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C/FA/2979/2013 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2979 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
================================================================


1 Whether Reporters of Local Papers may be allowed to see
the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the
judgment ?

4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?

5 Whether it is to be circulated to the civil judge ?


================================================================
SHINU JAVED MANSURI....Appellant(s)
Versus
JAVED HUSSAIN MANSURI....Defendant(s)
================================================================
Appearance:
MS MEGHA JANI, ADVOCATE for the Appellant(s) No. 1
MR MM TIRMIZI, ADVOCATE for the Defendant(s) No. 1
================================================================


CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI


Date : 16/10/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
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1. Appeal is filed calling in question the
legality of judgement and decree dated
21.08.2013 passed by the Additional Judge,
Family Court, Vadodara in Family Suit No.
442 of 2012.


2.Brief facts are as under:



Appellant is Christian by birth. She
converted to Islam and got married to
respondent on 20.02.2003 as per Islamic
rights. The marriage of the couple ran
into trouble. The appellant claims that
she was ill-treated and harassed by her
husband. She claims to have converted to
her original faith of Christianity on
19.03.2012. On the premise that, upon her
reconversion to her original religion, her
marriage with the respondent would stand
dissolved, she filed the above noted
Family Suit No. 442 of 2012 before the
Family Court, Baroda. In such family suit,
she complained of illtreatment and
harassment by the husband. She has also
alleged that since 2008, the husband has
neglected to look after the wife and a
girl child was born out of the wedlock.
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She further stated that she had all along
followed Christianity as her religion and
reconverted to Islam only for the purpose
of getting married. She eventually
reconverted to her original faith on
19.03.2012. Primarily on such grounds, in
the family suit she prayed that the Family
Court may pass a decree under Section 7 of
the Family Court Act, 1984 read with
Section 4 of the Dissolution of Muslim
Marriage Act, 1939 ('Act of 1939' for
short) declaring the marriage solemnized
on 20.02.2003 as null and void. She also
prayed for monthly maintenance towards the
expenses of her daughter.


3. The respondent-husband appeared before the
Family Court and opposed the petition. He
filed application Exh 15 for rejection of
the plaint under Order 7 Rule 11 of the
Civil Procedure Code. In such application,
he contended that the family suit of the
wife is not maintainable under Section 4
of the Act of 1939. As per the husband,
merely on reconversion, the wife could not
seek declaration that the marriage stood
dissolved. He also questioned the very
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factum of the wife's reconversion to
Christianity. On such grounds, he prayed
before the Court that the suit itself be
rejected in exercise of powers under Order
7 Rule 11 of the Civil Procedure Code.



4.On such application, the Family Court
passed impugned order dated 21.08.2013.
The learned Judge recorded that in the
family suit she has raised grounds of
cruelty but has not prayed for dissolution
of the marriage on any of the grounds
mentioned in Section 2 of the Act of 1939.
According to the learned Judge, Section 4
of the Act of 1939 would not apply to a
person who had converted into Islam from
some other faith and who re-embraces her
former faith. The learned Judge further
held that the wife had prayed for
declaration that the marriage was null and
void and not for dissolution of marriage.
On such grounds, he was pleased to reject
the plaint under Order 7 Rule 11(d) of the
Civil Procedure Code.


5. Learned counsel Ms. Jani for the appellant
submitted that the Family Court committed
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a serious error in rejection of the
plaint. The appellant had filed the family
suit for dissolution of marriage on the
grounds mentioned in the said suit. It
cannot be stated that the plaint did not
disclose any cause of action or that from
the statement in the plaint, the suit
could be stated to be barred by any law.
She contended that, on mere conversion to
her original faith, the marriage between
the appellant and the respondent would be
automatically dissolved. The bar of
Section 4 of the Act of 1939 would not
apply in such a case. In this context, she
relied on an unreported decision of the
Delhi High Court in case of Munavar-ul-
Islam vs. Rishu Arora @ Rukhsar.


6. On the other hand, learned counsel Mr.

Tirmizi for the respondent opposed the
appeal contending that:


(i) The factum of the appellant's
reconversion to Christianity is not
established;



(ii) If she has reconverted
to
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Christianity, as contended by her, she
cannot file petition for dissolution of
marriage under Section 4 of the Act of
1939.


(iii) She had not prayed for dissolution
of marriage on any of the grounds
mentioned in Section 2 of the Act of 1939
and therefore, the Family Court correctly
rejected the plaint.


7. Counsel relied on the following decisions
of the other High Courts:


(I) Decision in case of K C Moyin vs.
Nafeesa reported in AIR 1973 Kerela 176;


(II) Decision of Division Bench of Andhra
Pradesh High Court in case of Sarwar Yar
Khan vs. Jawahar Devi reported in 1964 (1)
Andh.WR 60


1. The short question needed to be decided in
this appeal is, whether the learned Judge
of the Family Court was justified in
rejecting the plaint at the very threshold
in exercise of powers under Order 7 Rule
11 (d) of the CPC. Under the said
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provision, a plaint would be rejected in
case where the suit appears from the
statement in the plaint barred by any law.
The question is, therefore, when read as a
whole, can the family suit filed by the
wife be stated to be one which is barred
by any law. We may recall, the short case
of the wife was that she was not born
Muslim lady but converted into Islam and
got married to the respondent. She
subsequently reconverted to the original
faith of Christianity. According to her,
this act of reconversion would
automatically bring about the dissolution
of her marriage with the respondent. As
the respondent has questioned the very
factum of the reconversion of the
appellant into Christianity, we do not go
into this factual aspect. However, when we
are considering the legality of the
judgement of the Family Court rejecting
the plaint in exercise of power under
Order 7 Rule 11, we would have to proceed
on the basis of factual averments made by
the appellant in her suit. We, therefore,
proceeded on the basis of her averments in
the family suit namely that she got
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reconverted to her original faith of
Christianity. We may therefore, examine
the effect of Section 4 of the Act of 1939
in such a situation.


2.The Act of 1939 was enacted to consolidate
and clarify the provisions of Muslim law
relating to suits for dissolution of
marriage by woman married under Muslim law
and to remove doubts as to the effect of
renunciation of Islam by a married Muslim
woman on her marriage ties. The relevant
portion of the statement of objects and
reasons for enactment of the said Act of
1939 reads as under:


One more point remains in connection with
the dissolution of marriages. It is this.
The Courts in British India have held in a
number of cases that the apostasy of a
married Muslim woman ispo facto dissolves
her marriage. This view has been
repeatedly challenged at the bar but the
Courts continue to stick to precedents
created by rulings based on an erroneous
view of the Muslim law. The Ulemas have
issued Fatwas supporting non-dissolution
of marriage by reason of wife's apostasy.
The Muslim community has, again and again,
given expression to its supreme
dissatisfaction with the view held by the
Courts. A number of articles have been
appearing in the press demanding
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legislation to rectify the mistake
committed by the Courts; hence clause 5 is
proposed to be incorporated in this Bill.


Thus, by this Bill the whole law relating
to dissolution of marriages is brought at
one place and consolidated in the hope
that it would supply a very long felt want
of the Muslim community in India.


3. With these aims and objects, the Act of
1939 was enacted. Section 2 of the said
Act pertains to grounds for decree for
dissolution of marriage and provides that
a woman married under Muslim law shall be
entitled to obtain a decree for the
dissolution of her marriage on anyone or
more of the grounds mentioned in clauses
(i) to (ix) of the said section. These
include grounds such as whereabouts of the
husband have not been known for a period
of four years; that the husband has
neglected or has failed to provide for her
maintenance for a period of two years,
etc. Clause (ix) of Section 2, in
particular, provides that the marriage may
be dissolved on any other ground which is
recognized as valid for the dissolution of
the marriages under the Muslim law.
Section 4 of the Act of 1939 which is of
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considerable importance for us reads as
under:


4. Effect of conversion to another
faith:-


The renunciation of Islam by a married
Muslim woman or her conversion to a faith
other than Islam shall not by itself
operate to dissolve her marriage:


Provided that after such renunciation, or
conversion, the woman shall be entitled to
obtain a decree for the dissolution of her
marriage on any of the grounds mentioned
in section 2:


Provided further that the provisions of
this section shall not apply to a woman
converted to Islam some other faith who
re-embraces her former faith.



4. As is apparent from the above quoted
portion of statements of objects and
reasons and it can also be traced from the
contemporaneous literature, prior to the
enactment of said Act of 1939, conversion
of a Muslim woman from a faith of Islam to
another religion was considered as one of
the grounds for automatic dissolution of
her marriage. When seen in that light,
main body of Section 4 provides that
renunciation of Islam by a married Muslim
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woman or her conversion to a faith other
than Islam shall not by itself operate to
dissolve her marriage. In other words,
this was a statutory provision making a
departure from any school of thought or
principle that mere renunciation of Islam
by a married Muslim woman or her
conversion to a faith other than Islam by
itself would operate to dissolve her
marriage. The first proviso to Section 4
provides that after such renunciation or
conversion, the woman shall be entitled to
obtain a decree for the dissolution of her
marriage on any of the grounds mentioned
in Section 2.


5. The combined effect of the main body of
Section 4 read with first proviso
therefore, would be that, whatever the
situation prior to the enactment of the
Act of 1939, the renunciation of Islam by
a married Muslim woman or her conversion
to a faith other than Islam would not
itself operate to dissolve her marriage
but, such a woman would still be entitled
to obtain a decree for the dissolution of
her marriage on any of the grounds
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mentioned in Section 2. In other words,
even after renunciation of her religion or
conversion to other faith, the marriage of
a Muslim woman would remain intact and
there would be no automatic dissolution.
Her right, however, to seek dissolution of
the marriage on any of the grounds
mentioned in Section 2 would also not be,
in any manner, jeopardized. Such a woman
even though no longer professing Islam can
still seek dissolution of the marriage
from her husband, if she could establish
any of the grounds mentioned in Section 2.


6. The further proviso to Section 4, however,
carves out an exception in favour of a
woman who converted to Islam from some
other faith and who re-embraces her former
faith. In such a situation, the provisions
of Section 4 shall not apply to her. The
legislative intention is, thus, very
clear. Under Section 4 dissolution of
marriage upon a mere renunciation of Islam
by a married woman or her conversion to a
faith other than Islam would not be
recognized. By virtue of the first proviso
such a woman's right to seek dissolution
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of the marriage on any of the grounds
mentioned in Section 2 of the Act even
after conversion is, however, not taken
away. However, by virtue of further
proviso, Section 4 itself would not apply
in a situation where a woman has converted
into Islam from some other faith and re-
embraces her former faith.


7. In our opinion therefore, Section 4 makes
a clear distinction. In case of a woman,
who renounces Islam or converts to some
other faith, Section 4 along with its
first proviso would apply. However, in
case of a woman, who has converted into
Islam from some other faith and
thereafter, re-embraces her original
faith, Section 4 itself would not apply.
Therefore, in such a situation, if the law
recognized by the courts is such that the
marriage stands dissolved merely by the
act of the woman of reconversion to her
original faith, the Section 4 of the Act
of 1939 would not prevent such
consequences. To this limited extent, we
are at slight variant with the view of the
Delhi High Court in case of Munavar-ul-
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Islam vs. Rishu Arora @ Rukhsar (supra). It is
also a case where the wife had converted
into Islam and thereafter, reconverted to
her original faith of Hinduisam. The Court
observed as under:


18. While doubtless the jurists are
divided on whether the factum of apostasy
dissolves the marriage or renders it
invalid or void or null, there is
certainly unanimity amongst both the
jurists as well as the judgements of the
Courts, that apostasy of either party to a
marriage contracted under Muslim personal
law shall put an end to the marriage. Thus
the question arises as to whether the Act,
more specifically, section 4 thereof,
alters this state of law.



Thereafter, the Court proceeded to examine
whether this situation would be altered by
virtue of Section 4 of the Act of 1939.
Putting considerable stress on the words
used by itself in Section 4 the Court
held as under:


36. Thus, it is evident that section 4
was enacted in its form to prevent a fraud
from being played upon the courts law by
women married under Muslim personal law
apostatizing solely to escape marital
ties. However, on a consideration of the
words of the provision, the other
provisions in the Act, the long title of
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the Act, as well as the legislative
history and given the mischief sought to
be rectified by the provision, this Court
is of the view that section 4 only
operates to modify the pre-existing rule
to the extent of specifying that apostasy
does not ipso facto dissolve a marriage
contracted under Muslim personal law. It
cannot be said-certainly not without doing
some violence to the words of the statute-
that the plain and simple meaning of the
words employed in the provision admits of
the construction that apostasy does not
per se dissolve a marriage contracted
under Muslim personal law.



37. That being the construction of section
4, it necessarily follows that a woman
married under Muslim personal laws, upon
apostatizing, will be entitled to sue
under section 2(ix) seeking dissolution of
the marriage and this Court holds so. All
that is required is that she proves before
the appropriate Court that she intended to
and has indeed apostatized from Islam and
accordingly seeks a declaration that the
marriage has come to an end.



8. In our understanding, however, as noted
earlier, Section 4 of the Act of 1939
materially changes the consequences of a
situation where a Muslim woman renounces
Islam or convert to some other faith. This
act of her itself would not dissolve the
marriage. What the first proviso of
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Section 4 saves is not her right to
approach a Court for declaration or
dissolution on this ground under Section 2
of the Act, but her right to seek
dissolution of marriage if she can
establish any of the grounds available
under Section 2 of the Act of 1939.
However, this would not apply in case of a
woman, who was not born into Islam but was
converted into Islam and thereafter,
reconverted herself to her original faith.
In such a situation, the position of law
as prevailing prior to the Act of 1939
would continue to operate. If, therefore,
the effect of her reconversion to her
original faith is dissolution of marriage,
the situation would not be altered by
virtue of Section 4 of the Act of 1939.
She would, therefore, not have to seek
dissolution of marriage under any of the
grounds mentioned in Section 2 of the Act
of 1939 including Clause (ix) thereof. She
may, however, seek a declaration to that
effect by establishing necessary facts and
law on the subject. This is precisely what
she desired to do for which purpose she
filed the family suit. Such suit could not
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have been rejected in any of the clauses
of Order 7 Rule 11 of CPC.


9. The decision of Kerela High Court in case
of K.C.Moyin vs. Nafeesa (supra) was
rendered in a different background. It was
a case where a Muslim lady claimed
conversion to some other religion and
thereafter, remarried on the pretext that
by such conversion her earlier marriage
stood dissolved. Faced with the
prosecution for bigamy under Section 494
of the IPC, she pressed her conversion
from Islam and consequent dissolution of
marriage as a defense. It was in this
background that the Court held that she
could seek divorce only on the grounds
mentioned in Section 2 of the Act of 1939
and no other ground. This case was founded
on different facts since it was not a case
of reconversion by a woman to her original
faith having at one point converted into
Islam.


10. Likewise, the decision of Andhra Pradesh
High Court in case of Sarwar Yar Khan vs.
Jawahar Devi (supra) does not lay down any
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ratio which can be applied in the present
case. In fact, in such decision the Court
came to the conclusion that by virtue of
res judicata the question of dissolution
of marriage had achieved finality. The
Court went on to held that till such
dissolution, the Act of 1939 did not apply
to the State of Hydrabad since the
territories in question were not part of
the Indian Union till such date. For
apparent reasons, this judgement would be
of no assistance to the respondent.


11. To refer her family suit one for
dissolution of marriage under Section 4 of
the Act of 1939, at best may be a
misdiscription. The suit was undoubtedly
not barred by any law. At any rate the
petitioner in the family suit had to
establish necessary facts by leading
evidence. If she succeeded in establishing
that she was the Christian woman who
converted into Islam and later on
reconverted to Christianity, she would,
thereafter, have to present before the
Court the legal fall out of such
established facts. Her suit could not have
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been dismissed at the threshold. The Trial
Court committed a serious error in non-
suiting the appellant without full fledged
trial. An error was committed in coming to
the conclusion that, she not having
claimed dissolution of marriage under
Section 2 of the Act of 1939 her plaint
was barred by law.


12. In the result, the impugned judgement
of the Family Court dated 21.08.2013 is
set aside. Proceedings are remanded back
before the Family Court for considering
the same after permitting both sides to
lead relevant evidence on record. First
appeal is allowed and disposed of
accordingly.





(AKIL KURESHI, J.)







Jyoti
(VIPUL M. PANCHOLI, J.)

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