Case: Asfaq Qureshi Vs Aysha Qureshi (Nivedita Yadav). Chhattisgarh High Court

JudgesT.P. Sharma and R.N. Chandrakar, JJ.
IssueHindu Marriage Act, 1955 - Sections 11, 12 and 17; Specific Relief Act, 1963 - Section 34; Family Courts Act, 1984 - Section 7 and 7(1); Dissolution of Muslim Marriages Act, 1939; Indian Contract Act, 1872 - Sections 10, 14, 15, 16, 17, 18, 20, 21 and 22; Constitution of India - Article 44; Hindu Law; Mahomedan Law; Civil Procedure Code (CPC) -...
CitationAIR 2010 Chh 58
Judgement DateMarch 19, 2010
CourtChhattisgarh High Court

Judgment:

T.P. Sharma, J.

1. F.A. (M) Nos. 47/2008 & 128/2008 arising out of the common judgment and decree dated 6-2-2008 passed by the 2nd Additional Principal Judge, Family Court, Durg (for short 'the Family Court) in Civil Suit Nos. 157A/2007 & 158A/2007 are being disposed of by this common judgment.

2. Vide F.A. (M) No. 128/2008, the appellant has challenged legality and propriety of the judgment and decree dated 6-2-2008 passed by the Family Court in Civil Suit No. 157A/2007 whereby the petition for restitution of conjugal rights filed by the appellant has been dismissed.

3. Vide F.A. (M) No. 47/2008, the appellant has challenged legality and propriety of the judgment and decree dated 6-2-2008 passed by the Family Court in Civil Suit No. 158A/2007 whereby the Family Court has decreed the suit, filed by the respondent against the appellant, for declaration of marriage void.

4. The appellant has challenged legality and propriety of the judgment and decree on the ground that the parties are Muslim legally wedded spouses, the Family Court was not having jurisdiction to entertain suit for declaration of marriage to be void under the provisions of the Hindu Marriage Act, 1955. The Family Court has also erred in holding that, marriage has not been solemnized between the parties.

5. Brief facts necessary for the disposal of these appeals, as per pleadings of the parties in Civil Suit No. 158A/2007, are that the respondent is a Hindu woman and never converted into Islam. The appellant is a member of Islam. The respondent was working as Shiksha Karmi at Village Badepurda and she used to travel from Durg to Litia Chowk by mini bus of Zia Travels. The appellant was working as Checker in Zia Travels. During the course of travel, they came in contact. On 3-8-2006 while the respondent was travelling in the mini bus of Zia Travels, the appellant provided one chocolate of Dairy Milk to the respondent which she accepted and ate, and she became unconscious. In the evening the respondent came back to her house. She used to travel by the same bus till 20-11-2006. On 22-11-2006, the appellant for the firs time told the respondent that he has married her on 3-8-2006 at madarsa situate at Gandai and also showed the certificate relating to nikah. The appellant threatened her and compelled her for registration of marriage at Durg. He also showed photographs. Under duress, the respondent went with the appellant to the Office of Collector, Durg where 3-4 other persons were present. The appellant took signatures of the respondent on some papers and detained her till 3 p.m. The appellant also took some photographs of the respondent. On 22-11-2006, with a view to avoid to go to the Collectorate, Durg, the respondent went to Dhamdha to attend strike, but the appellant reached there at 2 p.m. by motorcycle and forcefully took her to the Marriage Officer at Durg who issued certificate of marriage. The respondent was under duress. Lastly, on 23-11-2006, she narrated the entire incident to her parents. She claims that she never converted into Islam and never consented for marriage with the appellant. The alleged marriage between the parties is void ab initio and the marriage certificate issued by the Marriage Officer is also void. On the aforesaid ground, suit for declaration of marriage and marriage certificate void was filed by the respondent under Section 34 of the Specific Relief Act, 1963 read with Sections 11 and 12 of the Hindu Marriage Act, 1955.

6. The appellant has denied the allegations made in the plaint and has specifically alleged that the respondent used to travel by Zia Travels and during the course of travel, the appellant and the respondent came in contact during which period their relation developed. The respondent used to send SMS and talk with the appellant from her mobile phone No. 98279-20460 on his mobile phone Nos. 93028-36432 & 94255-64469. On 3-8-2006, the respondent herself came to the appellant near Kachehri Chowk and she herself wilfully went to Gandai by Scorpio vehicle along with the appellant where she converted herself into Islam and filed affidavit for marriage with the appellant, before other persons. Marriage between the appellant and the respondent was performed at Gandai. The' respondent herself has decided not to inform the factum of marriage to her parents till registration of marriage. The respondent was party to the marriage and marriage of the respondent with the appellant was well within her knowledge since 3-8-2006. On 21-11-2006, the respondent along with the appellant went to the Collectorate for registration of their marriage. Both the parties presented application for registration of marriage and next date of 22-11-2008 was fixed by the Marriage Officer. On 22-11-2006, the respondent was present at Dhamdha in connection with strike from where she called the appellant from STD booth and she came from Dhamdha to Collectorate for registration of marriage where marriage was registered and registration certificate was issued to them. The appellant has specifically alleged that the respondent herself has converted into Islam wilfully and after her conversion, she had married the appellant under her free consent, therefore, she is not entitled for declaration of marriage to be void.

7. On the basis of averments, issues were framed and after affording opportunity of hearing to the parties, the Family Court has allowed the suit for declaration of marriage and marriage certificate as null and void.

8. Vide Civil Suit No. 157A/2007, the appellant has filed petition for restitution of conjugal rights under Chapter VIII of the Muslim law. The appellant has specifically alleged that the respondent is legally married wife of the appellant under the Muslim law. Marriage was performed on 3-8-2006 at Gandai madarsa. Parties had agreed that they will enjoy their marital life peacefully after registration of marriage. On 22-11-2006, marriage between the parties was registered, but even after registration of marriage, parents of the respondent are not permitting the respondent for discharging her marital obligations and have detained her. The respondent has filed petition for declaration of marriage null & void at the instance and under the pressure of her parents. The appellant is ready and willing to discharge his marital obligations. On the aforesaid basis, suit for restitution of conjugal rights was filed on behalf of the appellant.

9. The respondent has denied the allegations and has specifically pleaded that she is Hindu, she has never converted into Islam and registration of Muslim marriage under the Hindu Marriage Act, 1955 was not legally possible. She has already filed petition for declaration of marriage void. She has specifically pleaded that there was no marriage or lawful marriage between the parties and therefore, restitution of conjugal rights would not be legally permissible.

10. On the basis of averments of the parties, issues were framed and after affording opportunity of hearing to the parties, the Family Court by common judgment and decree dated 6-2-2008 passed in Civil Suit Nos. 157A/2007 and 158A/2007, has dismissed the suit for restitution of conjugal rights and allowed the suit for declaration of marriage null and void.

11. We have heard learned Counsel for the parties, perused the judgment and decree impugned and records of the Family Court.

12. Mrs. Fouzia Mirza, learned Counsel for the appellant, vehemently argued that the appellant has married the respondent, both are majors and competent to give consent. The respondent was previously known to the appellant they were having cordial terms and had decided to marry. The respondent voluntarily and wilfully went with the appellant to Gandai, she converted herself into Islam and after her conversion she contracted marriage with the appellant in accordance with Muslim law (nikah) on 3-8-2006. After solemnization of marriage, both the parties applied for registration of marriage before the Registering Officer at Durg, finally, the marriage was registered on 22-11-2006 and marriage certificate was issued, but parents of the respondent are not permitting the respondent to discharge her marital obligations and have unnecessarily detained her with them. Learned Counsel further argued that in the present case, marriage (nikah) has been performed in accordance with Muslim law, therefore, any petition under the provisions of Hindu law for declaration of marriage null and void is not maintainable and until the marriage solemnized in accordance with the Muslim law is declared null & void in accordance with the provisions of the Muslim law, the parties would still be legally wedded spouses and the respondent is under obligation to discharge her marital obligations.

13. By filing written arguments, the appellant has substantiated the aforesaid grounds and has specifically submitted that marriage solemnized in accordance with the Muslim law cannot be regulated or declared null and void under the Hindu law or the Hindu Marriage Act. Parties are required to file appropriate petition for dissolution of marriage or comply the procedure prescribed in the Muslim Personal Law. The Muslim Personal Law does not observe any rituals or ceremonies for conversion to Islam, one who professes Islam and believes Muslim.

14. Mrs. Fouzia Mirza, learned Counsel for the appellant, placed reliance in the matter of Smt. Neeta Kirti Desai v. Bino Samuel George AIR 1998 Bom 74 in which the High Court of Bombay has held that in case of husband being a Christian, any petition under the Hindu Marriage...

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