Kalpana Sharumkasim vs Abdul Khader

N.K. Patil, J.—This appeal by the appellant-wife is directed against the impugned order and decree dated 01/04/2011 passed in M.C. No. 11/2008 by the Principal Senior Civil Judge and CJM, Kolar, wherein, the petition filed by the appellant u/s 27 of Special Marriage Act for dissolution of marriage has been dismissed. The brief facts of the case are: the appellant/petitioner is the legally wedded wife of respondent-husband. She is a Christian and respondent is a Muslim and she got converted to Islam and called herself as Salma Sultana. She has contended that, their marriage was solemnized at the office of Sub-Registrar, Bangarpet and they became husband and wife and led happy married life. Out of the said wedlock, a female child was born and it is in the custody of the husband. It is further contended by her that, the respondent made unnecessary allegations against her even though she converted to Islam contending that she attended prayer in Church, though she did not go to Church. It is contended that, with an intention to separate from her, he entered into an agreement before Notary on 4.5.1999 for dissolution of marriage and on 21.5.1999 before the Committee of Hazarath, she has agreed for dissolution of marriage and because of differences of opinion, they are living separately and she is not interested in joining the respondent. Further, she has contended that as per the Special Marriage Act, they are not husband and wife and that the respondent has taken another wife and living with her. Further, she has contended that husband has filed G & WC 1/2000 seeking guardianship of minor child and it was allowed by the Court as the minor child wanted to join her father. She has also contended that on the ill advise of enemical persons, the respondent was ill treating her and therefore, she intends to live separately. Hence, she prayed to allow the petition.

Upon service of notice, respondent-husband appeared before the Trial Court and filed his written statement denying the petition averments, but admitting the marriage between him and appellant, and also the birth of the child who is now major. It is contended by him that his wife renounced her adopted faith and changed her name and that of her minor female child from Muslim names to Christian names and therefore, the difference of opinion arose between them and they entered into an agreement before the Committee of Hazrath Latheefa Banu Masjid, Gowripet, Kolar and their marriage was not dissolved under the Special Marriage Act and hence, they continue to be the husband and wife. Further, he has admitted that they are living separately, but it is not at his instance and that the appellant -wife is working as a teacher in government school and therefore, she is not entitled for maintenance. He has contended that he is interested to live with her. Further he contended that, though they were married before the Sub-Registrar, Bangarpet, their marriage was again solemnized as per the Islamic Shariyath. It is contended that without his consent and inspite of joining the Islam faith she started to attend Sunday mass prayers and she did not heed to his advise and therefore, they entered into an agreement or. 4.5.1998 and also on 21.5.1995 and she agreed to give minor child to the respondent. It is also alleged by him that she was living with her paramour Nirmal Kumar and at the ill advise of the said person, she was ill treating the minor child who was with her under temporary custody and she and her paramour had left Kolar and started living at Bangalore by living the minor child at Kolar and the child came to his house and narrated everything and therefore, he filed a case before the Court and obtained her custody. The appeal filed by the appellant was dismissed by this Court. Therefore, he prayed to dismiss the said petition.

On the basis of the pleadings of both the parties available en file, the Trial Court has raised the following points for its consideration:

(i) Whether the petitioner has made out sufficient grounds to grant the relief prayed by her?

(ii) What order?

In order to prove their respective cases, the wife has got examined herself as PW1 and got marked Exs.P1 and 2. On the other hand, respondent has got examined himself as RW1 and got marked Exs.R1 to 7.

The Trial Court after hearing the learned counsel for both the parties and after evaluating the oral and documentary evidence available on file, has answered point No. 1 in the negative and as per final order, dismissed the petition, on the sole ground that respondent belongs to Mohammedan community and under the Mohammedan law, he can take maximum four wives provided he could maintain all of them and there is no prohibition for him to go into the second marriage. Being aggrieved by the said reasoning and the order passed by the Trial Court, the wife has presented this appeal.

We have heard learned counsel for the appellant and learned counsel for respondent.

The submission of the learned counsel for the appellant is that, the impugned order and decree passed by the Trial Court is liable to be set aside at threshold. To substantiate the said submission, he has taken us through Section 27 (1)(A) of the Special Marriage Act and submitted that, as per the said Act, if the husband after the solemnization of the marriage had voluntarily sexual intercourse with any person other than his or her spouse, the parties can move for divorce. But the Trial Court without considering the said provision has proceeded to pass the order on presumptions and assumptions. Therefore, he submitted that the impugned order is liable to be set aside.

Per contra, learned counsel for respondent, inter-alia, contended and supported the impugned order passed by the Trial Court. Further he submitted that, the Trial Court after appreciating the oral and documentary evidence available on file has passed the said order which is just and reasonable and therefore, interference by this Court is not called for.

After hearing the learned counsel for both the parties and after careful perusal of the impugned order and decree passed by the Trial Court, it emerges that, the Trial Court has committed an error, illegality, much less material irregularity in passing the said order only on assumptions and presumptions, without going into the actual facts of the case. It is the case of the appellant -wife that she has filed a petition u/s 27 the Special Marriage Act for dissolution of marriage. But this aspect of the matter has not been considered or appreciated or any finding as such has been recorded by the Trial Court by assigning valid reasons. Even, the Trial Court has erred in referring at para-9 of its order that, "admittedly, respondent is a Mohammedan and in Mohammedan law he can take maximum four wives provided he can maintain all of them and it is not the case of the petitioner that the respondent is incapable of maintaining more than one wife. Such being the case, even if it is presumed that respondent has taken a second wife it is not barred under law, especially, as the petitioner has admitted that she had converted to Islam and their marriage had taken place at Masjid also". That is not the case of either of the parties. The wife has filed a petition u/s 27 of the Special Marriage Act. But the Trial Court without considering the relevant materials available on file and without appreciating the oral and documentary evidence and without following the relevant provisions of the Act has passed the impugned order. Therefore, we are considered view that, in view of not considering the provisions invoked by the wife and in view of not properly appreciating the oral and documentary evidence by the Trial Court, the impugned order cannot be sustained and is liable to be set aside. Having regard to the facts and circumstances of the case, the instant appeal is allowed in part.

The impugned order dated 1st April 2011 passed by the Trial Court in M.C. NO. 11/2008 is hereby set aside and the matter stands remitted back to the Trial Court for reconsideration afresh, with a direction to pass appropriate orders in accordance with law, after affording reasonable opportunity of hearing to the parties and dispose of the same, expeditiously.

Further, both the parties are permitted to file their applications for additional oral and documentary evidence, within a period of three weeks from the date of receipt of a copy of this judgment.

If such applications are filed by the parties, the Trial Court is directed to receive the same and pass appropriate orders, in accordance with law and dispose of the case as per the above directions issued by this Court. Ordered accordingly.