Niloufer Soli Lam vs Zarir Pesi Bharucha
2023 Latest Caselaw 2358 Bom

                                                             ial-35120-2022.doc




             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                ORDINARY ORIGINAL CIVIL JURISDICTION

                INTERIM APPLICATION (L) NO.35120 OF 2022
                                   IN
                        PARSI SUIT NO.20 OF 2022

Niloufer Soli Lam                                    ...Applicant
      In the matter of
Zarir Pesi Bharucha                                  ...Plaintiff/
                                                     Respondent
      vs.
Niloufer Soli Lam                                    ...Defendant


Mr. Satish Maneshinde a/w. Ms. Mrunalini Deshmukh, Ms. Sanober
Nanavati, Mr. Saket Mone, Mr. Subit Chakrabarti, Ms. Srushti
Thorat, Ms. Apurva Pawar and Ms. Anandini Fernandes and Ms.
Namita Maneshinde i/b. Vidhi Partners, for the Applicant
/Defendant.

Mr. Aspi Chinoy, Senior Advocate a/w. Mr. Navroz Seervai, Senior
Advocate, Mr. Gaurav Joshi, Senior Advocate, Mr. Zal
Andhyarujina, Senior Advocate, Ms. Tauban Irani, Ms. Sanchi
Ladha and Mr. Samsher Garud i/b. Bimal Rajasekhar, for the
Respondent/Plaintiff.

                          CORAM :   N. J. JAMADAR, J.
                          DATE :    MARCH 13, 2023

ORDER

1. By this application, purportedly under section 10 of the Code

of Civil Procedure, 1908, the defendant seeks stay of the instant

suit till the decision of the petition being Petition No. A/3217/2022

instituted by the plaintiff under section 27(d) of the Special

Marriage Act, 1954 (the Special Marriage Act) before the Family

Court, Bandra.

Vishal Parekar, P.A.                                                       ...1
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2. Shorn of unnecessary details, the background facts can be

stated as under:-

a] The plaintiff is an advocate by profession. Defendant is also

engaged in corporate law practice. The defendant is a British

citizen. The plaintiff and defendant are Parsis. The marriage of the

plaintiff and defendant was solemnized on 29 th March, 2012 under

the provisions of the Special Marriage Act, 1954 (the Special

Marriage Act).

b] On 1st April, 2012 the plaintiff and defendant also solemnized

and registered a marriage under the Parsi Marriage and Divorce

Act, 1936 (the Parsi Marriage Act). The plaintiff and defendant are

blessed with a daughter and a son.

c] It seems since the year 2019, the marital discord struck the

life of plaintiff and defendant. Whilst the allegations and counter

allegations, few thick and fact, the plaintiff alleged on 7th September,

2022, he received an intimation that the account maintained with

'Charles Schwab and Co.' (Schwab account), to which the plaintiff

had made the defendant a joint account holder, was debited, at the

defendant's instance, to the tune of US$ 4 million dollars. The

plaintiff thus, instituted Suit No. 335 of 2022 seeking recovery of

the sum of US$ 4,084,063 which the defendant had allegedly

illegally transferred out of the Schwab account jointly held by the

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plaintiff and defendant to the defendant's own Schwab account.

3. In this suit, the plaintiff seeks dissolution of the marriage

under section 32(dd) of the Parsi Marriage Act on the ground that

the defendant has since solemnization of the marriage treated the

plaintiff with cruelty or has behaved in such a way as to render it in

the judgment of the Court improper to compel the plaintiff to live

with the defendant.

4. As the marriage between the plaintiff and defendant has been

solemnized and registered under the provisions of the Special

Marriage Act, the plaintiff has also instituted a petition for

dissolution of the marriage on the ground of matrimonial cruelty

under section 27 (d) of the Special Marriage Act before the Family

Court, Mumbai.

5. Asserting that the said marriage petition before the Family

Court came to be instituted on 10 th February, 2020 prior in point of

time, the defendant seeks the stay of the instant suit. A detail

reference to the allegations of cruelty and untoward conduct and

behaviour of the defendant would be superfluous in the context of

the prayer for stay of the suit.

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6. In the instant application it is, inter alia, asserted that since

the marriage of the plaintiff and defendant was in fact solemnized

and registered under the Special Marriage Act prior to the

solemnization and registration under the Parsi Marriage Act, in

law, the parties only underwent ceremonies and rituals in

accordance with the tenets of Parsi religion. Since the marriage

between the parties has been solemnized under the Special

Marriage Act, first in point of time, it is imperative that the petition

filed by the plaintiff before the Family Court, be heard and decided

by the Family Court first. Any subsequent marriage post

solemnization and registration of the marriage under the Special

Marriage Act, cannot convert the marriage into religious marriage

on the basis of the rituals and ceremonies and the said marriage

solemnized under the Special marriage Act would remain intact and

valid until it is dissolved under the provisions of the Special

Marriage Act, in spite of a decree of dissolution of marriage passed

in accordance with the personal law of the parties. Therefore, it is

imperative to stay the instant suit till the decision of the said

marriage petition.

7. I have heard Mr. Satish Maneshinde, learned counsel for the

applicant /defendant, and Mr. Aspi Chinoy, learned senior advocate,

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for the respondent/plaintiff at some length. With the assistance of

the learned counsel for the parties, I have perused the pleadings

and averments in the application and relevant documents.

8. Mr. Maneshinde advanced a two-pronged submission. First,

once a marriage is solemnized under the Special Marriage Act, the

rights and obligations of the parties are governed by the provisions

of the said Act de hors the personal law by which the parties are

governed. The subsequent solemnization and registration of the

marriage under the personal law, be the Parsi Marriage Act, does

not divest the parties of the rights under the Special Marriage Act.

Second, even where the parties had married in accordance with the

tenets of any religion and subsequently choose to register their

marriage under the Special Marriage Act, the parties, post

registration of the marriage under the Special Marriage Act, are

entitled to the remedies under the said Special Marriage Act. A

decree of divorce under the personal law, therefore, does not

dissolve the marriage under the Special Marriage Act until the

marriage is also dissolved under the said Act.

9. To buttress the aforesaid submissions that the marriage

solemnized under the Special Marriage Act puts the marriage on a

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secular pedestal and unshackles the parties of the disabilities under

the personal laws, Mr. Maneshinde placed a strong reliance on a

judgment of the Division Bench of this Court in the case of Dr. Abdur

Rahim Undre vs. Padma Abdur Rahim Undre 1 and a judgment of

learned single judge of Delhi High Court in the case of M vs. A2.

10. In the case of Dr. Abdur Rahim Undre (supra), a Division

Bench of this Court was confronted with a question as to whether

the appellant/plaintiff, a Mohammedan, who had married with a

non-Mohammedan lady at Weymouth, England under British

Marriage Act, 1949, was entitled to dissolve the marriage

unilaterally in accordance with the tenets of Islam. The Division

Bench held that, once it is held that the marriage between the

defendant and the plaintiff solemnized in England was secular in

the form and content and also monogamous and such a secular law

is also available in India in the form of Special Marriage Act then it

can safely be said that Special Marriage Act applies to all Indian

Communities irrespective of caste, creed or religion. The concept of

marriage under the said Act, is monogamous, that is, union for life

and dissoluble by judicial authorities. Under the said law all modern

matrimonial reliefs are made available to both the spouses in the

1 AIR 1982 Bom 341.

2   2018 SCC OnLine Del 8005

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event of breakdown of marriage on an application to the Court of

competent jurisdiction. Even the religious marriages can be

registered under the said Act. On such registration the religious

marriage can be converted into secular marriage.

11. In the case of M vs. A (supra) a learned single Judge of Delhi

High Court, after considering the provisions of the Special Marriage

Act and the relevant proceedings including the Division Bench

judgment in Dr. Abdur Rahim Undre (supra) culled out the

principles in paragraph 10. The following propositions bear upon

the determination of the controversy at hand.

10. Summary of Principles

10.1. The Special Marriage Act, 1954 provides a special form of marriage, its registration and divorce. A marriage between any two persons belonging to any religion or creed may be solemnized under this Act. Being a secular Act, it plays a key role in liberating individuals from the traditional requirements of marriage. It provides for a civil law of marriage that would enable individuals to get married outside of their respective community mandates.

10.2. The Special Marriage Act 1954 is not concerned with the religion of the parties to an intended marriage. Under the Act any person, whichever religion he or she professes, may marry either within his or her community or in a community other than his or her own, provided that the intended marriage in either case is in accord with the conditions for marriage laid down in the Act.

.... .......

10.4. The Special Marriage Act provides an option of turning an existing religious marriage solemnized in

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any other form under any other law into a civil marriage by registering it under its provisions, provided that it is in accord with the condition for marriage laid down under the Act. This provision of subsequent registration enables parties to avail secular and uniform remedies despite the solemnization of marriage through performance of religious ceremonies under one's own personal laws. This aids them in overcoming the constraints or discrimination faced in their own personal laws. ....... ........

10.7. When a person solemnizes marriage under this law then the marriage is not governed by personal laws but by Special Marriage Act. The rights and duties arising out of marriage are governed by the Special Marriage Act and the succession is governed by Indian Succession Act, 1925, and not by the personal laws.

10.8. Having married under the Special Marriage Act, if a person contracts a second marriage, he shall be deemed to have committed an offence under Section 494 or 495 IPC.

12. Mr. Maneshinde also placed reliance on the judgment of a

learned single Judge of this Court in the case of Rohinton Minoo

Surty vs. Kashmira Rohinton Surty3 to bolster up the submission

that even if a decree is passed in the instant suit, the marriage

solemnized between the parties under the Special Marriage Act

would remain valid.

13. In the case of Rohinton Surty (supra) the parties had, like the

instant case, initially registered their marriage on 24th September,

3 2022 SCC OnLine Bom 350.

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2004 under the Special Marriage Act and subsequently the

marriage was solemnized in accordance with the Parsi Zoroastrian

rites and custom on 21st December, 2004 and it was registered on

22nd December, 2004. As the parties decided to part ways, they

obtained a decree of divorce by mutual consent under section 28 of

the Special Marriage Act. The parties also moved for dissolution of

the marriage solemnized under Parsi Act by mutual consent under

section 32B of the Parsi Act.

14. The learned single judge, after noting the provisions

contained in sections 28 and 42 of the Special Marriage Act and

section 52 of the Parsi Marriage Act observed that though the

parties were made to resort to two independent proceedings, under

two different enactments, for dissolution of one and the same

marriage by mutual consent, a decree for dissolution of the

marriage under the Parsi Marriage Act was indispensable despite a

decree of dissolution of marriage under the Special Marriage Act

having been already obtained.

15. The observations in paragraphs 11 to 14 of the aforesaid

judgment are material and hence extracted below:

11 Notably Section 42 of the Special Marriage Act which is the "saving provision" provides that nothing

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contained in the Special Marriage Act shall affect the validity of any marriage not solemnized under its provisions, nor shall the said Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage. Section 42 needs to be extracted which reads thus:-

"42. Saving. - Nothing contained in this ? Act shall affect the validity of any marriage not solemnized under its provisions; nor shall this Act be deemed directly or indirectly to affect the validity of any mode of contracting marriage."

12. From a perusal of the said provision, it clearly appears that although there was a marriage of the plaintiffs solemnized under the Special Marriage Act and there was a decree of divorce by mutual consent as obtained by them under the said Act, however, considering the provisions of Section 42, such a decree would not have any effect on the validity of the plaintiffs' marriage which was solemnized under the 1936 Act. It is for such reason, and rightly so, the parties were required to move this Court by the present proceedings under the 1936 Act.

13. In so far as the 1936 Act is concerned, considering the scheme of such Act, it was also imperative for the plaintiffs to approach this Court by the present proceedings and to seek annulment of their marriage. This is clear from the provisions of Section 52 of the 1936 Act which provide for "applicability of provisions of the Act". Section 52 needs to be noted which reads thus:-

"52. Applicability of provisions of the Act.-- (1) The provisions of this Act shall apply to all suits to which the same are applicable whether the circumstances relied on occurred before or after the passing of this Act, and whether any decree or order referred to was passed under this Act or under the law in force before the passing of this Act, and where any proceedings are pending in any Court at the time of the commencement of this Act, the Court shall allow such amendment of the pleadings as may be necessary as the result of the coming into operation of this Act.

(2) A Parsi who has contracted a marriage under the Parsi Marriage and Divorce Act, 1865 (15 of

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1865), or under this Act, even though such Parsi may change his or her religion or domicile, so long as his or her wife or husband is alive and so long as such Parsi has not been lawfully divorced from such wife or husband or such marriage has not lawfully been declared null and void or dissolved under the decree of a competent Court under either of the said Acts, shall remain bound by the provisions of this Act."

14. Thus, from a plain reading of Sub-Section (2) of Section 52 of the 1936 Act, it is clear that a Parsi who had contracted marriage either under the 1865 Act or under the 1936 Act, so long as a Parsi is not lawfully divorced from such wife or husband or such marriage was not lawfully declared null and void or dissolved under the decree of a competent Court, under either the 1865 Act or under the 1936 Act, they shall remain bound by the provisions of the Act. It is for this reason the plaintiffs have appropriately filed the present proceedings despite a preexisting nullity of their marriage under the Special Marriage Act.

Certainly this has led the parties to resort to two independent proceedings under the said two enactments for annulment of their marriage by mutual consent, as there is no provision under these legislations which would bring about an effect, that if a marriage between the same couple is annulled under a competent law as enacted by the Parliament, it can as well be of a legal effect in the corresponding enactment. In the absence of such specific provision, the regime of the provisions as noted above under the Special Marriage Act and the 1936 Act would continue to operate, of course,with some hardship to the parties when they find themselves in a peculiar situation of their marriage being registered under both the said enactments.

16. Mr. Chinoy would urge that aforesaid judgment, in fact,

underscores the necessity of the instant suit. Premised on the

aforesaid submission, Mr. Chinoy would urge that the application is

completely misconceived. A petition for divorce under section 27(d)

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of the Special Marriage Act and a suit under section 32(dd) of the

Parsi Marriage Act are two independent proceedings. As the extant

position in law stands, decision in one does not obviate a decision in

another. Thus, by no stretch of imagination, according to Mr.

Chinoy, it can be urged that the situation would be governed by

section 10 of the Code.

17. Section 10 of the Code reads as under:

10. Stay of suit -

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before [the Supreme Court].

18. As is clearly manifest from the text of section 10, the primary

object of section 10 is to obviate two Courts of concurrent

jurisdiction from simultaneously trying two parallel suits in respect

of one and the same matter in issue and two possibly conflicting

decisions.

19. A profitable reference can be made to a judgment of the

Supreme Court in the case of National Institute of Mental Health

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and Neuro Sciences vs. C. Parameshwara4 wherein the Supreme

Court expounded the object as also a fundamental test to be applied

to determine whether section 10 would operate. The observations in

paragraph 8 are instructive and, hence, extracted below.

8] The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the -same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra- distinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical.

(emphasis supplied)

20. Applying the aforesaid test to the facts of the instant case, I

am afraid to accede to the submissions on behalf of the defendant

that the instant suit, or for that matter either of the proceedings

4 (2005) 2 Supreme Court Cases 256.

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(petition under section 27(d) of the Special Marriage Act and the

instant suit under section 32(dd) of the Parsi Marriage Act) can be

legitimately stayed until the decision of the other proceeding.

21. In my view, the question as to which of the suits is a

previously instituted suit also pales in significance for the

fundamental reason of the jurisdictional competence of the Courts

constituted under the Special Marriage Act and the Parsi Marriage

Act to pronounce upon the rights and obligations of the parties

emanating from the other enactment.

22. We have noted that dissolution of the marriage or subsequent

conversion of one or both the parties to the marriage after

solemnization and registration under the Special Marriage Act

neither denudes the parties of the rights under the said Act nor

absolves them of the obligations and liabilities thereunder. In

substance, having solemnized the marriage under the Special

Marriage Act, the parties are not free to convert the secular status

of their marriage into a religious marriage by performing rituals

and ceremonies and entering into other form of marriage.

23. Conversely, in view of the provisions contained in section 42

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of the Special Marriage Act, the provisions therein do not affect the

validity of any marriage not solemnized thereunder. It would imply

that a decree of divorce passed under the Special Marriage Act

would not annul a marriage between the parties to the said decree

solemnized in accordance with the provisions of another enactment

like Parsi Marriage Act wherein also there is a provision for

dissolution of the marriage solemnized thereunder only under the

provisions of the said enactment.

24. Section 52(2) of the Parsi Marriage Act (extracted in

paragraph 13 of the judgment in the case of Rohinton Surty (supra)

is one such provision which declares in emphatic terms that a Parsi

who has contracted a marriage under the Parsi Marriage and

Divorce Act, 1865 (15 of 1865), or under Parsi Marriage Act, even

though such Parsi may change his or her religion or domicile, so

long as his or her wife or husband is alive and so long as such Parsi

has not been lawfully divorced from such wife or husband or such

marriage has not lawfully been declared null and void or dissolved

under the decree of a competent Court under either of the said Acts,

shall remain bound by the provisions of the Parsi Marriage Act.

25. In the case of Khorshed Behram Rustomjee vs. Behram

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Nowrojee Rustomjee5 interpreting the provisions of section 52(2)of

the Parsi Act,this Court enunciated that a marriage contracted

under this Act cannot be dissolved by the decree of any other Court

except that of the Parsi Chief Matrimonial Court or the Parsi

District Matrimonial Court, as the case may be. The Court observed,

inter alia, as under:-

32. The above approach is justified on a further examination of section 52 (2). Amongst the ways in which a contracting party to a marriage can free itself from the marriage tie and change his or her status and rights and obligations relating to divorce and dissolution of the marriage is to change his or her religion or domicile. This course is sought to be blocked up by section 52 (2). A Parsi who has contracted a marriage under this Act or the 1865 Act cannot, by changing his or her religion, escape from the provisions of this Act. Likewise, by change of domicile, a Parsi cannot escape from the implications of the provisions of this Act. Section 52 (2) does away with the right of a Parsi to create a jurisdiction in the Court of some other country by changing his domicile after marriage. By implication section 52 (2) does not permit a Parsi who, before contracting a marriage under this Act, has a domicile of a territory other than India (State of Jammu and Kashmir excluded) to obtain a divorce or to have the marriage dissolved in a Court where he was domiciled before the solemnization of the Marriage under this Act. Section 52 (2) is meant to keep the parties to the marriage bound by the provisions of this Act unless he or she has been lawfully divorced or his or her marriage declared null and void or dissolved in the manner laid down in this Act. A decree for divorce or dissolution of marriage or nullity of marriage can be passed by the Court constituted under this Act and not by the Court having jurisdiction to dissolve the marriage on the basis of the domicile of the party suing. This celebrated Parsi community of India seems to have evolved its own system under this Act, so that the

5 1980 SCC OnLine Bom 90.

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legal systems prevailing in other countries for dissolution of marriage, etc., do not affect their community in India.

33. Smt. Master also relies on section 4 (1) of the Parsi Marriage and Divorce Act, 1936, to reinforce her argument. This sub-section says that no Parsi (whether such Parsi has changed his or her religion or domicile or not) shall contract any marriage under this Act or any other law in the lifetime of his or her wife or husband, whether a Parsi or not, except after his or her lawful divorce from such wife or husband or after his or her marriage with such wife or husband has lawfully been declared null and void or dissolved and, if the marriage was contracted with such wife or husband under the Parsi Marriage and Divorce Act, 1865, or under this Act, except after a divorce, declaration or dissolution as aforesaid under either of the said Acts. This sub-section and section 52 (2) have much in common and are moulded in the same fashion. But in view of the opinion expressed above, it is necessary to interpret the provisions of sec.4 (1).

34. In conclusion, I say that we must interpret section 52 (2) on its own terms without any pre-conceived notion on the question of dissolution of marriage being governed by the lex domicilii. The meaning and function of domicile and its application in cases like Khambatta v. Khambatta and Yezdiar V. Yezdiar as decided by Mr. Justice Coyajee, have been noted. In Yezdiar v. Yezdiar, the provisions of section 52 (2) did not come up for interpret ion, whereas Khambatta v.

Khambatta was decided on 4th December, 1933 before this Act went into operation on 22nd June, 1936. The intention of the Legislature as manifested in section 52(2) seems to be to separate the Parsis contracting marriage under this Act from the mainstream of private international law relating to dissolution of marriage and to bind them to the provisions of this Act in matters of their divorce, dissolution of marriage and nullity of marriage. Such matters are intended to be decided by the Special Courts with the aid of the members of their community. In my view, this Court has jurisdiction to pass necessary orders on the present petition as this Court alone is competent under the Parsi Marriage and Divorce Act, 1936 to pass such orders, and not the English Matrimonial Court on the basis that husband is

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governed by the law of his English domicile as urged on behalf of the respondent-husband.

(emphasis supplied)

26. If considered in the light of aforesaid position in law and

applying the test for stay of the suit under section 10 of the Code as

enunciated in the case of National Institute of Mental Health

(supra) even if it is assumed that a decree is passed in this suit

under section 32(dd) of the Parsi Act, it would not operate as Res

Judicata in the petition filed under section 27(d) of the Special

Marriage Act before the Family Court. Conversely, a decree passed

in the said petition under the Special Marriage Act by the Family

Court would not dissolve the marriage between the plaintiff and

defendant solemnized under the Parsi Marriage Act, since the

question would be of the competence of the Court rather than the

identity of the parties and the subject matter in both the

proceedings.

27. The larger question as to whether the law should countenance

the possibility of two conflicting decisions, which may arise in the

event a decree is passed in a petition before the Family Court under

the Special Marriage Act and the same is refused in a suit under the

Parsi Marriage Act, where none of the Courts is a foreign Court, is a

matter which deserves to be considered in an appropriate case

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where such a decision is necessarily warranted.

28. The upshot of aforesaid consideration is that none of the

proceedings, being dependent on the outcome of another, the prayer

for stay of suit does not deserve to be countenanced.

Hence, the following order.

ORDER

1] The application stands dismissed.

2] Costs in cause.

                                          (N. J. JAMADAR, J.)




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