High Court of Tripura Agartala Mat · 2022

the appellant as well as Mr. T.D. Majumder, learned senior counsel assisted by Mr. T. Halam, learned counsel appearing for the respondent. The respondent filed a petition [hereinafter referred to as the suit] under Section 27 of the Special Marriage Act, 1954 seeking dissolution of the marriage that subsisted between the respondent and the appellant. The solitary grounds taken in the said suit is cruelty within the meaning of Section 27(1)(b) of the Special Marriage Act,

1954. According to the respondent, the marriage was solemnized under the customary law of her community and such marriage was conducted by a Christian priest as the respondent is a Christian by faith and she was never converted to any other faith. On the contrary, the appellant has stated that the respondent was converted to Islam after reading out five Kalmas and thereafter, she was rechristened as Sushmita Begam. In the written statement, the appellant has stated that the marriage was conducted by one Imam known as Abu Sayed Gazi and the role of the Wakil-father was played by Liman Miah Khadim. For purpose of the marriage, Moharana or mehr was determined at Rs.500/- only. According to the appellant, after marriage he lived with the respondent and from the said marriage, a male child namely, Ayan was born. But, after birth of the said son, the respondent left his residence and started living separately by disowning the obligations of the marital relation.

Even at his instance, the local elders tried to reconstruct the marriage but, they failed. The appellant has also made allegation against the respondent in his written statement that the respondent is in the Police Service and her life-style has been completely changed in the course of time. She has become highly ambitious. In para.24 of the written statement, the respondent himself has stated

……..a sense of member of high society with a believe(sic) of Christianity and she always feel that I am not matched with her as a life partner in the context of present situation, and out of that she filed the present divorce petition without any valid ground and reason.

It is a clear admission that even after marriage, the respondent was pursuing her faith of Christianity. Therefore, it itself has laid out doubt as to the statement of marriage according to Muslim personal law, as claimed by the appellant in his written statement.

On the face of the rival contentions, as regards the cruel treatment by the appellant, the Judge, Family Court, Udaipur, Gomati Tripura has framed the following issues in order to determining the issue of dissolution of marriage under Section 27 of the Special Marriage Act, 1954: (I) Whether the case is maintainable or not. (II) Whether the petitioner was subjected to cruelty by the respondent. (III) Whether the parties are entitled to any other relief/reliefs in this case. Notably, no issue was framed whether there is any valid marriage or not. However, to prove their respective cases, the respondent adduced three witnesses including herself [PW-1]. She had also adduced one Dilip Kr. Uchoi [PW-2] and Adhikar Uchoi [PW-3]. The appellant in order to rebut the evidence of the respondent has introduced six witnesses including himself [DW-1]. Abu Sayed Gaji [DW-2, the imam], Jakir Hossain Podder [DW-3], Liman Miah Khadim [DW-4, the vakil], Mohan Miah Podder [DW-5] and Abdul Gafur Miah Chowdhury [DW-6] were examined by the appellant.

While deciding the issue of maintainability of the suit, the Judge, Family Court has observed that it becomes obvious from the claim and the counter-claim of the parties that their marriage was never solemnized as per prescription of the Special Marriage Act. In addition, so far law is concerned, Chapter- II of the Special Marriage Act provides as to how a marriage is solemnized under the Special Marriage Act. For solemnization of marriage under the Special Marriage Act, the procedure as prescribed under Section 5 and 6 are to be followed. According to Section 11(2) of the Special Marriage Act, the certificate of marriage is issued by the Marriage Officer which is the conclusive evidence of the fact that a valid marriage under the said Act has been solemnized. It is admitted position that even no marriage under Section 15 of the Special Marriage Act, 1954 can be registered. But, the Judge, Family Court has observed that in the wedlock, a son has been born and thereafter, the Judge, Family Court has further observed that the respondent did not examine the Christian priest who has been claimed to have conducted her marriage.

But, the appellant has proved the Shariyat marriage by aid of DW-2 and DW-4. The Judge, Family Court has believed their testimonies. On taking recourse to Section 10(3) of the Family Courts Act, 1984 the Judge has taken over the jurisdiction under the Dissolution of Muslim Marriages Act, 1939 for granting divorce. The suit under the said Act has to be filed by a Muslim woman. The respondent has refused to accept her as Muslim woman. However, based on the evidence, the Judge, Family Court has believed the material placed by the respondent herein as evidence of cruelty and finally, granted the divorce. As such, it has become pertinent to look into the evidence of DW-2, Abu Sayed Gaji. Abu Sayed Gaji did say that he converted one Christian girl to Islam and her name was given as Sushmita Begam, but he did not state the pre-marriage name of Sushmita Begam. As the respondent (the petitioner in the suit) did not admit that she was ever converted to Islam, the proof of identity becomes highly pertinent to believe the evidence of DW-2, as the DW-2 has nowhere stated that pre-marriage name of Sushmita Begam.

Even Liman Miah Khadim, DW-4 did the same thing. But, he has referred that the petitioner meaning the respondent herein with whom the marriage was solemnized, but no pre-marriage name has been uttered by him as well. The other witnesses such as Mohan Miah Podder, DW-5 and Abdul Gafur Miah Chowdhury, DW-6 have stated that the marriage of the appellant was solemnized with one Sushmita Begam on 12.08.2009. On the question of marriage, the evidence of the respondent (the petitioner in the suit) is equally pertinent to strike a balance, so far it is relates to establish the probability of fact. PW-1, the respondent herein has categorically stated that marriage was solemnized with the appellant as per Tribal customary rites and according to the procedure as prescribed by the Christian Marriage Practices. Before marriage the appellant assured her that he will be converted to Christianity, but, the appellant did not keep his word.

She has also admitted that under the notion of marriage, she lived with the appellant and in the wedlock, a male child was born. She has further stated that she has been serving under the government but, she was subjected to inhuman cruelty. Significantly, PW-1 has stated that before her marriage she made it clear to the appellant herein that she would never convert to Islam. The appellant has to convert to Christianity. Initially, the respondent was not willing to marry the appellant as he was Muslim and she denied to follow the faith of Islam. She has also given a brief detail of cruel treatment meted out by the appellant. She has been corroborated by PW-2 & 3 on every aspect. Ms. S. Deb (Gupta), learned counsel appearing for the appellant has raised the question of maintainability of the suit under Section 27 of the Special Marriage Act inasmuch as, no marriage has been proved under the Special Marriage Act, 1954.

Hence, it was the duty of the Judge, Family Court to dismiss the suit in limine. But, by adopting the procedure under Section 10 of the Family Courts Act, 1984 the jurisdiction has been converted and such conversion cannot be permitted by law and there, the Judge, Family Court has erred seriously. She has further submitted that there is no proof of cruelty for granting a divorce even under Section 27(1)(b) of the Special Marriage Act, 1954 and as such, the suit could not have been decreed. From the other side, Mr. T.D. Majumder, learned senior counsel appearing for the respondent has quite emphatically stated that each of the parties are denying the fact of marriage as advanced by the appellant so far its mode of solemnization is concerned. But, he has fairly admitted that strictly going by the provisions of Special Marriage Act, 1954, there is no evidence that a marriage was solemnized between the parties under the Special Marriage Act.

According to Mr. Majumder, the claim of the respondent is that the marriage or the semblance of marriage, whatever way the incidence is glanced at, it was carried out in accordance with the customary rites and the marriage was conducted by a Christian priest. Whether a person has been converted to Islam or not cannot prove by the person himself/herself. But the respondent has very categorically asserted that she was never converted to Islam. Even Mr. Majumder, learned senior counsel has pointed out that DW-2 was vague while he was stating that the respondent was converted to Islam by him and he conducted the marriage of the appellant and the respondent according to the Shariyat laws. In the face of the denial of the respondent, the court ought not have been accepted the incidence of conversion in as much as faith is a matter of personal choice. We have scrutinized the records carefully and we are really at jeopardy that, how the Judge, Family Court has inferred that there was a marriage under the Shariyat law.

We do not find any reliable evidence of solemnization of marriage under the Shariyat law for two basic reasons viz. (a) the conversion cannot be believed in as much as on the face of serious opposition by the respondent unless the conversion is voluntary and accepted by the convert, it is not conversion and it cannot be accepted as conversion and (2) the marriage under the Shariyat law requires the consent (Kabuliyat) of both the spouses. But, the respondent is very categorical that she never yielded to conversion to Islam and neither as Islamist woman, she had given any consent for marriage. Even though we have seen some evidence of the cruelty during the time when the parties were living together. It, however, cannot be denied that during the living together, one male child namely Ayan was born and he is in the custody of the respondent now. It is also on record that appellant is a government servant and according to Ms.

Deb (Gupta), learned counsel for the appellant, the appellant is a Fireman working under the Department of Fire Services. We have given our considerations to all the relevant facts and we are of the view that there was no marriage between the parties. They were living together under notion of marriage but the marriage as described by them, cannot be treated as a marriage neither under the Shariyat law or under the Christian marriage practices. Therefore, we are inclined to declare that there was no marriage within the province of law, between the parties. As consequence thereof, we are pursuaded to observe that the child who was born out of living together of the parties deserves the fair maintenance from both the parents. Since the child is in the custody of the respondent, we direct the appellant to pay a sum of Rs.6,000/- every month for the child and the amount shall be transmitted to the respondent within 10th day of every English calendar month by money order.

The charge or commission of money order shall be borne by the appellant. In the result, the suit stands dismissed as there was no marriage subsisting between the parties and hence, there is no question of granting the decree of divorce. The parties may act as individual without any obligation of marriage or as unmarried person. Hence, the appeal is allowed. The judgment and decree dated 14.11.2018 passed in T.S.(Divorce) 34 of 2017 stands set aside subject to the direction relating to maintenance of the child. Our observations will have the effect of declaration under law. Registry is directed to prepare the decree accordingly and to send down the records thereafter. Pending applications, if any, shall also stand disposed of. JUDGE JUDGE Sabyasachi G.