Madras High Court
Syed Saleem Batcha vs Devi on 6 January, 2025
Author: N.Seshasayee
Bench: N.Seshasayee
C.M.A(MD)No.65 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 12.06.2024
Pronounced on : 06.01.2025
CORAM :
JUSTICE N.SESHASAYEE
and
JUSTICE L.VICTORIA GOWRI
C.M.A(MD)No.65 of 2019
and
C.M.P(MD)No.697 of 2019
Syed Saleem Batcha ...Appellant/Respondent
Vs.
Devi ...Respondent/Petitioner
PRAYER: Civil Miscellaneous Appeal is filed under Section 19 of Family
Court Act, to set aside the fair and decreetal order dated 14.08.2018, passed in
Special Marriage O.P.No.16 of 2014 on the file of the Family Court,
Tiruchirappalli.
For Appellants : Mr.J.Anandhavalli
For Respondents : Mr.K.K.Senthil
JUDGMENT
[Judgment was delivered by L.VICTORIA GOWRI, J.]
This Civil Miscellaneous Appeal is filed against the order dated
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14.08.2018, passed in Special Marriage O.P.No.16 of 2014, on the file of the
Family Court, Tiruchirappalli.
2.The appellant herein is the husband of the respondent who challenges
the order of the Family Court, Tiruchirappalli in Special Marriage O.P.No.16 of
2014 by which the learned Family Judge had dissolved the marriage between
the parties.
3.The respondent had moved the Family Court alleging that she is a
Hindu and the appellant herein is a Muslim and that, they chose to marry under
the Special Marriage Act, 1954 and that, the marriage was solemnized on
22.10.1992. The core allegation has been that after marriage, the
appellant/respondent had forced the respondent to convert to Islam and that, she
was also forced to change her 'Thali'. While the respondent/wife was working
as a Station Master, her husband was jobless. During marriage, the respondent
was given 100 sovereigns of gold jewelry besides giving 5 sovereigns of gold
jewelry the appellant as dowry. However, when the matrimony progressed, the
appellant started to take alcohol and began beating his wife. In that process, the
respondent was injured and she had also taken treatment in the hospital. In
between, the couple begotten two children on 17.05.1993 and 12.11.1994.
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While so, the matrimonial discordance moved from bad to worst and the
appellant started abusing her with reference to her caste as she belongs to a
Scheduled Caste. The matter eventually reached the local jamaath. Before
which, the appellant had executed a consent document that he would not
disturb the appellant in any way. It is in these circumstances, the respondent
had laid a petition for dissolution of marriage with the appellant on the ground
of cruelty and desertion.
4.The allegation made in the counter affidavit is one of wholesome denial
of the allegations in the petition. He pleaded that he had been meeting the
educational expenses of his children.
5.The dispute went to trial before which the respondent was examined as
P.W.1 whereas the appellant was examined as R.W.1. On the side of the
respondent she produced documentary evidence, of which, Exs.P5 and P6 are
critical.
6.After evaluating the evidence before it, the Family Court granted
dissolution of marriage on both the grounds.
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7.The line of reasoning of the trial Court is based reliance on Ex.P6 as
well as testimony of R.W.1. Ex.P6 is a document which was marked by the
petitioner during the cross-examination of R.W.1, which is in Tamil.
Approximate translation of the relevant portion of it reads as below:-
“I have been maritally living with Saleema @ P.Devi for the
past twenty years.
Now, due to the misunderstanding, the situation to separate
arises.
Therefore, I promise that, I have no connection and
responsibility with regard to the ornaments and properties
belongs the said Saleema @ Devi,
Moreover, I promise that I won’t disturb her and there will
not be any quarrel from my side.
If anything happened like that, I promise that I will definitely
take the responsibility and I will abide by the action to be
taken as per law.
Therefore, I will accept the action to be taken by Saleema @
Devi.
I tell that in future, there is no relationship and bond between
me and her.
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If the said Saleema @ Devi wants to leave me, I give consent
for that........”
8.Turning to the testimony of R.W.1, it inferred that he has not been
living with his wife and sons. This order of the Family Court is now under
challenge.
9.Heard both sides.
10.The learned counsel for the appellant strongly canvassed the case for
her client and contended that the petition was filed with considerable
motivation. In the petition, the respondent/wife had alleged that she was
brutally beaten by her husband and she had taken treatment in the hospital, but
no documentary evidence was produced to establish the same. This apart, her
evidence indicates that at no point of time, she had complained about her
allegations that her husband had forced her to convert to Islam and that, he had
been inflicted cruelty upon her. These two are the core allegations for
constituting cruelty but when she had conceded in her cross-examination that
she had took no steps to establish the contra, it becomes evident that she has not
chosen to establish her allegation.
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11.Per contra, the learned counsel for the respondent/wife of the
appellant would submit that the petition was filed on two grounds of which the
acts of cruelty attracted is just a one and the other significant ground is one of
desertion which both Ex.P5 and P6 taken together will establish. Ex.P5 is
styled as a consent document wherein the appellant had even gone to the extent
of consenting for a mutual divorce. Ex.P6 is an another document which is in
the handwriting of the appellant. The learned counsel took the Court through
Ex.P6, the contents of which had already been provided above. He added that
the Court granted a decree not only on the ground of desertion but the mental
agony that would be forthcoming as automatic consequence of familial neglect
by the husband.
12.The appellant, who is the husband of the respondent, is a Muslim and
the respondent wife is a Hindu belonging to Scheduled Caste community. The
learned Trial Court had examined the wife as P.W.1 and the husband as D.W.1
respectively. On the side of the wife, 9 documents were marked as Ex.P1 to
Ex.P9, no documents were marked on the side of the husband. The learned Trial
Court proceeded to pass a verdict in favour of the wife on the basis of 3
material documents which were marked as Ex.P5, Ex.P6 and Ex.P8. Ex.P5 is a
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consent deed executed by the appellant on 09.08.2013. Ex.P6 is a letter dated
20.11.2012, written by the appellant husband to his wife. Ex.P8 is a copy of the
message sent by the appellant husband to the respondent wife from his cell
phone bearing No.9443874374.
13.The marriage between the appellant and his wife was a love marriage,
which was held on 22.10.1992, by registering the marriage under the Special
Marriage Act before the Trichy Sub Registry. A careful perusal of the marriage
certificate which was marked as Ex.P1, would reveal that the appellant had
married the respondent without converting her into Islam and her name was
recorded as P.Devi in the marriage certificate. The birth certificate of the
appellant's and respondent's son Saddam Hussein has been marked as Ex.P3
and a careful perusal of the same would reveal that even in the certificate the
name of the respondent is mentioned as P. Devi.
14.In a patriarchal society like that which prevails in India, marriage is a
phenomenal experience for each and every married woman. If planting a fresh
sapling is like growing a child, planting a tree would mean reforestation. A
woman is uprooted completely from her matriarchal circle and replanted in her
patriarchal circle afresh. Like a reforested tree, a woman will take her own time
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to get accustomed and accommodated in the new environment. That too, when
a woman takes a big decision of marrying a man from another belief system,
more particularly one belonging to another religion, the challenges faced by the
woman are infinite. When two hearts fell in love and decide to live in unison by
committing them to the relationship of marriage, they expect their mutual space
to prevail all through their lives, following their own system of beliefs and their
own way of socio-cultural traditions. In a love marriage, a woman marries her
beloved only with a fond hope that her space will not be invaded and that her
privacy will never be curtailed and her belief system will be appreciated,
acknowledged and respected.
15.In the instant case, the appellant at the first instance, without requiring
the respondent to convert into Islam had married the respondent belonging to
Schedule Caste community, who is a Hindu and had registered their marriage in
a marriage registry and the marriage certificate itself would reveal that the
respondent had not converted herself to Islam at the time of marriage. The
plight of the respondent which was complained by her in her petition for
divorce elaborates the various harassments meted out to her by her husband in
the name of religion compelling her to convert to Islam. Despite her remaining
a Hindu, when she gave birth to two sons, she never interfered with the
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appellant's privilege of naming his sons as Saddam Hussein and Yasser Arafat.
Nowhere in the petition for divorce, she had complained about the same and
she had in fact respected her husband's privilege to name her sons with Muslim
names as a father. The only botheration, which pained the respondent is that he
even indulged in the day-to-day affairs of her beliefs of being a Hindu and
whenever she was hurt as a woman who had hailed from a low caste, more
particularly from one of the scheduled castes. Being a habitual drunkard, he had
indulged in domestic violence by subjecting her to physical and emotional
abuse continuously and consistently. Though the appellant is running a business
of a furniture shop, he had never contributed anything towards the maintenance
of the family or the upbringing of their children. That apart, in due course of
time, he visited the respondent rarely and started residing with his sister, who is
residing nearby his furniture shop. The appellant had even compelled the
respondent to convert herself to Islam and also went to the extent of changing
her name from P. Devi to Salima. This is proved by the consent deed marked as
Ex.P5, in which the respondent's name is mentioned as Salima Beevi @ Devi.
The respondent not able to withstand the cruelties meted out to her.
16.Lastly, took salvage with the Jamaat to which the appellant belonged
to, seeking for reconciliation. However, the appellant had himself voluntarily
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executed a consent deed which is marked as Ex.P5, expressing his consent for a
separation from the respondent. The appellant and the respondent were living
separately for more than 2 years and that can be understood from the letter
written by the appellant on 20.11.2012, which is marked as Ex.P6, even in
which he had referred his wife, that is, the respondent as Salima @ Devi. The
emotional abuse and his critical views as well as perverted expressions with
respect to the religion followed by the respondent is clearly proved by the
respondent by marking the messages, which were sent by the appellant from his
phone to her as Ex.P8.
17.A matrimony, which commenced with love and affection when it
struggles to proceed with twists and turns by the beloved husband's attitude of
compelling the Hindu wife to convert to Islam by renaming her as Salima from
Devi and further compelling her to completely abandon her beliefs which she
has been following from birth by heart, thereby, putting her on crossroads for
the purpose of proselytization, would amount to abject cruelty. Forcible
conversion means violence. The emotional abuse to which the respondent was
subjected to by the appellant for converting herself to Islam from Hinduism
would cause untold misery and psychological imbalance on the mind and soul
of the respondent, which could never be expressed in normal words by any
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victim of conversion. The learned Trial Court relying upon all those documents
which clearly proved that the appellant had been consistently indulging in his
effort to proselytize his wife from Hinduism to Islam, had allowed the
respondent's petition for divorce by dissolving the marriage between the
appellant and the respondent, which was held on 22.10.1992 on the grounds of
cruelty.
18.Article 25(1) of the Constitution of India guarantees to all persons
freedom of conscience and the right freely to profess, practice and propagate
religion, subject to order, morality and health and to the other provisions of Part
III of the Constitution. In an inter-religious marriage registered under Special
Marriage Act, 1954, without converting oneself into the other religion of the
respective spouses, after marriage if any of the spouses are compelled to
convert into the other religion to which the spouse belongs to, the same would
amount to denial of the fundamental right to freedom of conscience and to
profess, practice and propagate religion guaranteed by Article 25(1) of the
Constitution of India. When a husband or wife in a matrimonial life is subjected
to consistent and persistent cruelty compelling them to convert into the other
one's religion to which one of the spouses belong to, such a circumstance would
certainly amount to curtailment of life and liberty ensured by Article 21 of the
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Constitution of India. Denial of right to freely profess and practice one's
religion and compelling him or her to convert to the religion of the other, would
deprive the victim of his/her life and personal liberty.
19.Right to life under Articles 21, 39(e), 39(f), 41 and 42 are meant to
ensure a life with human dignity. When a man/woman is denied with a personal
right to profess and practice their own religion, upholding their respective
freedom of conscience and beliefs, the same would miserably affect the quality
of life, resulting in a lifeless life without dignity. In this case, when the
respondent wife refused to convert herself to Islam, the appellant had
continuously indulged in abusing the Hindu gods and inflicted both emotional
and physical abuse on the respondent, compelling her to convert to Islam in his
heinous effort to proselytize her. In a country like India, religion is the essence
of life and religion is the connect between a man and almighty. The faith, which
fountains from the mind and soul is the basic strength on which a man or
woman usually dwell in life. The institution of marriage under every personal
law is a holy unison of two souls. Marriage system is treated as sacred and the
same has to be preserved. But in the name of God, in the name of religion,
when a woman in a marriage or a man in a marriage is compelled to convert
herself/himself to the religion of other for the sake of securing the matrimony
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would amount to shattering the foundation of the matrimony itself. Under
Hindu Marriage Act, 1955, conversion of any of the spouses to another religion
without the consent of the other spouse is a ground for divorce. Likewise,
Section 10(1)(ii) of the Divorce Act, 1869, provides conversion as a ground for
dissolution of marriage. But Section 27 of the Special Marriage Act, 1954, do
not provide conversion to other religion as a ground for marriage.
20.Though the point for consideration in this case is not with respect to
the conversion of one of the spouses to another religion, the point to be
considered is as to whether compelling one of the spouse to convert
himself/herself to another religion to which the other spouse belongs to would
amount to cruelty.
21.The learned Trial Court has held in affirmative observing that, the
respondent wife was subjected to grave cruelty by the appellant by consistently
torturing her to convert herself from being a Hindu to Islam. We fully agree
with the same. The respondent wife has sought for divorce on two grounds, that
is, desertion as well as cruelty. The elements of desertion, includes factum
desirendi and animus desirendi. The factual separation and physical withdrawal
of the husband from the family atmosphere of the wife would amount to factum
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desirendi.
22.In the instant case, within a few years of marriage, the appellant
gradually withdrew himself from the matrimonial companionship of the
respondent and started staying in his sister's house. In due course of time, he
rarely visited his wife and children and during 2012, he completely withdrew
from his matrimonial life. The same is duly acknowledged by him by Ex.P5 and
Ex.P6, which was written by him during 2012. The petition for divorce was
filed by the respondent before the learned Family Court only during 2014. The
physical withdrawal of the appellant from severing his family bond with the
respondent wife and children has been duly proved by the respondent wife and
his intention to desert the respondent wife permanently could be made clear
from Ex.P5, Ex.P6 and Ex.P8. The reason for his withdrawal is too
unreasonable and unjust that the respondent refused to convert herself to Islam.
Thus, the elements of desertion, both factum desirendi and animus desirendi are
duly proved by the respondent wife and we are of the considered opinion that
the appellant had deserted the respondent without any reasonable cause or
justification continuously for a period of 2 years.
23.The term “mental cruelty” is defined in Black's Law Dictionary (8 th
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edition, 2004) as follows:-
“Mental cruelty - as a ground for divorce, one's spouse
course of conduct (not involving actual violence) that creates such
anguish that it endangers the life, physical health, or mental health
of the other spouse.”
24.The concept of cruelty has been summarized in Halsbury's Laws of
England (Volume 13, 4th edition Para 1269) as follows:-
“The general rule in all cases of cruelty is that the entire
matrimonial relationship must be considered, and that Rule is of
special value when the cruelty consists not of violent acts but of
injurious reproaches, complaints. accusations or taunts. In cases
where no violence is awarded, it is undesirable to consider judicial
pronouncements with a view to creating certain categories of acts or
conduct as having or lacking the nature or quality, which renders
them capable or incapable in all circumstances of amounting to
cruelty: for it is the effect of the conduct rather than its nature, which
is of paramount importance in assessing a complaint of cruelty.
Whether one spouse has been guilty of cruelty to the other is
essentially a question of fact and previously decided cases have little,
if any, value. The Court should bear in mind the physical and mental
condition of the parties as well as their social status, and should
consider the impact of the personality and conduct of one spouse in
the mind of the other, weighing all incidents and quarrels between
the spouses from that point of view: further, the conduct alleged must
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be examined in the light of the complainants capacity for endurance
and the extent to which that capacity is known to the other spouse.
Malevolent intention is not essential to cruelty, but it is an important
element where it exists.”
25.In 24 American jurisprudence, second edition, the term “mental
cruelty” is defined as follows:-
“Mental cruelty as a cause of unprovoked conduct towards
towards one's spouse, which causes embarrassment, humiliation, and
anguish so as to render the spouse's life miserable and unendurable.
The plaintiff must show a course of conduct on the part of the
defendant which so endangers the physical or mental health of the
plaintiff as to render continued cohabitation unsafe or improper,
although the plaintiff need not establish actual instances of physical
abuse.”
26.In the instant case, the respondent wife is working as a Station Master
even during the time of her marriage in Southern Railways. The appellant
husband had already divorced his first wife and this is a second marriage. In the
name of love, he had love locked the respondent wife to fall for him in the
name of marriage and had enticed her heart, which led her to commit with him
in the relationship of marriage, though without converting herself to Islam. The
same is evident from her marriage certificate and the birth certificate of her
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elder son. She continued to remain a Hindu even during her marriage and even
after the birth of her children, but the appellant with the wicked mind and with
his continued perseverance, kept on pestering her to convert to Islam
consistently and went to the extent of even changing her name from P. Devi to
Salima. His conduct became too unendurable when he withdrew from the
matrimonial environment and started staying in his sister's house and slowly
avoiding visiting the respondent wife and his children. The appellant's course
of conduct compelled her to take salvage before the Jamaat to which the
appellant was attached for a reconciliation, which proved a damp squib and her
efforts for a reconciliation miserably failed, resulting in the appellant executing
a consent deed for separation. He even declared that the marriage has reached a
point of no returns where the both of them cannot take forward their matrimony
anymore.
27.In Rajani versus Subramanian reported in Manu/KE/001/1990, the
Court observed that “the concept of cruelty depends upon the type of life, the
parties are accustomed to and that or their economic and social conditions,
their culture and human values to which they attach importance, judged by
standard of modern civilization in the background of the cultural heritage and
traditions of our society.”
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28.The conduct inflicted by the appellant on the respondent wife had
caused grave mental pain and suffering to the respondent wife compelling her
to convert to Islam shattering her belief system and damaging her conscience,
which in due course of time had evolved into a challenge to her life and
personal liberty to live up to her conscience and belief system. Hence, we are of
the considered opinion that this is a fit case for grant of divorce on the grounds
of cruelty and desertion as well, categorically holding that not only conversion,
but also effort to proselytize a spouse to the religion of another without their
consent is nothing, but absolute violence.
29.In view of the above, the Civil Miscellaneous Appeal fails and the
same is dismissed. There shall be no order as to costs. Consequently,
miscellaneous petition is closed.
(N.S.S., J.) (L.V.G., J.)
06.01.2025
Index : Yes / No
Neutral Citation : Yes / No
Mrn
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To
1.The Judge, Family Court, Tiruchirappalli.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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N.SESHASAYEE, J.
and
L.VICTORIA GOWRI, J.
Mrn
Pre-delivery Judgment made in
06.01.2025
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