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2010 DIGILAW 864 (DEL)

GA Arife @ Arti Sharma v. Gopal Dutt Sharma

2010-08-13

KAILASH GAMBHIR

body2010
JUDGMENT KAILASH GAMBHIR, J. 1. This common order shall dispose MAT Appeal Nos. 69/2010 and 70/2010 preferred by the appellant challenging the orders of the Courts below. 2. In appeal No. 70/2010 the appellant has challenged the judgment and decree dated 11th March, 2010 passed by the Court of Shri M.K. Nagpal, Additional District Judge (Central) Delhi whereby the divorce petition filed by the petitioner under Section 13(1)(ia) & (ib) of the Hindu Marriage Act 1955 was dismissed. In appeal No. 69/2010 challenge has been made to the order dated 9th April, 2010 passed by the Additional District Judge, Delhi thereby dismissing the petition of the appellant and her daughter under Section 25 of the Hindu Marriage Act. 3. The crucial question to be examined by this Court, in both the appeals, is that whether the appellant could successfully prove in the divorce petition her conversion from Islam to Hinduism so as to lawfully marry the respondent according to the Hindu rites and ceremonies. It is not in dispute between the parties that the right of the appellant to claim divorce under Section 13(1) (ia) & (ib) of the Hindu Marriage Act would be available to the appellant only when both the parties were Hindu by religion, in any of its forms, at the time of their marriage and they continued to embrace the same religion at the time of the presentation of the petition. It is further not in dispute that the appellant is a Muslim by religion and the respondent is a Hindu Dogra Brahmin. 4. The case set up by the appellant in her divorce petition in nutshell is that the appellant was Muslim by birth and she, as well as the respondent, were working together in Directorate of Financial Planning in Air Ltd. in the capacity of a clerk and officer respectively. It is further alleged that the respondent had expressed his willingness to marry the appellant. According to the appellant both of them got married on 3.12.1988 in Arya Samaj Mandir, Defence Colony, New Delhi according to Hindu rites and customs in the presence of their friends and relatives. It is further alleged that the appellant became pregnant and the respondent suggested her to undergo abortion to which she did not agree. According to the appellant both of them got married on 3.12.1988 in Arya Samaj Mandir, Defence Colony, New Delhi according to Hindu rites and customs in the presence of their friends and relatives. It is further alleged that the appellant became pregnant and the respondent suggested her to undergo abortion to which she did not agree. It is further alleged that on 28th March, 1989 on the refusal of the appellant to undergo abortion, the respondent had called police from P.S. Lodhi Road but the said complaint was later on withdrawn by the respondent. It is further alleged that the respondent had married another lady on 24.5.1989 at Jammu. Certain other allegations of cruelty were leveled by the appellant against the respondent, which may not be relevant for deciding the said crucial question. 5. The respondent in his written statement on the other hand refuted all the said allegations leveled by the appellant. The respondent in his written statement averred that the appellant had never renounced her Islam religion and never converted herself to Hindu religion before the alleged marriage. The respondent has also refuted the solemnization of the said marriage with the appellant on 3rd December, 1988 either at Arya Samaj Mandir, Defence Colony, New Delhi or at any other place. He rather stated that his marriage took place with one Smt. Vijay on .24.5.1989. All other allegations of cruelty were denied by the respondent. 6. I have heard appellant, who appeared in person and Mr. M.G. Dhingra, counsel for the respondent. 7. Before the matter was heard, the appellant was advised to take the assistance of a lawyer, but she bluntly refused to do so, on account of her past bad experience with lawyers. She also refused to take any assistance from Delhi Legal Aid and Advice Board, and persisted to argue the said two appeals herself. 8. The appellant was told by the Court to first satisfy as to how and in what manner she claims to have proved conversion of her religion from Islam to Hinduism before marrying the respondent so as to invoke the provisions of The Hindu Marriage Act, 1955 under Section 13 (1) (ia) and (ib) and Section 25 of the Hindu Marriage Act for seeking divorce and for claiming maintenance. 9. 9. The appellant throughout her arguments failed to give any convincing reply to satisfy the Court that she was successful in proving her conversion from Islam religion to Hinduism with the help of any documentary or oral evidence. 10. The first contention raised by the appellant was that the learned trial court wrongly observed that she had placed on record a copy of the letter dated 3.2.1982 of the Arya Samaj Mandir, Defence Colony, Delhi which document was admitted by the respondent at the time of admission/denial of documents. The contention of the appellant was that she had never placed reliance on the said document. The appellant laid much emphasis on the letter dated 29.3.1993 written by the then President of Arya Samaj Mandir to one Mr. Roshan Lal, Manager of Shri Ratan Chand Arya Nursery School wherein author of the said letter stated that the appellant had embraced the Hindu religion. The appellant also strongly relied upon the statement of PW-2 Mr. M.L. Gupta from Shri Ratan Chand Arya Nursery School, Arya Samaj Mandir, Sarojini Nagar, New Delhi, who in his deposition stated that the appellant had embraced Hindu religion. The appellant also contended that it was Mr. M.L. Gupta alone who had recommended the grant of fee concession in favour of her daughter Chandni Sharma to the said school. Appellant further placed reliance on the affidavit dated 19.8.92 which was filed by her to prove the factum of her marriage with the respondent and stated the said affidavit was duly proved on record as Ex. PW1/1. The appellant further submitted that the respondent in his written arguments filed before the trial court clearly admitted that the appellant stayed with the respondent at least till 23.05.1989. 11. The appellant also sought to clarify her stand as to under what circumstances in the birth certificate of the daughter Ex. PW-1/2 her religion was disclosed as Islam. Clarifying her stand on the same, the appellant submitted that the said Muslim religion in the birth certificate was disclosed at the instance of her aunt and not by her. The appellant thus stated that the said mention of the religion as Muslim in the birth certificate of her daughter could not have been taken into consideration by the ld. Trial court. 12. Mr. M.G. Dhingra, ld. The appellant thus stated that the said mention of the religion as Muslim in the birth certificate of her daughter could not have been taken into consideration by the ld. Trial court. 12. Mr. M.G. Dhingra, ld. counsel appearing for the respondent, on the other hand contended that the appellant had been taking inconsistent stands with regard to the place of her alleged marriage with the respondent. Counsel submitted that in the legal notice dated 9th June, 1989 proved on record as exhibit PW 1/D-9 the appellant took a stand that her marriage with the respondent took place at D-212, Pragati Vihar Hostel, New Delhi and similarly in the petition filed under Section 125 Cr. P.C., Ex. PW1/D-1, the same place of marriage was disclosed by the appellant. The contention of the counsel for the respondent was that it is only in the divorce petition that for the first time the appellant alleged that her marriage with the respondent had taken place at Arya Samaj Mandir, Defence Colony, New Delhi. Counsel further submitted that neither in the divorce petition nor in the legal notice the appellant had set up any case of conversion from Islam to Hinduism before the alleged marriage. Counsel further submitted that it is only when in the written statement the respondent took objection to the very maintainability of the divorce petition, the appellant sought to raise the plea of conversion from Islam to Hinduism. The respondent further submitted that during the pendency of the said petition, the appellant had moved an application under Order 6 Rule 17 r/w Section 151 CPC to seek amendment in her divorce petition with a view to introduce the said plea of conversion but the same was disallowed by the matrimonial Court. Counsel further submitted that no documentary evidence was placed on record by the appellant to prove that she got converted to Hinduism and similarly no documentary evidence was produced to establish the factum of marriage. Counsel further argued that the letter dated 29.3.1993 on which reliance has been placed by the appellant was not proved on record, which document otherwise, as per the counsel, does not establish the conversion of the appellant from Islam to Hinduism. Counsel for the respondent further argued that even the evidence of Mr. Counsel further argued that the letter dated 29.3.1993 on which reliance has been placed by the appellant was not proved on record, which document otherwise, as per the counsel, does not establish the conversion of the appellant from Islam to Hinduism. Counsel for the respondent further argued that even the evidence of Mr. M.L. Gupta, PW2 and evidence of the appellant is full of contradictions and the same nowhere proves that the appellant converted to Hindu religion. Counsel further argued that the appellant failed to disclose that in what manner and on the performance of which ceremonies and who are the pundits through whom she got herself converted to Hindu religion. Counsel also argued that the appellant failed to produce any independent evidence either to prove the fact of conversion or of solemnization of the marriage although the appellant in the divorce petition clearly stated that the ceremonies took place in the presence of friends and relatives. Counsel thus submitted that the appellant continued to remain Muslim and, therefore, the divorce and maintenance petition filed by her were not maintainable in the eyes of law. Counsel for the respondent referred to Rule 7(b) of the Hindu Marriage Rules and judgment of the Apex Court in the case of Gullipilli Sowria Raj vs Bandaru Pavani alias Gullipilli Pavani (2009) 1 SCC 714 13. Before proceeding further it would be appropriate to reproduce the Preamble and Sections 2 and 5 of the Hindu Marriage Act 1955 and Rule 7 (b) and (c) of the Hindu Marriage Rules as under: Preamble: "An Act to amend and codify the law relating to marriage among Hindus" ……………….. Section 2. Application of Act.-(1) 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, Prarthana or Arya Samam, (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. Explanation.-The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:- (a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and (c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion. (2) Notwithstanding any thing contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. (3) The expression 'Hindu' in any portion of this Act shall be construed 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. ………………… 5. Conditions for a Hindu marriage.-A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i) neither party has a spouse living at the time of the marriage; (ii) neither party is an idiot or a lunatic at the time of the marriage; (iii) the bridegroom has completed the age of eighteen years and the bride the age of fifteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; (vi) where the bride has not completed the age of eighteen years, the consent of her guardian in marriage, if any, has been obtained for the marriage ………. Rule 7. Contents of petition.-In addition to the particulars required to be given under Order VII, Rule 1 of the Code and Section 20(1) of the Act, all petitions under Sections 9 to 13 shall state: ……….……. Rule 7. Contents of petition.-In addition to the particulars required to be given under Order VII, Rule 1 of the Code and Section 20(1) of the Act, all petitions under Sections 9 to 13 shall state: ……….……. (b) whether the petitioner and the respondent were Hindu by religion at the time of marriage and whether they continue to be so upto the date of filing of the petition; (c) the name, status and domicile of the wife and the husband before the marriage and at the time of filing the petition; (d) ….." 14. Indisputably, the appellant was a Muslim before her alleged marriage with the respondent and therefore for filing a petition under any of the provisions of the Hindu Marriage Act it was imperative on the part of the appellant to have proved that she converted herself from Islam religion to Hinduism and she continued to embrace Hindu religion not only on the date of her alleged marriage with the respondent but also at the time of filing of the said petitions invoking the provisions of the Hindu Marriage Act. 15. According to the Hindu law, marriage is a sacramental union and marriage between two Hindus cannot take place without the performance of sacred rites and ceremonies. So far the Muslims are concerned, under the Muslim Personal Law they treat marriage as a ‘Contract’ and it has never been treated as a sacrament though it is also solemnized with the recitation of verses from the Quran. The appellant in the present appeals has claimed that she had embraced Hindu religion and converted herself from Islam to Hinduism on 3.12.88 prior to solemnization of her alleged marriage with the respondent in Arya Samaj Mandir, Defence Colony, New Delhi. It is a well known principle of civil law that a person born into or following one religion continues to belong to such religion subject to conversion to another religion. Conversion to another religion basically requires change of faith; it is essentially a matter of conviction. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. Conversion to another religion basically requires change of faith; it is essentially a matter of conviction. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. The conversion from one religion to another religion is a very major decision in one’s life and for proving such a conversion, it is incumbent upon the appellant to place on record complete facts and documentary material, if any, to satisfy the court that based on such facts and supporting material, the appellant had undergone change of religion. Change of religion cannot be believed merely on vague oral allegations unsupported by any documentary or uncorroborated oral evidence. 16. The appellant in the present case had herself placed on record a copy of the letter dated 3.12.92 addressed by Arya Samaj Mandir to the respondent which clearly states that no record of the alleged marriage between the appellant and the respondent was available in the said Mandir. The contention of the appellant that no weightage can be given to this letter on the ground that she had merely placed the said letter on record without relying upon the same, is devoid of any force. Once the appellant has claimed that she had converted herself to Hindu religion just prior to the solemnization of the marriage, then she ought to have summoned the records from Arya Samaj Mandir to prove the said fact. The appellant has also not been consistent in her evidence as to how and in what manner the alleged conversion had taken place. No photographs of the alleged conversion or solemnization of the alleged marriage were placed on record by the appellant although she claimed that about 17 photographs were taken at that time. No friends or relatives were produced by the appellant though in the evidence the appellant claimed that the ceremonies of conversion and solemnization of marriage were performed in the presence of friends. Affidavit of one Chitra Gupta was placed on record by the appellant who in her affidavit deposed that she had attended the marriage of the parties in Arya Samaj Mandir, Defence Colony, but she was also not produced as a witness by the appellant. Affidavit of one Chitra Gupta was placed on record by the appellant who in her affidavit deposed that she had attended the marriage of the parties in Arya Samaj Mandir, Defence Colony, but she was also not produced as a witness by the appellant. It is also a matter of record that the said Chitra Gupta as well as the appellant herself in their respective affidavits are totally silent with regard to any such conversion that took place before the alleged marriage. It is also surprising to know that in her petition filed under Section 125 Cr.P.C., as well as in her legal notice dated 9.6.1989, she did not disclose about such conversion from Islam to Hindu religion and further also the place of her marriage has been disclosed as D-212, Pragati Vihar Hostel, New Delhi. The explanation of the appellant to justify this difference that it was a fault on the part of her counsel who drafted the legal notice and the petition is far from satisfaction. The appellant sought to introduce certain new facts with regard to her religion and status at the time of the filing of the petition after certain revelations were made by the respondent in his written statement but such amendment was declined by the learned trial court and the order of the learned trial court declining such amendment was not challenged by the appellant. 17. Here it would be useful to refer to the division bench judgment of the Bombay High Court in the case of Dr. Abdur Rahim Undre vs. Smt. Padma Abdur Rahim Undre AIR 1982 Bom 341 where it was observed as under: "Thus it appears that for a conversion there should be a declaration of one's belief and the said declaration should be in such a way that is should be known to those whom it may interest. If a public declaration is made by a person that he has ceased to belong to one religion and is accepting another religion, he will be taken as professing the other religion. ……… Thus in case of a conversion there should be a change of heart and honest conviction in the tenets of new religion in lieu of tenets of the original religion. ……… Thus in case of a conversion there should be a change of heart and honest conviction in the tenets of new religion in lieu of tenets of the original religion. If a ceremony of conversion is gone into conscientiously after such an honest conviction, thee alone there is a conversion of faith or it can be said that a person is professing another religion. In case of conversion from one religion to another a strict proof is required and it cannot be easily inferred. More so when a person converted denies even the factum of conversion. As to whether there in fact a conversion or not must depend on facts and circumstances of each case and not general rule can be laid down in that behalf." 18. It would be evident from the aforesaid observations that that the Hon’ble Division Bench of Bombay High Court laid emphasis as to the requirement of a strict proof and that the conversion from one religion to another not to be easily inferred. Adverting to the facts of the present case, it is manifest that the appellant has failed to prove that she had renounced Islam religion so as to embrace Hindu religion prior to the solemnization of the alleged marriage. The appellant was casual in her approach as she never pleaded in her petition her alleged conversion from Islam to Hinduism. 19. With the above said finding and considering it in the light of the Preamble to the Hindu Marriage Act and Section 2 & 5 of the same, the legislature in unambiguous terms has made it clear that the provisions of the Hindu Marriage Act are applicable only to Hindus and not to other religions. The appellant in the facts of the present case remained a Muslim even on the date of her alleged marriage and therefore, she being a Muslim by religion cannot invoke the provisions of the Hindu Marriage Act, i.e. Section 13(1) (ia) & (ib) and Section 25 of the Hindu Marriage Act. It would be appropriate to refer to the judgment in the case Gullipilli Sowria Raj (Supra) where the Apex court has held as under: "Section 2 of the Act which deals with application of the Act, and has been reproduced hereinabove, reinforces the said proposition.. It would be appropriate to refer to the judgment in the case Gullipilli Sowria Raj (Supra) where the Apex court has held as under: "Section 2 of the Act which deals with application of the Act, and has been reproduced hereinabove, reinforces the said proposition.. Section 5 of the Act there after also makes it clear that a marriage may be solemnized between any two Hindus if the conditions contained in the said Section were fulfilled. The usage of the expression `may' in the opening line of the Section, in our view, does not make the provision of Section 5 optional. On the other hand, it in positive terms, indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. In other words, in the event the conditions remain unfulfilled, a marriage between two Hindus could not be solemnized. The expression `may' used in the opening words of Section 5 is not directory, as has been sought to be argued, but mandatory and non-fulfilment thereof would not permit a marriage under the Act between two Hindus. Section 7 of the 1955 Act is to be read along with Section 5 in that a Hindu marriage, as understood under Section 5, could be solemnized according to the ceremonies indicated therein. In the facts pleaded by the respondent in her application under Section 12(1)(c) of the 1955 Act and the admission of the appellant that he was and still is a Christian belonging to the Roman Catholic denomination, the marriage solemnized in accordance with Hindu customs was a nullity and its registration under Section 8 of the Act could not and/or did not validate the same. In our view, the High Court rightly allowed the appeal preferred by the respondent herein and the judgment and order of the High Court does not warrant any interference." 20. In our view, the High Court rightly allowed the appeal preferred by the respondent herein and the judgment and order of the High Court does not warrant any interference." 20. While on the issue it would also be befitting to mention that a Division Bench of Kerala High Court in the case of In Re: Betsy and Sadanandan 2009(4)KLT 631 decided on 16th October, 2009, while dealing with a joint application moved by the parties for dissolution of marriage under section 13B of the Hindu Marriage Act, 1955, examined the issue as to how, in the absence of any specific procedure prescribed under the Hindu law, custom and statute, the Court may hold whether there has been conversion or re-conversion to Hinduism. The Hon’ble High Court invited the attention of the Law Commission to the observations made in paragraph 15 in order to address the need for legislation on the issue. The High Court observed that: "15. We must, in this context, note that the stipulation in Clause (c) of Explanation to Section 2(1) of the Hindu Marriage Act which shows that a conversion or reconversion to Hinduism can take place and the absence of any stipulations of law or specific recognised practices to facilitate such conversion is causing great difficulties to the parties. It should not be impossible for the Legislature to prescribe the methods by which a person, without any difficulty, can effectuate such conversion. He should not be left before courts to adduce exhaustive evidence to prove such conversion. The law which recognizes such conversion must also be in a position to prescribe how the parties, without the necessity to get involved in unnecessary and time consuming litigations, can declare to the world such conversion. Appropriate stipulations of law appear to be necessary on this aspect in respect of conversions to and from all religions. Simple statutory stipulation applicable for all religions of filing of an affidavit of solemn declaration before a registering (statutory) authority (who must give the declarant sufficient time to dispassionately contemplate and confirm the declaration) and acceptance and recording of such reconfirmed declaration by the authority in a register maintained under the statute for that purpose after elapse of a stipulated period and after calling for and hearing of objections if any of any interested party, will make the procedure simple, user friendly and less cumbersome. Such stipulations will save many a citizen like the petitioners herein of the tedious obligation to get involved in time consuming and unnecessary legal proceedings and litigation. Religious conversions may appear to many in the Indian mindset to be unnecessary, puerile and negation of the very concept of respect for both religions as also the followers of such religion. But certainly the freedom of faith guaranteed by the Constitution may not justify the negation of the right to pursue the chosen faith, by conversion where necessary. Such a law when it is enacted ultimately shall, we do hope, also respect the rights of the citizen in this secular country to declare that he belongs to no religion at all or that he does belong to humanity with no walls of religion to seggregate him from any other." 21. India is a melting pot of the religions of the world maintaining a delicate balance between its myriad religious communities and religious tolerance. By virtue of Article 25 of the Constitution of India everyone is free to practice one’s own religion making India the most secular country in the world. However, at this strange point of time, religious conversions have gathered many eyeballs as it is being increasingly used for anything but the primary reason for conversion; spiritual advancement. The basic focus to convert from one religion to another is to seek God from another platform but unfortunately today proselytization is increasingly done for reaping benefits and in cases like the present one, an afterthought to maneuver the law. In number of cases the Supreme Court has held that religion was not merely a matter of faith and belief, but also included rituals, ceremonies and religious practices according to the religious tenets of a religion. But apostasy produces far reaching results in the relations of husband and wife, where it is also a ground or divorce under the Hindu Marriage Act and raises controversies like the present one demanding a mechanism in place to stop people from fishing in troubled waters. 22. But apostasy produces far reaching results in the relations of husband and wife, where it is also a ground or divorce under the Hindu Marriage Act and raises controversies like the present one demanding a mechanism in place to stop people from fishing in troubled waters. 22. This court in the case at hand when also faced with the similar catch 22 situation seconds the suggestion of the Hon’ble Division Bench of the Kerala High Court that the need for a legislative intervention in this regard seems imperative in the present circumstances and to curb the controversies and court battles arising on the premise of the convert’s religious status in matrimonial cases. 23. So far the appeal filed challenging the order u/s 25 of the HMA by the appellant No.2 Chandni Sharma D/o of appellant no.1 is concerned, the same is also devoid of any merit because the remedy to claim permanent alimony and maintenance u/s 25 HMA was not available to her. 24. In the light of the above discussion, this court does not find any infirmity, illegality or perversity in the impugned orders passed by the learned trial court. Since the appellant has failed to prove her conversion from Islam to Hinduism and resultantly has closed the doors for any relief under the Hindu Marriage Act, therefore, this court would not go into any other aspect of both the appeals and rest the matter at this juncture itself. 25. Hence, there is no merit in both the appeals and hence the same are hereby dismissed.