1. This appeal raises an important and difficult; question of law. The facts are as follows: A man named Dukhiram, an Indian Christian, married an Indian Christian woman named Sudakhina. He was subsequently converted to Mahomedanism and contracted a marriage with a Mahomedan woman named Alfatan. nessa. They had a daughter who is defendant 3. After the death of her parents, she inherited a 15 annas share in the property under the Mahomedan law of inheritance. She sold her interest to the plaintiff. The appellant and the other contesting defendants are heirs of Sudakhina. The question for decision is whether an Indian Christian who becomes converted to Mahomedanism can take a second wife. The contention raised on behalf of the appellant is that he cannot, and that the union of Dukhiram with Alfatannessa was a mere adulterous connexion. On behalf of the respondent, an objection was taken to the effect that this point cannot be argued as it was not pressed at the trial. It is certainly included by implication in Issue 5. The written statement went further and alleged that Dukhiram did not even go through a form of marriage with Alfatannessa at all. The learned Subordinate Judge certainly says nothing about it and it looks as though the defendants were so confident of succeeding on the facts alleged that the legal aspect of the matter was not adverted to. The point was, however, taken in the lower Appellate Court in support of the decree. The learned Judge refrained from deciding it and contented himself with dismissing the appeal on the ground that after Dukhiram's death the parties directly concerned all acquiesced in the position of defendant 3 as one of the heirs.
2. The contention put forward in support of this objection is that if the point had been directly taken, the plaintiff might have been able to meet it by proving that Sudakhina also was converted to Mahomedanism. The plaint contains an allegation that both Dukhiram and Sudakhina were so converted. This was denied in the written statement. Issue 4 was framed in connexion with the alleged conversion of Dukhiram. No issue was framed in connexion with Sudakhina. It is thus plain that the plaintiff's case with regard to the conversion of Sudakhina was abandoned, presumably 'on the ground that it was realized to be perfectly hopeless. The case must accordingly proceed on the footing that Dukhiram was converted to Mahomedanism, while Sudakhina was not. The question whether on such facts Dukhiram was legally married to Alfatannessa is a pure question of law and the plaintiff was entitled to support the decree on that ground in the lower Appellate Court. It appears that this point has never been actually decided. A similar question arose in Skinner v. Orde. (1870-72) 14 M.I.A. 309. In dealing with the validity of the alleged marriage their Lordships of the Judicial Committee said this:
The High Court expressed doubts of the legality of this marriage, which their Lordships think they were well warranted in entertaining.
3. Now it appears, that in that case there was some doubt whether the parties were really converted to Mahomedanism or merely pretended to be so in order that they might take advantage of the Mahometan law. Those doubts must be read in connexion with the facts of the case. In Robert Skinner v. Charlotte Skinner (1898) 25 Cal. 537 the question arose whether after the conversion of the husband the wife would be entitled to succeed to the share of a Mahomedan widow in spite of the fact that she was altogether excluded by a will. In the course of the judgment of their Lordships of the Privy Council, Lord Watson observed:
Whether a change of religion, made honestly after marriage with the assent of both spouses, without any intent to commit a fraud upon the law, will have the effect of altering rights incidental to the marriage, such as that of divorce, is a question of importance and, it may be, of nicety.
4. In view of this pronouncement, it might be difficult to say whether Dukhiram could have divorced Sudakhina by talak, but there is no suggestion that his marriage to Alfatannessa was not valid. The question was directly raised in Muncherji Cursetji v. Jessie Grant (1935) 22 A.I.R. Bom. 5. It was there held that when both spouses are converted to Mahomedanism the wife can be divorced by talak. The present question, however, was not in issue. Little assistance can be derived from the decisions in connexion with the interpretation of Section 494, I.P.C. I should however like to refer to the case in In the matter of Ram Kumari (1891) 18 Cal. 264 In that case, a Hindu married woman was converted to Mahomedanism. She subsequently went through a form of marriage with a Mahomedan and was convicted under Section 494, I.P.C. It was held that she had been rightly convicted, because the Mahomedan law does not allow a plurality of husbands. The ratio decidendi suggests that the learned Judge should have refused to convict Dukhiram of bigamy. Both Dukhiram and Sudakhina were Indians domiciled. in India. In connexion with marriage the personal law must be applied. In the case in Advocate-General of Bombay v. Jimbabai (1915) 2 A.I.R. Bom. 151, Beaman J. said this:
On conversion to Mahomedanism, converts, no matter what their previous religion may have been, must be taken at that moment to have renounced all their former religious and personal law in so far as the latter flowed from and was inextricably bound up with their religion, and to have substituted for it the religion of Mahomed with so much of the personal law as necessarily flows from that religion.
5. After his conversion Dukhiram was governed by the Mahomedan law. There can be no question that under that law he was entitled to contract a valid marriage with Alfatannessa. It would therefore be a serious thing to say that such a union was a mere adulterous connexion. In our view, as he was entitled to contract this marriage, under the Mahomedan law, it must be held to be a valid marriage unless there is some statute which invalidates it. Mr. Sen was not able to put forward any such provision: nor can we find anything either in Act 15 of 1872 or in the Divorce Act which would expressly invalidate this marriage. The result is that, in our opinion, Dukhiram did contract a valid marriage with Alfatannessa. The second contention made in support of the appeal was that the succession to the property of Dukhiram would be governed by the Succession Act so far as Sudakhina was concerned and that under the provisions of that Act she inherited a third share. Attempts have been made to take advantage of the Caste Disabilities Removal Act in cases of this kind. It has now however been definitely laid down that that Act does not apply: vide Mitar Sen Singh v. Maqbul Hasan Khan . In the present case an attempt has been made to bring the case within Section 37, Civil Courts Act. That Section is in these terms:
(1) Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Mahomedan law in cases where the parties are Muhammadans, and the Hindu law in cases where the parties are Hindus, shall form the rule of decision except in so far as such law has, by legislative enactment, been altered or abolished. (2) In cases not provided for by Sub-section (1) or by any other law for the time being in force the Court shall act according to justice, equity and good conscience.
6. In our opinion, that Section cannot possibly have any application. Dukhiram died as a Mahomedan. His property accordingly devolved in accordance with the Mahomedan law. In giving the judgment of their Lordships of the Judicial Committee in Mitar Sen Singh v. Maqbul Hasan Khan , Lord Atkin said this:
In other words, when once a person has changed his religion and changed his personal law, that law will govern the rights of succession of his children. It may, of course, work hardly to some extent upon expectant heirs, especially if the expectant heirs are the children and perhaps the unconverted children of the ancestor who does in fact change his religion, but, after all, it inflicts no more hardship in their case than in any other case where the ancestor has changed the law of succession, as, for instance, by acquiring a different domicile, and their Lordships do not find it necessary to consider any questions of hardship that may arise.
7. In the second place, supposing that that Section did apply, I should find it difficult to say that justice, equity and good conscience require that the interest of the daughter should be sacrificed to that of the widow. It would also be extremely difficult to make any provision for the other widow Alfatannessa. In our opinion, the decrees made by the Courts below are correct and the appeal is accordingly dismissed with costs.
Latifur Rahman J.
8. This appeal arises out of a suit for declaration of title to and recovery of possession and partition of the land mentioned in the plaint. It is admitted by both the parties that the land was originally owned by one Dukhiram who professed the Christian faith. It is however alleged by the plaintiff that Dukhiram subsequently became a convert to Islam, married a Mahomedan woman of the name of Alfatannessa and had a daughter by her who is defendant 3 and that this daughter conveyed to the plaintiff the land which she obtained by right of inheritance under the Mahomedan law. The learned Subordinate Judge has found that the fact that Dukhiram embraced Islam was proved. He has also found that Dukhiram became a Mahomedan on conversion from Christianity and married Alfatannessa, a Mahomedan, and had a daughter, defendant 3, born of Alfatannessa. On appeal, the learned District Judge has upheld these findings. The main ground urged is as to whether the second marriage with Alfatannessa is a valid one during the subsistence of the first one. This particular point does not appear to have been directly the subject of any judicial decision. Under the Mahomedan law however, where a Christian embraces Islam he acquires all the rights which a Mahomedan possesses and can contract a valid marriage even though the first one with the Christian wife subsists. If the first marriage were contracted in England under English forms, during its subsistence the second marriage would be regarded as a nullity: see Rex v. Hammersmith Superintendent Registrar of Marriages: Mir Anwaruddin, Ex parte (1917) 1 K.B. 634. In the present case, both the parties were domiciled in India and both the marriages of Dukhiram were solemnized here. I am therefore of opinion that Dukhiram having embraced Islam, his second marriage with Alfatannessa was a valid one and that defendant 3 having inherited her share under the Mahomedan law and having conveyed the same to the plaintiff, he is entitled to succeed. I agree that this appeal should be dismissed with costs.