Gujarat High Court
Kajal Chhaganbhai Patel W/O ... vs Mohmad Naim Abdul Amid on 9 June, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/FA/175/2021 ORDER DATED: 09/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 175 of 2021
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KAJAL CHHAGANBHAI PATEL W/O MOHMAD NAIM ABDUL AMID
Versus
MOHMAD NAIM ABDUL AMID
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Appearance:
MR ZUBIN F BHARDA(159) for the Appellant(s) No. 1
MS DIMPLE A THAKER(6838) for the Defendant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 09/06/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This first appeal is at the instance of the original
plaintiff of a family suit and is directed against the
judgment and decree passed by the Principal Judge,
Family Court, Navsari dated 05.02.2019 in the Family Suit
No.125 of 2017, by which, the Principal Judge of the
Family Court dismissed the suit filed by the wife, seeking
a declaration that her marriage with the respondent was
void.
2. The facts, giving rise to this appeal, may be
summarized as under;
2.1 The appellant and the respondent herein got married
on 11.09.2017 at Navsari and got the marriage registered
under the provisions of the Special Marriage Act, 1954.
C/FA/175/2021 ORDER DATED: 09/06/2021
The appellant herein is Hindu by caste whereas the
respondent herein is a Muslim. They could have got
married only under the Special Marriage Act. A certificate
of marriage was also issued by the Competent Authority
and the same is at Exh.13. It is the case of the appellant
that after the marriage with the respondent, it came to
her notice that the respondent is a married man.
According to the appellant, the respondent could not have
got married with her as the first marriage of the
respondent was in subsistence.
2.2 The case put up by the respondent is that he, being
a Muslim, is entitled to have four wives in accordance with
the Muslim Personal Law. In such circumstances, as he
fell in love with the appellant, they both got married under
the Special Marriage Act.
2.3 The appellant thought fit to get the marriage
declared as a void marriage as the same was in breach of
the provisions of the Special Marriage Act. The Family
Court framed the following issues at Exh.11;
"1. Whether applicant proves that, at the time of
applicant's marriage with opponent had not
informed his earlier marital status to applicant?
2. Whether applicant entitled to get relief as
prayed for?
3. What order and decree?"
2.4 The issued framed by the Family Court, referred to
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above, came to be answered as under;
"1. In the negative
2. In the negative.
3. As per the final order."
2.5 The Family Court took the view that in fact the
marriage between the parties was a fraud. The respondent
is a resident of U.K. and the appellant wanted to migrate
to U.K. and, therefore, as a device, she got married with
the respondent so that on the strength of the marriage
certificate, she could migrate to U.K.. However, it appears
that the appellant was not able to reach U.K. for some
reason or the other. Ultimately, the suit came to be
dismissed. In such circumstances, referred to above, the
appellant is here before this Court with the present
appeal.
3. We have heard Mr. Zubin Bharda, the learned
counsel appearing for the appellant-wife and Ms. Dimple
Thaker,the learned counsel appearing for the respondent-
husband. The wife, i.e, the appellant has also join the
video-conference and the respondent has also join the
video-conference. In fact, both the parties have no
objection of any nature if the marriage is declared to be a
void marriage. They want to part ways and would not like
to enter into any other controversy. Without commenting
anything on what has been observed by the Principal
Judge of the Family Court, we are of the view that the
ends of justice would be met if the marriage is dissolved
C/FA/175/2021 ORDER DATED: 09/06/2021
so that the parties can leave their own life peacefully. We
also take notice of one affidavit filed by the respondent,
wherein the following has been stated;
"2. I state that the marriage between me and the
appellant was solemnized on 11.09.2017 under the
Special Marriage Act, 1954 and the same was
registered before the Marriage Officer of Navsari on
11.09.2017 in Marriage Register No.29 Volume No.4
on Page Nos.142 to 143. I state that I left for the
United Kingdom on 12.09.2017 as I was residing
since the past 20 years and as per my commitment
made to the appellant, I was to call the appellant to
the United Kingdom,as she had become my lawfully
wedded wife. I state that after reaching United
Kingdom, the appellant insisted upon me processing
her visa papers so she can unite with me as my wife,
at that time, I disclosed to her that I was already
married and that I had a daughter out of the first
marriage. I was already married to one Yasmin
Azizkhan Rangrej in the year 2007. Upon coming to
know that I was already married, the appellant
refused to unite with me and filed Family Suit No.125
of 2017 in the court of Principal Family Judge to
declare the marriage as null and void under section
24(1)(1) and under section 25 of the Special
Marriage Act.
3. I state that upon being served with the notice
from the court of Family Judge, Navsari, I filed my
written statement Exh.10 and admitted the contents
of the plaint. The learned Family Judge, however,
dismissed the Family Suit by way of judgment and
order dated 05.02.2019. I state that I have no
objection to this Hon'ble Court declaring the
marriage as null and void or voidable on account of
the fact that I was already married at the time of
solemnizing the marriage with the appellant and the
said marriage was still in existence. I state that I was
under an impression that being a Muslim and
governed by Shariat Law,i was entitled to marry four
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wives. However, as the appellant did not intend to
continue the marriage upon being informed that I
was already married and intending to dissolve the
marriage by getting it declared as null and void, I
herewith for the limited purpose of getting the
marriage declared as null and void, accord my
consent which I had also accorded before the Family
Court and humbly urge before this Hon'ble Court to
allow the First Appeal and grant the prayer made by
the appellant which would serve the purpose of
justice."
4. In the result, the appeal succeeds and is hereby
allowed. The impugned judgment and decree passed by
the Principal Judge, Family Court, Navsari is hereby
quashed and set aside. The Family Suit No.125 of 2017 is
hereby allowed. The declaration, as prayed for in the
plaint as regards the status of the marriage and the
legality and validity of the marriage certificate is granted.
The Registry shall draw the decree accordingly.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
Vahid
