve the marriage but provides a ground to the other party for dissolution. Conversion also does not per se operate to deprive the party, of rights which may be otherwise available to him under the Act.
32. However, a party is not entitled to take advantage of his ownwrong or disability and gain from a situation which he has brought about resulting in detriment to the other spouse. Under Section 13(1)(ii) ceasing to be aHindu by conversion to another religion is a matrimonial offence. But ifthe aggrieved party does not seek dissolution on this ground, does it debarthe other party from approaching the court on other grounds which areavailable to him under the Act It would appear not.
33. Religion is a matter of one's conscience and freedom of religion has been guaranteed under our Constitution. A party who has been married under this Act cannot be debarred from changing his religion. Of course, if he changes his religion, he must be prepared for the consequences thereof i.e. a likelihood of a petition under Section 13(1)(ii) of the Act- But if no such petition is moved and he is able to establish that he has been treated with cruelty, he surely is entitled to relief, unless there are other reasons for not granting relief.
34. In fact, as already, it would appear to me, that even if both the parties to a Hindu marriage get converted to a religion other than Hindu, their earlier Hindu marriage can be dissolved only under the provisions of this Act. To hold otherwise, would lead to a very unsettling situation for society. For, in the instant case, all that the present appellant would have to do is to state that he is no longer a Hindu and, thereforee, not bound by this Hindu marriage contracted earlier. He could then proceed in any manner he liked and repudiate the marriage.
35. According to me, thus a marriage solemnized between two Hindus in accordance with the Hindu ceremonies and rites must be dissolved also in accordance with the Act; and a petitioner or a respondent or both who have since ceased to be Hindus can approach the court for this purpose. For, if both the parties to the marriage together present a petition for divorce by mutual consent in terms of Section 13B, the fact that since such marriage they have both converted to some other religion should not stand in their way.
36. In Andal Vaidyanathan v. Abdul Allam Vaidya A.I.R. 1946 Mad 446, Leach C. J. speaking for the court has opined that a statutory marriage can only be dissolved in accordance with the statute and a person married under the Act cannot escape from this provisions by merely changing his religion. It would appear to me that this view point would apply with equal force in the present case.
37. The Dissolution of Muslim Marriage Act, 1939 which consolidates the provisions of Muslim Law relating to suits for dissolution of marriage by woman married under the Muslim Law specifically provides and highlights the effect of the renunciation of Islam by a married Muslim woman on her marriage tie. It provides therein that a woman married under Muslim law would be entitled to obtain a decree on the grounds specified therein. Section 4 of the said Act provides that the renunciation of Islam by a married Muslim women or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. However, by a proviso to the said section it is clarified that after such renunciation or conversion, the women shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2.
38. The Converts' Marriage Dissolution Act, 1866, which pertains to legalizing the dissolution of certain marriages of Converts to Christianity provides in Sections 4 and 5 that a spouse, who changes his or her religion for Christianity and is deserted or repudiated for a period of six continuous months, in consequence thereof, can apply for conjugal society. Certain safeguards have, however, been provided in sections 25 and 26. Section 25 provides that if at any stage the respondent is able to establish that the desertion or repudiation is solely or partly in consequence of the petitioner's cruelty or adultery, the suit shall be dismissed and not revived, There is a similar provision in Section 26 pertaining to a male petitioner cohabiting with one of several wives.
39. True, there is no such specific provision in the Act for a dissolution of a Hindu marriage by a convert. But in the instant case the appellant is not seeking any relief on the ground of conversion, nor is his case based on it in any manner.
40. It would, thereforee, appear to me that the appellant is entitled to move the petition under Section 13(1)(ia) of the Act and cannot be debarred at the threshold. Whether he is able to establish that he has been treated with cruelty or even if he does so establish, whether he will be refused relief for other reasons including having committed the matrimonial offence of conversion to another religion are not matters for consideration at this stage. Whether his conversion is malafide and/or a misconduct and/or a contributory factor to the respondent's cruelty resulting in him taking advantage of his own wrong or disability are facts to be considered at a later stage and depend on the facts and circumstances of the case that emerge.
41. As such for the reasons outlined above, the appeal is allowed and the order of the Additional District Judge dated 14th May, 1982 is set aside The case is remitted to the trial court with a direction that it be dealt with expeditiously. However, in the circumstances of the case, I make no order as to costs. The parties are directed to appear before the trial court on 14th March, 1983.
42. An oral application under Article 134A pf the Constitution of India has been made by Mr. Chaudhary for grant of a certificate to appeal to the Supreme Court.
43. Though an interesting point of law has been raised as indicated in the judgment, it would appear to me that this case is not a fit case for grant of a certificate. The reason being that these are matrimonial proceedings and the matter is at the preliminary stage when only the petition has been filed in the trial court. Neither the written statement has come on record nor is any other material available to be able to ascertain the true position of the parties ; even an effort at reconciliation has not yet been attempted.