Ga Arife @ Arti Sharma vs Gopal Dutt Sharma
2010 Latest Caselaw 3767 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI

                          Judgment reserved on: 30.07.2010
                          Judgment delivered on: 13.8.2010


                      MAT. APPEAL NO. 69/2010


GA Arife @ Arti Sharma                      ......Appellant
                     Through: Appellant in person.


                                Vs.

Gopal Dutt Sharma                         ......Respondent
                          Through: Mr. M.G. Dhingra, Adv.

                          AND

                      MAT. APPEAL NO. 70/2010


GA Arife @ Arti Sharma                       ......Appellant
                     Through: Appellant in person.


                                Vs.

Gopal Dutt Sharma                         ......Respondent
                          Through: Mr. M.G. Dhingra, Adv.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may         Yes
   be allowed to see the judgment?
2. To be referred to Reporter or not?                Yes

MAT APP NO. 69/2010                         Page 1 of 23
 3. Whether the judgment should be reported            Yes
     in the Digest?
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. 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. 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. 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. 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:

.................

(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. 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. 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. 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.. 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. 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 re- conversion 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. 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.

KAILASH GAMBHIR, J August 13, 2010