Society Ltd. vs Zopadpatti
2012 Latest Caselaw 403 Bom

                                      1/20
                                                               (FCA-152.2004)

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION




                                                                        
               FAMILY COURT APPEAL NO. 152 OF 2004




                                                
    "xyz"                              )
    Age - 25 years, Occupation:        )
    Household, residing at 401         )
    Blue Arch Co-op. Housing           )




                                               
    Society Ltd., Vile Parle (East)    )
    Mumbai - 400 099                   )    ...Appellant
                                       (Original Petitioner)
              V/s




                                      
    Mohamed Aslam Sheikh               )
    alias Raju, Age - 35 years,
                        ig             )
    Occupation: Business,              )
    residing at Sitladevi Refuges      )
                      
    Zopadpatti, Near Saibaba           )
    Tower, Room No.2, Behind           )
    D.N. Nagar Police Station,         )
    Andheri - 400 064                  )    ..... Respondent

(Original Respondent)

Mr. P.K. Dhakephalkar, Senior Counsel with Mrs. Gauri Godse for the Appellant.

None for the Respondent.

CORAM: V. M. KANADE & P.D. KODE JJ.

Judgment reserved on 21/11/2012 Judgment pronounced on 29/11/2012

ORAL JUDGMENT: (Per V.M. Kanade, J.)

1. Heard the learned Senior Counsel appearing on behalf of the Appellant. None appears on behalf of the Respondent though he is served.

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2. Appellant in this Family Court Appeal is challenging the judgment and decree passed by the learned Principal Judge,

Family Court, Mumbai dated 17/11/2004 whereby the Petition

filed by the Appellant for declaration that she is not a legally wedded wife of the Respondent and that she had never married the Respondent and the purported marriage be

declared as null and void. The Family Court Appeal was admitted on 11/1/2005. After the appeal was admitted, Respondent was served and he engaged an advocate to

appear on his behalf.

ig Vakalatnama was filed by the said advocate which was duly signed by the Respondent. His advocate however expired in 2009 and therefore notice was

issued to him to enable him to appoint another advocate. Despite best efforts taken by the Appellant to serve the Respondent, he could not be served. An application was

made therefore by the Appellant to serve the Respondent by

substituted service. Accordingly, permission was granted to the Appellant to serve the Respondent by substituted

service. The Bailiff who had gone for the purpose of pasting notice on the outer door of the Respondent's house, made a remark that "Zopadpatti of the Respondent is demolished and new building is constructed. However, Respondent is not

found residing there and his whereabouts are also not known. Hence, the Court's notice was affixed on the main entrance of the Building." This Court further passed an order dated 11/10/2012 by way of abundant caution and directed the Appellant to publish a notice in two news-papers; one in

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English and the other in vernacular, stating therein that the appeal shall be disposed of finally on 29/10/2012 at 3.00 P.M.

We had directed that the notice should be given in news-

paper by concealing the name of the Appellant. Accordingly, the said notice was published and, thereafter, the matter was heard by us since the Respondent failed to appear before us

despite service of notice. Despite service of that notice, Respondent has not appeared before us. The appeal is pending since 2004 and, therefore, we have heard the

learned Senior Counsel appearing on behalf of the Appellant.

3. Brief facts are as under:-

4. Appellant got engaged to Mr. Vishal Dave on 3/8/2003. On 8/12/2003, she got married to Vishal Dave according to

Hindu Rites and went to live with him and her in-laws. On

21/1/2004, Respondent surreptitiously dropped a paper between the inner door and outer safety door of the

Appellant's parents residence purporting to be a marriage certificate dated 4/1/2001 under the Registration of Marriages Act, 1998 with the name of Appellant's brother-in- law and also a telephone number was mentioned on the

reverse side of the said marriage certificate. Since the said contents of the said certificate were false and the certificate was fabricated and since the Respondent made an attempt to contact the Appellant on telephone, she was constrained to file Petition No. B-9 of 2004 in the Family Court at Bandra,

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seeking declaration and injunction. Interim injunction was passed and the Respondent was restrained from entering the

Appellant's residence at her in-laws place or her parent's

place and also from making telephone calls accosting or attempting to accost her or her family members. Undertaking was filed by Respondent that he would abide by

the restraining order.

5. On 22/09/2004, Respondent filed Written Statement and

denied the claim of the Appellant.

ig Various other false contentions were raised in the said Written Statement. On 29/9/2004, issues were framed and documents relating to

the purported marriage were exhibited and signatures on the same were admitted. Trial Court directed the Respondent to lead evidence first. Trial Court further permitted the

Respondent to treat the Written Statement which was filed

by him as an affidavit in lieu of evidence and further affidavits of the Respondent in reply and sur-rejoinder to the

interim application as an affidavit in lieu of evidence. Respondent was cross-examined by the Appellant's advocate. Two other witnesses were examined by Respondent viz. Maulana Abdul Hasan Rahi and Advocate

Abdul Aziz Memon. Thereafter, affidavit of examination-in- chief of the Appellant was filed. She was cross-examined by the Respondent in person. Appellant examined one Quazi Syed Mehtab Ahmed Hussaini, the Chief Quazi of Mumbai and also an Advocate practicing in Mumbai as her witness.

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Family Court dismissed the Petition filed by the Appellant and further directed the Appellant to pay costs of Rs 25,000/-.

The learned Judge was pleased to grant declaration in favour

of the Respondent that since the marriage between the Appellant and the Respondent could not be declared as null and void and subsists, he was entitled to his legal rights as

legally wedded husband of the Appellant as prayed by him in para 22 of his Written Statement. This declaration was granted in favour of the Respondent though he had neither

filed any cross petition or counter-claim.

ig Against the said judgment and order, this appeal was filed which was admitted and order of the Trial Court was stayed.

6. Mr. Dhakephalkar, the learned Senior Counsel appearing on behalf of the Appellant submitted that no valid marriage

could have taken place with the Respondent as the Appellant

was Hindu and she never converted herself and, therefore, the Respondent fraudulently procured the marriage

certificate. He further submitted that the learned judge erred in holding that the marriage between the Appellant and the Respondent was solemnized under the Special Marriage Act 1954 though it was not even the case of the Respondent

that the marriage was solemnized under the Special Marriage Act particularly when the Respondent was relying upon the alleged Nikahnama under the Muslim Law and subsequent registration of the alleged marriage under the Muslim Law after the alleged conversion of the Appellant. He further

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submitted that there could never be a valid marriage between the Appellant and the Respondent as both of them

belong to different religions, the Appellant being Hindu and

the Respondent being Muslim and without there being valid conversion of religion by the Appellant, there could never be any valid marriage as claimed by the Respondent. It was

submitted that the alleged Nikahnama and alleged conversion does not contemplate valid conversion as per Mohammedan Law. He further submitted that if a conversion

is colourable one for the purpose of perpetrating a fraud

upon law and evidence of surrounding facts is such which would run counter to the presumption of conversion to Islam

then such a conversion is not valid conversion under the Mohammedan Law. Reliance was placed on the Division Bench of this Court in Dr. Abdur vs. Padma1. He further

submitted that under the Mohammedan Law, it was essential

that there should be a proposal made by or on behalf of one of the parties to the marriage and acceptance of the proposal

by or on behalf of the other, in the presence and hearing of the two male or one male and two female witnesses, who must be sane and adult Mohammedans. He submitted that there was nothing on record to show that the said procedure

was followed. He further submitted that deposition of Chief Quazi of Mumbai (witness No.2 of Appellant) has gone unrebutted. He submitted that no valid ceremony of valid conversion and valid marriage was performed at any time.

1 AIR 1982 Bombay 341

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He submitted that the Family Court Judge had erred in holding that execution of Memorandum of Marriage was

sufficient to prove the marriage between the Appellant as per

the Special Marriage Act.

7. It was submitted that the case of the Appellant was

that she joined Bhavan's College and used to speak to the Respondent believing that he was a student. According to the Appellant, sometime in the year 2000, she decided to

join B. Ed. College viz. Hansraj Jeevandas Institute of

Education at Khar which required affidavit to secure admission for 50% seats reserved for Gujarati students.

According to the Appellant, Respondent who was present in the discussion of the Appellant with her friends, offered to help and he fixed an appointment on 4/1/2001 for getting the

affidavit and took her certificates and ration card for the

purpose of affidavit. Appellant's case is that there were several shops and she was kept waiting in front of one shop

and her signatures were taken hurriedly on several papers in front of an advocate who was sitting there and some persons were standing and it was a very small and crowded office. It is the case of the Appellant that the said papers signed, later

on appeared that they were related to the said marriage certificate. Since the Appellant could secure admission for B.Ed. by submitting Community Certificate, she did not require the affidavit.

8. We have perused the judgment and order of the Trial

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Court and also oral and documentary evidence which has been brought on record. It is not disputed that Appellant is

Hindu and Respondent is Muslim. Under the Mohammedan

Law, if one person is Mohammedan and other belongs to different religion then there can be no valid marriage, unless the person from other religion gets converted to Islam and

first there is a ceremony of conversion which ceremony should be performed by the parties only for the purpose of getting married under Mohammedan Law. In other words, it

should not be a colourable exercise with an ulterior motive of

getting married under the Mohammedan Law but the person belonging to other religion should accept the Muslim religion

with heart and soul and only then there could be a valid conversion and only thereafter, after the ceremonies which are laid down in Mohammedan Law are performed, there

could be a valid Nikahnama. Division Bench of this Court

had an occasion to consider the said aspect of marriage under Mohammedan Law in Dr. Abdur Rahim Undre vs. Smt.

Padma Abdur Rahim Undre1. Division Bench in the said judgment has observed as under:-

"26. The next contention which requires

consideration in this appeal is to find out as to whether the plaintiff has proved that the defendant- wife was converted to Islam and thereafter a Nikah ceremony took place."

1 AIR 1982 Bombay 341

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"27. 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. To say the least it

is a matter of conviction. According to Mulla's Principle of Mohammedan Law any person who professes Mohammedan religion that is, he

acknowledges that there is but one God and that

Mohammad is his prophet is a Mohammedan. Such a person may be a Mohammedan by birth or he may

be a Mohammedan by conversion. It is not necessary that he should observe any particular rites or ceremony to be an orthodox believer in that

religion; no Court can test or gauge sincerity of

religious belief. It is sufficient if he professes Mohammedan religion in the sense that he accepts

prophetic grant of Mohammedan (section 19, Chapter 2, page 19 of Mulla's Principles of Mohammedan Law). Thus the real test is of professing Mohammedan religion. As to what is the

true import of the term profess fell for consideration of the Supreme Court in Punjabrao V. D. P. Meshram 1965 SC 1179. In para 13 of the said decision the Supreme Court has observed as under:

"13. What cl. (3) of the Constitution (Scheduled

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Castes) Order, 1950 contemplates is that for a person to be treated as one belonging to a

Scheduled Caste within the meaning of that Order

he must be one who professes either Hindu or Sikh religion. The High Court, following its earlier decision in Narayan Waktu v. Punjabrao, AIR 1958 Bom 296

has said that the meaning of the phrase "professes a religion" in the aforementioned provision is "to enter publicly in to a religious state" and that for

this purpose a mere declaration by a person that he

has ceased to belong to a particular religion and embraced another religion would not be sufficient.

The meanings of the word "profess" have been given thus in Webster's New World Dictionary: "to avow publicly; to make an open declaration of .......

to declare one's belief in as to profess Christ. To

accept into a religious order" The meanings given in the Shorter Oxford Dictionary are more or less the

same. It seems to us that the meaning 'to declare one's belief in as to profess christ' is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religous

belief and consequently also upon a change in religious belief. It would thus follow that a declaration of one's belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore if a public

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declaration is made by a person that he has ceased to belong to his old religion and has accepted

another religion he will be taken as professing the

other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was

efficacious. The word 'profess' in the Presidential Order appears to have been used in the sense an open declaration or practice by a person of the

Hindu for the Sikh religion. Where, therefore, a

person says, on the contrary that he has ceased to be Hindu he cannot derive any benefit from that

order."

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 it 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."

"28. In Rakeya Bibi v. Anil Kumar Mukherjee ILR 1948 (2) CAL 119, Calcutta High Court had an occasion to consider this aspect of the matter in the context of conversion to Islam. Having held that the plaintiff in that case offered herself for conversion

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and went through the necessary formalities, the Calcutta High Court observed as under:

"The question, however, stiff remains whether her

conversion was a bona fide one or a mere device adopted for the purpose of avoiding the marriage. Mr. Das, who appeared for her, contended on the

authority of certain observations made by Ormond J. In the case of Ayesh Bibi v. Subodh chandra

Chakrabarti [ILR (1945) 2 CAL 405] : [AIR 1949 CAL 436] that the question of bona fides was wholly

irrelevant and, further that no court could determine the bona fides or otherwise of a person's change of

faith. We entirely dissent from those propositions. It may be that a court cannot test or gauge the

sincerely of religious belief; or that, where there is no question of the genuineness or a Person's belief

in a certain religion, a court cannot measure its depth or determine whether it is an intelligent

conviction or an ignorant and superficial fancy. But a court can and does find the true intention of men lying behind their acts and one certainly find from

the circumstances of a case whether a pretended conversion was really a means to some further end. We can see no reason to hold that it is in the nature of things impossible for a court of law to determine whether a conversion was bona fide. Nor can we agree that the question of bona fides is immaterial.

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In the case of Skinner v. Skinner [(1897) ILR 25 CAL 537] the Privy Council, while referring to the

possibility that a change of religion on the part of

both the spouses might have the effect of altering rights incidental to the marriage, was careful to add the qualification that such change must be made

"honestly" and "without any intent to commit a fraud upon the law". Indeed, it seems to us to be elementary that if a conversion is not inspired by

religious feeling and undergone for its own sake, but

is resorted to merely with the object of creating a ground for some claim of right, a court of law cannot

recognise it as a good basis for such claim but must hold that no lawful foundation of the claim has been proved. Where conversion gives a legal right, to go

through a mock conversion and set it up as a basis

of that right is to commit a fraud upon the law. We are clearly of opinion that where a party puts

forward his conversion to a new faith as creating a right in his favour to the prejudice of another, it is proper and necessary for a court of law to enquire and find whether the conversion was a bona fide

one."

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

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religion. If a ceremony of conversion is gone into conscientiously after such an honest conviction,

then 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 is in fact a conversion or not must depend on facts

and circumstances of each case and no general rule

can be laid down in that behalf."

9. Similarly Mulla in his Commentary "Mulla on Mohammedan Law" has in Chapter 10 has discussed the

"Ceremony of conversion" and "Valid and lawful conversion" which discussion reads as under:-

"5. Ceremony of conversion.- In case of

conversion there should be a change of heart and honest conviction in the tenets of new religion in lieu of tenets of original religion. If

a ceremony of conversion is gone into conscientiously after such an honest conviction, then 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 faith to another a strict

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proof is required and it can be easily inferred.

More so, when a person converted denies

the factum of conversion, as to whether there

is in fact a conversion or not must depend on facts and circumstances of each case and no general rule can be laid down in this behalf. 1"

"6 . Valid and lawful conversion.- A conversion would be considered valid and lawful unless

(i) "the conversion ig is a pretended or colourable one, for the purpose of perpetrating a fraud upon the law, or (ii) the

whole of man's conduct and the evidence of surrounding facts is such to run counter to the presumption of conversion to Islam.2

10. In the present case, Respondent has relied on the marriage certificate i.e. Nikahnama. From the Written

Statement of the Respondent which has been treated as his affidavit in lieu of evidence as well as the affidavits which are filed in interim applications including rejoinder and sur- rejoinder which also have been treated as affidavit in lieu of

evidence nowhere it has been mentioned as to how and when the ceremony of conversion was conducted. Secondly, it is nowhere stated by the Respondent in his evidence as to

1 Dr. Abdur Raheem Undre v. Smt. Padma Abdur Raheem, AIR 1982 Bom 341 at pp.356 to 358 2 Fyzee p.64 : Tyabji .8 : Wilson.

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how and in what manner ceremony of marriage under Mohammedan Law was performed. Thus even if the

evidence of Respondent is taken into consideration, it can be

seen that neither essentials of conversion have been performed and completed nor essentials of marriage under the Mohammedan Law have been followed and, as such, it

cannot be said that there was a valid marriage between the Appellant and the Respondent under the Mohammedan Law and, therefore, Nikahnama which was being produced,

obviously after fraudulently obtaining the signatures of the

Appellant on the blank forms, therefore, cannot be treated as valid marriage certificate and the same will have to be

declared as null and void. The evidence of the Appellant on the other hand has gone uncontroverted.

11. The conduct of the Respondent also needs to be noted

here. The said Nikahnama was never produced by him at any time prior to 21/1/2004 and even thereafter.

Respondent has made wild and reckless allegations against the Appellant after her marriage to Mr. Vishal Dave only to defame and malign her in the eyes of the society and her in- laws and her husband. No material was produced by him in

support of the allegations which were made by him in his Written Statement or affidavit-in-reply or rejoinder and, therefore, we have no hesitation in coming to the conclusion that the story as alleged by the Respondent in the Written Statement and affidavit-in-reply and rejoinder is imaginary,

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fictitious and figment of his imagination and the said allegations have been made only to malign the Appellant or

to blackmail her.

12. Another aspect which needs to be noted here is that the FIR was registered by one Shri Ajay Krishnaji Lonare against

one Marriage Bureau, some lawyers and other persons who had performed illegal marriages by preparing forged and fabricated documents. This offence was registered vide C.R.

No.82 of 1996. In the said complaint, he alleged that bogus

marriage certificates were issued by preparing false and fabricated documents. The name of that Association was

Adarsh Vivah Karyalay and the name of accused No.1 was Javed Siraj Khan (Advocate) and the name of accused No.2 was Rahi Mohammad Abul Hasan. The statements of victims

and Quazi and Notary were recorded by the police. Similarly,

a Petition was filed by one Majlis Manch being Writ Petition No.2340 of 2004, seeking writ of continuing mandamus or

other appropriate writ prohibiting Respondent Nos. 1 and 2 from allowing any person not authorized by law or custom establishing or carrying on any activity purporting to solemnize or dissolve a marriage and also a direction was

sought directing Commissioner of Police to investigate and take appropriate criminal action in accordance with law against the advocates/Notaries who are engaged in illegal activities with a further direction to take disciplinary action against such Advocates. Further appropriate writ or direction

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was sought directing Respondent No.5 to ensure that the stipulations laid out under Maharashtra Regulation of

Marriage Bureaus and Registration of Marriages Act, 1998

are strictly complied with and for other consequential reliefs. The said Petition was filed by renowned activist Flavia Agnes who is the Secretary of Majlis Manch. Pursuant to the orders

passed by this Court all those marriage shops were demolished and the concerned Advocates and Notaries were arrested and action was taken against the perpetrators of

such crimes. In this context, it would be relevant to consider

the evidence of D.W. 2 - Mr. Maulana Abul Hasan Rahi Kazi, who allegedly performed the ceremony of conversion and

marriage needs to be seen. He has stated that he works opposite Metropolitan Magistrate's Court in Bandra (East) Mumbai in Shubh Vivah Sanstha where Muslim marriages are

to be performed. He has stated that in such cases, he is

called and he he performs them and he makes the boy and girl read Kalamas and take signatures of both of them and

signatures of witnesses are also taken. Then he prepares Nikahnama and gives them one copy. In the cross- examination, he has stated that police had conducted raid and he alongwith 26 others were taken in police lockup and

he had applied for bail and bail was granted to him. Similarly, in his evidence in para 32 he has stated the manner in which he used to procure witnesses. He has stated that since the witness Salim Khan son of Shariff Khan was not present, he has taken the signature of some one else

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viz one Iftekar. He has stated that he knew Salim Khan who was a typist in Bandra (East) in these shops. Similarly, D.W.3

- Mr Abdul Aziz Memon who was examined on behalf of the

Respondent and who is an Advocate by profession in his cross-examination admitted that, though, as an Advocate, he is not supposed to sign Nikahnama, Quazi had asked him to

sign and the Quazi took his signature on Nikahnama. From the evidence of Respondent itself it can be seen that Respondent had procured this Nikahnama from illegal

marriage shops which ig were operating outside the Metropolitan Magistrate's Court, Bandra. Similarly, D.W. 4 - Mr. Alfans Intru Lobo has stated that he has not seen the

Nikahnama since no one had asked him to sign it. He has stated that he did not know what was going on there. It is pertinent to note that this Court in PIL which was filed before

the Court headed by Hon'ble the Chief Justice had given a

direction to demolish these marriage shops which are outside the Metropolitan Magistrates Court, Bandra and

several persons were arrested and as many as 7 marriage bureaus were banned.

13. In our view, Trial Court clearly has committed a

manifest error of law not only in accepting the Written Statement and affidavit-in-reply, sur-rejoinder to the interim relief application as affidavit in lieu of evidence but has further erred in holding that the Respondent had established that there was valid and legal marriage between the

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Appellant and the Respondent under the Mohammedan Law. The said judgment and order passed by the Trial Court.

therefore needs to be quashed and set aside.

14. In the result, the judgment and order passed by the Family Court is quashed and set aside. Consequently, all

interim directions and declaration granted by the Family Court in favour of the Respondent are also quashed and set aside. Petition of the Appellant is allowed in terms of prayer

clauses (a) to (g).

15. Appeal is accordingly allowed in the aforesaid terms and

disposed of.

16. We must mention here that though the appeal is

allowed, direction is given to the Reporters and other persons

from Media that the name of the Appellant be concealed by showing her name as "xyz" in the event any news is published about this judgment. Even if this judgment is

reported in Law Reports, name of the Appellant be concealed and it be shown as "xyz". However, in the certified copy of the judgment her real name be mentioned. While uploading

this judgment, the name of the the Appellant be shown as "xyz".

           (P.D. KODE, J.)          (V.M. KANADE, J.)
    B.D.Pandit