Mat. App. (FC) No. 34 of 2013. Case: Munavvar-Ul-Islam Vs Rishu Arora. High Court of Delhi (India)
| Case Number | Mat. App. (FC) No. 34 of 2013 |
| Counsel | For Appellant: Sh. Suman Kapoor, Sh. Osama Suhail, Sh. Samama Suhail, Advs. and For Respondents: Sh. Sanjay Dewan, Adv. |
| Judges | S. Ravindra Bhat , J. and Najmi Waziri, J. |
| Issue | Dissolution of Muslim Marriages Act (8 of 1939) - Section 4; Civil Procedure Code (5 of 1908) - Orders 8, 12 Rules 5, 6 |
| Citation | AIR 2014 Del 130 |
| Judgement Date | May 09, 2014 |
| Court | High Court of Delhi (India) |
Judgment:
Najmi Waziri, J.
-
The appellant is aggrieved by the judgment and decree of 26th July, 2013 of the Family Court, Saket, New Delhi ("Trial Court") whereby his marriage with the respondent - contracted as per Muslim personal law - was decreed to have been dissolved due to the latter's subsequent apostasy ("impugned order"). The respondent had sought for divorce under sections 2(ii), 2(viii)(a) and 2(ix) of the Dissolution of Muslim Marriage Act, 1939 ("Act").
-
In the divorce petition ("Petition"), while the respondent-wife had also alleged cruelty and neglect by the appellant, she admitted to having become apostate, having reconverted to her original faith, Hinduism, on 4th March, 2012. She contended that inasmuch as she had apostatized, the marriage stood ipso facto dissolved under Muslim personal law. In his reply to the petition, the appellant gave his own version of the facts and opposed/denied inter alia the factum of the respondent's conversion to Hinduism.
-
Before entering upon a discussion of what the Trial Court concluded on the issues, a few further facts need to be traversed. It is the case of the appellant that pursuant to a college-time romance between the parties, they married each other according to Islamic rites. Prior to contracting the nikah on 15th July, 2010, the respondent had embraced Islam, having renounced Hinduism, admittedly her former religion. She even changed her name from Rishu Arora to Rukhsar.
-
After the marriage, the respondent filed a suit, being CS No. 132 of 2010 before the Senior Civil Judge, New Delhi. She sought a declaration of validity and subsistence of the marriage, allegedly in the apprehension that the appellant/his family may not accept her. The suit was disposed of as the parties appeared before the learned Judge and gave statements as to the validity and subsistence of the marriage. The appellant had relied upon the statement made in these proceedings to contend that the respondent is estopped from denying the existence of the marriage. However, given that there is no estoppel against the law, this contention would be of no relevance in the present matter, as will be discussed further in this Judgment.
-
It was contended that a short while thereafter, differences arose between the parties and they started living separately; the respondent returned to her parents' home. Thereafter, the respondent filed a complaint under the Prevention of Domestic Violence Against Women Act, 2005 as well as a petition seeking maintenance under section 125 of the Code of Criminal Procedure, 1973. However, both the cases were subsequently withdrawn by her. The withdrawals were sought to be explained as being the result of different legal advice given to her upon change of counsel, that since she had apostatized, neither the marriage nor any right to claim maintenance subsisted. It was in these circumstances that the Petition came to be filed.
-
She contended that whereas the issue of dissolution of the marriage on the grounds of cruelty and neglect required detailed trial, the issue of dissolution on the ground of apostasy did not. She argued that for the latter issue, no evidence is required to be led, as her mere statement ipso facto amounts to abjuration of Islam and its tenets. She filed an affidavit admitting to her apostasy. She also filed two fatwas An advisory decision based on the Shariat school of Islamic jurisprudence by a mufti (jurisconsult), Masroor Ahmad v. State (NCT of Delhi) and Anr., ILR (2007) 2 Del 1329 at para. 15, p. 1349 from two muftis A mufti is a specialist on law who can give an authoritative opinion on points of doctrine; his considered legal opinion is called a fatwa. Joseph Schacht, An Introduction to Islamic Law, (Clarendon Press, Oxford, 1982), p.73, cited with approval in Masroor Ahmad v. State (NCT of Delhi) and Anr., supra that the abjuration of Islam would ipso facto dissolve the marriage. A decree to this effect was, ergo, sought by an application under Order XII, Rule 6 of the Code ("Code").
-
The appellant opposed the application under Order XII, Rule 6. He argued that apostasy would need to be proved through trial in a court of law and refuted the contention that apostasy ipso facto dissolves a marriage contracted under Muslim law. He contended that therefore, at the initial stage of the proceedings, a decree of divorce, as sought in the application under Order XII Rule 6 of the Code, could not be granted.
-
The impugned order, which was passed in the aforesaid circumstances, observes that the appellant's admission of the reconversion is, doubtless, not explicit. It however, proceeds to observe that the lack of an explicit admission does not necessarily mean that the implicit admission suffers from ambiguity, requiring a trial to explain the same. It observes that the first substantive defence raised by the appellant in his reply to the Petition was that the Petition was filed contrary to the terms of section 4 of the Act, with especial emphasis on the proviso. It observed that this is an unambiguous admission as to the factum of reconversion.
-
The impugned order then proceeded to consider whether the reconversion would indeed ipso facto dissolve the marriage. It observed that the fatwas filed by the respondent indicates that contemporary experts/ scholars of Muslim personal law are of the opinion that abjuration of Islam ipso facto dissolves the marital relationship and even a decree of divorce would not be necessary. It referred to a judgment of this Court in Rajini Murthi v. Murshid Abdullah Mohd., 1994 III AD 299 and of the Lahore High Court in Mussammat Resham Bibi v. Khuda Bakhsh, (1938) 19 Lah 277: AIR 1938 Lah 482 and to a translation of Ayat 10 of the Holy Quran, to come to the conclusion that the respondent, who has reconverted to Hinduism from Islam is entitled to a decree of dissolution of the marriage. It thus proceeded to grant a decree of divorce, aggrieved whereby, the appellant has approached this Court.
-
After hearing only the appellant's counsel, this Court reserved the matter for judgment. Learned Counsel for the appellant strenuously contended that the impugned order is invalid and contrary to the express provisions of both Muslim personal law as well as the Act. He contended that the Act makes it amply clear that the abjuration of Islam or apostasy per se does not result in dissolution of a marriage governed by Muslim personal law.
-
This Court finds itself unable to agree with this contention. Neither could it be said that apostasy per se does not dissolve a marriage governed by Muslim personal law, nor could it be said that the Act makes any change to this general law. There is sufficient authoritative literature in this regard by the various scholars of Muslim personal law to obviate the need to take recourse to the various theological sources.
-
As early as 1870, Mr. Charles Hamilton, in his translation of Hedaya observes:
"In a case of apostacy separation takes place without divorce.- If either husband or wife apostatize from the faith, a separation takes place without divorce, according to Haneefa and Aboo Yoosaf. Mohammed alleges that if the apostacy be on the part of the husband, the separation is a divorce... Haneefa makes a distinction between refusal of the faith and apostacy from it; and his reason for this distinction is that apostacy annuls marriage, because the blood of an apostate no longer remains under the protection of the law...now divorce is used for the purpose of dissolving a marriage which actually exists; and hence apostacy cannot possibly be considered as divorce: contrary to the case of refusal of the faith, because it is on account of the ends of matrimony being thereby defeated that separation is enjoined, in that instance, as has been already said; and for this reason it is that the separation is there suspended upon a decree of the magistrate, whereas in apostacy it takes place without any such decree..." Charles Hamilton, Hedaya or Guide: A Commentary on the Mussulman Laws, (Second Edition, edited by Stanish Grove Grady, Volume 1, William H. Allen and Co., London, 1870), at p. 66.
(Emphasis supplied)
-
Shortly thereafter, in 1875, Mr. Neil Baillie observes in his Digest as under:
"Apostasy from Islam by one of a married pair is a cancellation of their marriage, which takes effect immediately without requiring the decree of a Judge; and without being a repudiation, whether the occurrence is before or after consummation... If they apostatize together, and then together reembrace the faith, the marriage remains valid on a favourable construction; but if only one of them returns to the faith a separation takes place between them. If it is not known which of them was first in apostatizing, the result is the same as if they apostatized together..." Neil BE Baillie, A Digest of Moohummudan Law, (Second Edition, Part First, Smith, Elder, and Co, London, 1875) pp. 182-183 (Emphasis supplied)
"If one of two spouses should apostatize from the Mussulman faith before connubial intercourse has taken place, their marriage is cancelled on the instant, and the wife has no right to dower if the apostasy be on her side; but if it is on the side of the husband she is entitled to half the dower. If the apostasy does not take place till after connubial intercourse, the cancellation of the marriage is suspended till the expiration of the iddut, whether the husband or the wife be the apostate, and no part of the dower abates, because the right to it has been fully established by consummation. There is an exception, however, if the husband were born in the faith, for in that case, the marriage is cancelled immediately, though it should have been followed by connubial intercourse, because a return to the faith is not allowed." Op. cit., Part Second, pp. 29-30.
-
Thereafter, in 1880, Mr. Syed Ameer Ali observed in his book:
"Under the Mahommedan law, if a Moslem husband or a Moslem...
To continue reading
Request your trial