Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 1232 (GUJ)

Touqir Salam Pathan v. State of Gujarat

2018-11-22

VIPUL M.PANCHOLI

body2018
JUDGMENT : V.M. PANCHOLI, J. 1. Rule. Mr. Rohan Yagnik, learned Assistant Government Pleader, waives service of notice of Rule for respondent No. 1 and Mr. Nilesh M. Shah, learned advocate, waives service of notice of Rule for respondent No. 2. 2. This petition is filed under Article 226 of the Constitution of India, in which, the petitioners have prayed for quashing and setting aside the order dated 16.02.2016 passed by respondent No. 2, order dated 29.04.2016 passed by respondent No. 1 and the order dated 22.08.2017 passed by the 4th (Ad-hoc) Additional District Judge, Junagadh, in Regular Civil Appeal No. 25 of 2017. The petitioners also prayed that direction be given to respondent No. 2 to register their marriage under the provisions of the Gujarat Registration of Marriages Act, 2006 (hereinafter referred to as "the Act of 2006"). 3. Heard Mr. Nikunt K. Raval, learned advocate for the petitioners, Mr. Rohan Yagnik, learned Assistant Government Pleader for respondent No. 1 and Mr. Nilesh M. Shah, learned advocate for respondent No. 2. 4. Learned advocate for the petitioners submitted that petitioner No. 2 is a citizen of Pakistan and she has been granted permission to reside in Gujarat. The marriage of petitioner No. 2 was solemnized with petitioner No. 1, who is a resident of Junagadh. The marriage had taken place on 07.12.2007 as per the Muslim rituals and customs at Junagadh. Learned advocate has referred copies of the Marriage Affidavit, Birth Certificates and relevant documents annexed with the petition. At this stage, learned advocate for the petitioners submitted that the petitioners are residing together along with their children i.e. son aged about 8 years and daughter aged about 18 months. 4.1 Learned advocate Mr. Raval further submits that the petitioners submitted an application on 08.02.2016 for registration of their marriage under the provisions of the Act of 2006 before respondent No. 2. However, respondent No. 2 rejected the said application on the ground that as per the evidence produced by the petitioners on the date of their marriage, petitioner No. 2 had not completed 18 years of age and petitioner No. 2 has not produced Ration Card, Aadhar Card or Election Card. It is submitted that aforesaid order passed by respondent No. 2 was challenged by filing an appeal before respondent No. 1. However, respondent No. 1 has also dismissed the appeal. It is submitted that aforesaid order passed by respondent No. 2 was challenged by filing an appeal before respondent No. 1. However, respondent No. 1 has also dismissed the appeal. The petitioners, therefore, preferred Regular Civil Appeal No. 25 of 2017 before the concerned District Court. However, 4th (Ad-hoc) Additional District Judge, Junagadh, dismissed the said appeal. Therefore, the petitioners have filed the present petition. 4.2 Learned advocate Mr. Raval assailed the aforesaid orders mainly on the ground that as per the Mohammedan Law, more particularly, Article 251, every Mohammedan of sound mind, who has attained puberty, may enter into a contract of marriage. It is further submitted that Explanation of Article 251 further provides that puberty is presumed, in the absence of evidence, on completion of the age of 15 years. In the present case, admittedly, petitioner No. 2 had completed 16 years and 10 months i.e. more than 15 years and, therefore, as per the Mohammedan Law, the marriage of the petitioners is a valid marriage. 4.3 Learned advocate Mr. Raval, thereafter, referred the provisions contained in Section 8 of the Act of 2006 and submitted that the Registrar can refuse the registration of marriage, if he is satisfied or has reason to believe that the marriage between the parties is not performed in accordance with the personal law of the parties. In the present case, marriage between the parties is performed in accordance with the personal law and, therefore, respondent No. 2 has wrongly rejected the application of the petitioners on the ground that petitioner No. 2 has not completed 18 years of age on the date of the marriage. 4.4 It is further contended that as petitioner No. 2 is a citizen of Pakistan and is granted permission to reside in Gujarat, Aadhar Card, Election Card and other documents with regard to residential proof are not issued to petitioner No. 2. However, it is not in dispute that petitioner No. 2 is residing with her husband and children at Junagadh and, therefore, refusal to grant registration of marriage on that count is also illegal. He, therefore, urged that the impugned orders be set aside. 4.5 learned advocate for the petitioners has placed reliance upon the decision rendered by this Court in the case of Alimamad Mersha Shaikh Vs. State of Gujarat reported in (2006) 3 GLR 2472 , in support of his submissions. 5. He, therefore, urged that the impugned orders be set aside. 4.5 learned advocate for the petitioners has placed reliance upon the decision rendered by this Court in the case of Alimamad Mersha Shaikh Vs. State of Gujarat reported in (2006) 3 GLR 2472 , in support of his submissions. 5. On the other hand, learned advocate appearing for respondent No. 2 has submitted that respondent No. 2 has not committed any error while refusing to register the marriage of the petitioners on the ground that petitioner No. 2 had not completed 18 years of age on the date of the marriage and documentary evidence with regard to residence of petitioner No. 2 were not produced. 6. Similarly, learned Assistant Government Pleader has also supported the reasoning recorded by respondent No. 1 as well as the concerned Civil Court while dismissing the appeal. He, therefore, urged that this petition be dismissed. 7. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it is revealed that the marriage of petitioner No. 2 solemnized with petitioner No. 1 on 07.12.2007 as per Muslim rites and rituals. An affidavit to that effect is filed by both the petitioners. Copy of the same is produced at Page-29 of the compilation. Petitioner No. 1 is a resident of Junagadh whereas petitioner No. 2 is a citizen of Pakistan and is granted permission to reside in the State of Gujarat. At the time of marriage in the year 2007, petitioner No. 2 had completed the age of 16 years and 10 months i.e. more than 15 years of age. 8. In the case of Alimamad Mersha Shaikh Vs. State of Gujarat (supra), this Court has considered relevant provisions of the Mohammedan Law and observed in Paragraphs-5 and 5.1 as under: "5. I have carefully considered the rival submissions. So far the provisions of Mohamedan law are concerned, Article 251 deals with capacity for marriage. It reads as under:- 251. Capacity for marriage.-- (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. (3) A marriage of a Mahomedan who is of sound mind and has attained puberty, is void, if it is brought about without his consent. (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. (3) A marriage of a Mahomedan who is of sound mind and has attained puberty, is void, if it is brought about without his consent. Explanation "Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. This provision clearly shows that every Mahomedan who has attained puberty, is capable to validly contract marriage. The explanation of puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. Therefore, every Mahomedan who has attained puberty can enter into a contract of marriage even if there is no consent of the parents or guardians. Further in absence of evidence, puberty can be presumed on completion of the age of fifteen years. 5.1. Article 348 deals with age of majority. It reads as under:- 348. Age of majority.- In this Chapter, minor means a person who has not completed the age of eighteen years. It shows that a person who has not completed 18 years of age is minor. However, in the commentary on the text book Mulla, Principles of Mahomedan Law, 19th Edition, by M. Hidayatullah, it is stated as under:- Age of majority under the Mahomedan law.-According to the Islamic law, the minority of a male or female terminates when he or she attains puberty. Among the Hanafis and the Shias, puberty is presumed on the completion of the fifteenth year. Under the Indian Majority Act (Section 3), minority ceases on the completion of the eighteenth year, unless a guardian of the person or property or both of the minor has been or shall be appointed before the minor has attained the age of eighteen years, or the property of the minor is under the superintendence of a Court of Wards, in which case the age of minority is prolonged until the minor has completed the age of twenty-one years. Under the Mahomedan law any person who has attained puberty is entitled to act in all matters affecting his or her status or his or her property. But that law has been materially altered by the Indian Majority Act, and the only matters in which a Mahomedan is now entitled to act on attaining the age of fifteen years are (1) marriage, (2) dower and (3) divorce. But that law has been materially altered by the Indian Majority Act, and the only matters in which a Mahomedan is now entitled to act on attaining the age of fifteen years are (1) marriage, (2) dower and (3) divorce. In all other matters his minority continues until the completion at least of eighteen years. Until then the Court has power to appoint a guardian of his person or property or both under the Guardians and Wards Act. Thus, it is clear that when a person has attained the puberty and when he or she has willingly contracted marriage, it is a valid marriage under Mohamedan Law. This question arose before the Patna High Court and the Division Bench in the case of Moh. Idris [supra] has observed as under:- 5. So far as the factum of marriage is concerned, I may say at the outset that in the instant case it has not been disputed at any stage. From the order of the learned Sessions Judge, it does not appear that the petitioner disputed the factum of marriage. His only assertion since the very beginning was that she is below 15 years of age, and, as such, she could not marry without the consent of her guardian. Even before this Court in the writ application there is no assertion that in fact there has been no marriage. This aspect of the matter has been considered by a Bench in the case of Mst. Bashiran v. Mohammad Hussain, AIR 1941 Oudh 284 wherein it was observed:- ...It is well settled that the Indian Majority Act which fixes the age of 18 years, at which a minor becomes a major, exempt marriage and divorce. The result will be that respondent No. 5 on the relevant date may be minor under the Indian Majority Act, or within the meaning of Section 361 of the Indian Penal Code, but certainly she could have married without the consent of her natural guardian. The necessary corollary to this will be that whatever may be the fate of the criminal case, which has been lodged by the petitioner for prosecuting respondent No. 4 for kidnapping, after the marriage, respondent No. 4 will be deemed to be the husband, and as such, entitled to live with respondent No. 5. The necessary corollary to this will be that whatever may be the fate of the criminal case, which has been lodged by the petitioner for prosecuting respondent No. 4 for kidnapping, after the marriage, respondent No. 4 will be deemed to be the husband, and as such, entitled to live with respondent No. 5. In such a situation, in my opinion, learned Sessions Judge has not committed any error in directing the release of respondent No. 5 saying that she was at liberty to live with respondent No. 4 whom she claims to have married. It has further observed as under:- 6. I have not been able to appreciate under what provision of law respondent No. 5 was taken in custody because she is not alleged to have committed any offence, and, as such, her detention in custody was without any authority in law. We are informed that even today she has been kept in Bihar State [North] Care Home, Patna City-6 under some order passed either by the learned Magistrate or by the Sessions Judge subsequently. As she is not an accused in any case there is no justification for detaining her in any Care Home. She should be allowed to go with respondent No. 4 as directed by the learned Sessions Judge. The aforesaid observations completely support the submission advanced by Mr. Pardiwala. Considering the provisions of law as well as the ratio laid down by the Division Bench of Patna High Court, I also accept the said submission of Mr. Pardiwala. The sum total of aforesaid discussion on Articles 251 and 348 of The Mahomedan Law is that for the purpose of contracting marriage a person is considered to be major when he or she attains puberty and such person can contract marriage even without the consent of the guardian if he or she is of sound mind and not lunatic. In absence of any evidence, puberty can be presumed on completion of the age of fifteen years." 9. Thus, from the aforesaid decision, it can be said that Article 251 of the Mohammedan Law provides that every Mohammedan of sound mind, who has attained puberty, may enter into a contract of marriage. Explanation of the said Article specifically provides that puberty is presumed, in absence of evidence, on completion of age of 15 years. Thus, from the aforesaid decision, it can be said that Article 251 of the Mohammedan Law provides that every Mohammedan of sound mind, who has attained puberty, may enter into a contract of marriage. Explanation of the said Article specifically provides that puberty is presumed, in absence of evidence, on completion of age of 15 years. In the present case, admittedly, petitioner No. 2 had completed 15 years of age and, therefore, she was capable to validly contract marriage. Thus, the marriage of the petitioners as per the Mohammedan Law can be considered to be a valid marriage. 10. At this stage, the provisions contained in Section 8 of the Act of 2006 is also required to be referred. Section 8 of the Act of 2006 provides as under:- "Section 8 (1) Where the Registrar, before whom the memorandum is prescribed under section 5 or 6, on scrutiny of the documents submitted with the memorandum or, on the other facts noticed or brought to his notice, is satisfied or has reason to believe that,- (a) the marriage between the parties is not performed in accordance with the personal law of the parties; or (b) the identity of the parties or the witnesses or the persons testifying the identity of the parties and the solemnization of the marriage is not established beyond reasonable doubt; or (c) the documents tendered before him do not prove the marital status of the parties. he may, after hearing the parties and recording the reasons in writing, refuse to register the marriage and may- (i) call upon the parties to produce such further information or documents as deemed necessary, for establishing the identity of the parties and the witnesses or correctness of the information or documents presented to him, or (ii) if deemed necessary, also refer the papers to the local police station within whose jurisdiction the parties reside, for verification. (2) Where on further verification as provided in sub-section (1), the Registrar is satisfied that there is no objection to register the marriage, he may register the same. If in the opinion of the Registrar, the marriage is not fit for registration, he may pass an order of refusal in writing, recording the reasons therefore and send the duplicate copy thereof to the Registrar-General." 11. If in the opinion of the Registrar, the marriage is not fit for registration, he may pass an order of refusal in writing, recording the reasons therefore and send the duplicate copy thereof to the Registrar-General." 11. Thus, from the aforesaid provision, it can be said that when the memorandum of marriage is presented under Section 5 or 6 of the Act before the Registrar, he can refuse the registration of marriage, if he is satisfied or has reason to believe that the marriage between the parties is not performed in accordance with the personal law of the parties. However, in the present case, the marriage between the parties i.e. petitioner Nos. 1 and 2 is performed in accordance with their personal law where the contract of marriage can be entered into on attaining puberty i.e. on completion of age of 15 years. Thus, the refusal on the part of respondent No. 2 to register the marriage of the petitioners on the ground that petitioner No. 2 had not completed 18 years of age on the date of the marriage, is not as per the provisions of the Act of 2006. 12. Similarly, another ground mentioned by respondent No. 2, while rejecting the application, is that petitioner No. 2 has failed to produce necessary evidence with regard to her residence. However, it is the specific case of petitioner No. 2 that she is a citizen of Pakistan and permitted to reside in the State of Gujarat at Junagadh. She is residing with her husband i.e. petitioner No. 1 since her marriage. However, since she is a citizen of Pakistan, Aadhar Card and Election Card are not issued by the authority in her favour. At this stage, it is also required to be noted that if the provisions contained in Section 8 of the Act of 2006 are carefully examined, the Registrar cannot refuse registration of marriage on the ground of not providing residential proof like Aadhar Card, Election Card etc. 13. Thus, the order passed by respondent No. 2 is required to be quashed and set aside. Similarly, respondent No. 1 as well as the concerned Civil Court have also failed to consider the aforesaid provisions of the Act of 2006 and wrongly dismissed the appeal filed by the petitioners and, therefore, the said orders are also required to be set aside. 14. Similarly, respondent No. 1 as well as the concerned Civil Court have also failed to consider the aforesaid provisions of the Act of 2006 and wrongly dismissed the appeal filed by the petitioners and, therefore, the said orders are also required to be set aside. 14. In view of the aforesaid discussion, the order dated 16.02.2016 passed by respondent No. 2, order dated 29.04.2016 passed by respondent No. 1 and the order dated 22.08.2017 passed by the 4th (Ad-hoc) Additional District Judge, Junagadh, in Regular Civil Appeal No. 25 of 2017 are quashed and set aside. Respondent No. 2 is directed to register the marriage of the petitioners. 15. Accordingly, the petition is allowed. Rule is made absolute, to the aforesaid extent.