Alfred Henry Lionel Leach, C.J.
1. The appellant who is a Hindu non-Brahmin was married under the Special Marriage. Act (Act III of 1872) on the 13th May, 1934, to the respondent who was then a Hindu Brahmin. A daughter was born to the parties some two years later. In the month of May 1944, the respondent became a Mahomedan and called upon his wife to embrace the Mahomedan faith. She refused to do so and consequently the respondent filed a suit in the City Civil Court for a declaration that the marriage between him and the appellant had become dissolved. The principal Judge of the City Civil Court tried the case and came to the conclusion that the provisions of the Special Marriage Act: did not preclude the operation of the personal law of a Mahomedan and therefore, as the appellant bad refused to embrace her husband's religion, the marriage must be deemed to have been dissolved. The defendant has appealed.
2. We have no hesitation in stating that the learned Principal Judge misconstrued the relevant provisions of the Special Marriage Act. When these are understood it is abundantly clear that the marriage between the appellant and the respondent could only be dissolved under the provisions of the Indian Divorce Act, 1869.
3. The conditions required by Section 2 of the Special Marriage Act were fulfilled in this case and the.marriage was solemnised before the Registrar in accordance with Section 11 of the Act. Section 17 states that the Indian Divorce Act shall apply to all marriages contracted under the Special Marriage Act and any such marriage may be declared null or dissolved in the manner therein provided and for the causes therein mentioned. The section also provides that it may be declared null on the ground that the marriage contravenes one or more of the conditions prescribed in clauses (1), (2), (3) or (4) of Section 2 of the Special Marriage Act. But beyond this it does not go. As we have already indicated, there was no contravention of Section 2.
4. Section 16 of the Special Marriage Act provides that a person married under it, who, during the lifetime of his or her wife or husband, contracts another marriage, shall be subject to the penalties provided in Sections 494 and 495 of the Indian Penal Code for the offence of marrying again during the lifetime of a husband or wife, whatever may be the religion which he or she professed at the time of the second marriage. Therefore a person married under the Special Marriage Act commits bigamy if he marries again during the lifetime of his spouse and it matters not what religion he professes at the time of the second marriage.
5. Sections 22, 23, 24, 25 and 26 indicate further great changes in the personal law of a party to a marriage under this statute. Section 22 says that such a marriage of a member of an undivided family who professes the Hindu, Bhuddhist, Sikh or Jaina religion shall be deemed to effect his severance from his family. Section 23 says that such a person shall have the same rights and be subject to the same disabilities in regard to right of succession to property as a person to whom the Caste Disabilities Removal Act, 1850, applies. Section 24 states that succession to the property of a person professing one of these religions who marries under the Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act, 1865. Section 25 takes away the power of adoption. Section 26 gives the father of a man married under the Act the right to adopt a son under the law to which he is subject, if he has no other son living.
6. 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 provisions of Section 16 makes this clear beyond all doubt and Section 17 provides the only means for the dissolution of a marriage or a declaration of its nullity.
7. The Principal Judge based his decision on the judgments in Muncherji Cursetji Khambhatta v. Jessie Grant Khambatta1 and In the matter of RamkumarP. In neither case was the marriage under the Special Marriage Act and the judgments have no bearing whatever on the question now before the Court. The question was considered by the Calcutta High Court in Moor Jehan v. Eugene Tiscenko 45 C.W.N. 1047. It was there said that there could be no doubt that if two persons who were married under the Special Marriage Act subsequently became converted to Islam, the marriage could only be dissolved under the provisions of the Indian Divorce Act and it follows from what we have said that we respectfully agree. The same would apply even if only one of them became converted to Islam. To use the language of Swinfen Eady, Xi.J., in Rex v. Hammersmith Superintendent Registrar of Marriages. Mir Anwaruddin Ex parte4, this marriage is not a marriage in the Mahomedan sense which can be dissolved in the Mahomedan manner. We may add that it is a statutory marriage and can only be dissolved in accordance with the statute.
8. For these reasons we allow the appeal and dismiss the suit with costs both here and below.
9. We are indebted to the learned Advocate-General, who has appeared as amicus curiae, for his great assistance to the Court.