Shahanaz Begum and Others vs Lalitabai and Others

Budihal R.B., J.—Since these two appeals are in respect of the same judgment passed by the trial Court. The parties are same and common question of law and facts are involved in these appeals, they have been taken up together for final disposal.

MFA No. 30721/2011 has been filed by the appellants, who claims to be the wife and children of deceased Dharmarao, being aggrieved by the judgment and order passed by the trial Court at Gulbarga, dismissing the suit for declaration of their right for entitling the service benefits of the deceased Dharmarao from the Excise Department.

MFA Crob. No. 1057/2011 has been filed by one Smt. Lalitabai, who claims to be the wife of the deceased Dharmarao, being aggrieved by the findings recorded by the trial Court in the body of the judgment that Dharmarao was converted to Islamic Religion then he married appellant No. 1 in MFA No. 30721/2011 and in the wedlock appellant Nos. 2 and 3 were born to them. The appellants who claims to be the wife and children of the deceased Dharmarao filed the suit, seeking declaration of their status as wife and children and they are entitled to service benefits of Dharmarao and also seeking perpetual injunction against the defendants, claiming benefits from defendant Nos. 2 and 3 to pay the service benefits to the plaintiffs in the said suit.

The brief facts of the case of the parties before the trial Court that the plaintiffs therein have filed a suit, contending that Dharmarao was working as Excise Guard in Excise Department and though he married defendant No. 1-Lalitabai but subsequently, he converted to Islam Religion and married plaintiff No. 1 and in the wedlock, plaintiff Nos. 2 and 3 were born to the couples. It is also their contention that in the said suit regarding his conversion, he has given paper publication in Kranti Kannada Daily Newspaper, dated 08.06.1995 and he has also filed an application before the Excise Inspector for effecting the changes in his official records of his lawful conversion to Islam Religion. Defendant No. 1-Lalitabai appeared in the suit and filed the written statement, denying the allegations made by the plaintiffs in the suit that Dharmarao converted to Islam Religion and thereafter married plaintiff No. 1 and plaintiff Nos. 2 and 3 were born to the couples in the wedlock. It is her contention that she was the legally wedded wife of the deceased Dharmarao and her marriage was not dissolved till the death of Dharmarao and she is entitled for service benefits of Dharmarao. Hence, she sought for dismissal of the suit.

On the basis of the pleadings, the trial Court has framed as many as seven issues and ultimately dismissed the suit filed by the plaintiffs. But, during the course of recording the findings, it has been observed by the trial Court that the material placed on record goes to show that the deceased Dharmarao was converted to Islam Religion and married with plaintiff No. 1 and in the wedlock, plaintiff Nos. 2 and 3 were born. But, however the trial Court has observed that this marriage though performed was void marriage and the children i.e., plaintiff Nos. 2 and 3 are the illegitimate children of deceased Dharmarao. Being aggrieved by dismissal of the suit, the plaintiffs have preferred an appeal on the grounds as mentioned in the appeal memorandum. Being aggrieved by the findings recorded by the trial Court that there was conversion to Islam Religion and the deceased''s marriage was performed with plaintiff No. 1 and plaintiff Nos. 2 and 3 were born to the couples, defendant No. 1 has filed the cross objections.

Heard the arguments of the learned counsel appearing for the appellants and also learned counsel for the cross objector.

Looking to the material placed on record and admitted facts even according to both the parties that the deceased Dharmarao married defendant No. 1 - Lalitabai and she was the legally wedded wife. Even during the course of cross-examination, the witnesses on the side of the plaintiffs also admitted the same in respect of defendant No. 1. It is also admitted fact that the deceased Dharmarao was working as Excise Guard in the Excise Department therefore, it has been observed by the trial Court that even if he converted to Islam Religion and married plaintiff No. 1 but being the Government Servant as per rules in Karnataka Civil Service (Conduct Rules), 1966 and as per the Rule 28(1) of the Rules, he ought to have taken the prior permission of the Government before marrying to plaintiff No. 1, which was not done in this case. But according to the contention of the learned counsel for the appellants, he moved an application seeking permission and it is fairly conceded by the learned counsel that no such permission was produced before the trial Court to show that earlier to marriage with plaintiff No. 1, he obtained the permission from the Government. So, this goes to show that even if it is assumed for the sake of appreciation that the deceased Dharmarao married plaintiff No. 1, it is in violation of the mandatory provision of Rule 28(1) of the said Conduct Rules. It is also the contention of the learned counsel appearing for the appellants who claims to be the wife and children of the deceased Dharmarao that once he converted into Islam Religion then he is entitled to have four wives under the personal law. But, looking to the material placed on record, it clearly goes to show that when the deceased was Government Servant and even if the personal law was there, permitting him four wives, notwithstanding the said fact, he has to take prior permission of the Government under the said provision of law. The material goes to show that till the death of Dharmarao, his marriage with defendant No. 1 was subsisting and there was no dissolution of the marriage by the decree of divorce form the competent Court. The conversion of Dharmarao to Islam Religion may be one of the grounds for another spouse to apply for seeking divorce under Section 13(iii) of the Hindu Marriage Act. But, here defendant No. 1-Lalitabai claims that the couples not at all invoke such provision nor there was any decree for divorce dissolving their marriage. Regarding the claim of the plaintiffs that he converted into Islam Religion, the trial Court referred to the decision of the Hon''ble Supreme Court reported in Smt. Sarla Mudgal, President, Kalyani and others Vs. Union of India and others, AIR 1995 SC 1531 : (1995) CriLJ 2926 : (1995) 2 DMC 351 : (1995) 4 JT 331 : (1995) 3 SCALE 286 : (1995) 3 SCC 635 : (1995) 1 SCR 250 Supp : (1995) 2 UJ 764 . Wherein it has been clearly observed by the Hon''ble Supreme Court as under:

"21. A Hindu marriage solemnized under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying again would not, by itself dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per se void.

The real reason for the voidness of the second marriage is the subsisting of the first marriage which is not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statue if the second marriage of the convert is held to be legal".

Regarding the cross objections filed by the wife of the deceased Dharmarao, the findings recorded by the trial Court that there was factum of conversion to Islam Religion and he married plaintiff No. 1 and begotten the children i.e., plaintiff Nos. 2 and 3 was against the evidence placed on record, both oral and documentary. In this connection, the learned counsel for the cross objections relied upon the document Ex. P14 the paper-publication, which has been considered by the trial Court and on the basis of the said publication, the trial Court has drawn the inference that it goes to show that the deceased was converted to Islam Religion. But, as it is submitted by the learned counsel for the cross-objector that except this paper-publication, the auditor or any other person from the said publication has not been examined before the Court to prove that it was as per the request of the deceased Dharmarao such publication has been made in the newspaper.

We have also perused the other documents Ex. D2 -LIC premium receipt. It is much after the alleged date of conversion of the deceased Dharmarao into Islam Religion. On perusing this exhibit, it clearly goes to show that the name of the deceased was mentioned only as Dharmarao and his name after conversion as Mohd. Farooq was not at all forthcoming in the said document. In the said document, it is also mentioned that Lalitabai was the nominee as mentioned by the deceased Dharmarao. So this subsequent document even after the alleged date of conversion also goes to show that the deceased has nominated the 1st wife Lalitabai as the nominee and there is no mention with regards to the plaintiffs who claims to be the wife and children in the said document.

Looking to these materials on record, they also goes to show that the trial Court has recorded the negative finding with regards to the status of the plaintiffs. But, during the course of discussion in the body of the judgment, the trial Court has draw the inference that the deceased has converted into Islam Religion and married plaintiff No. 1 and begotten children i.e., plaintiff Nos. 2 and 3. The material also goes to show that the finding recorded by the trial Court during the course of the judgment is also without any basis and it was against the documents produced on the side of defendant No. 1 - Lalitabai. Those materials were not at all considered by the trial Court while coming to such conclusion. Hence, so far as dismissal of the suit of the plaintiffs is concerned, we do not find any illegality in the judgment and order passed by the trial Court and with regard to the cross objection, the cross objector has made out a case that findings recorded by the trial Court are against the material placed on record. Hence, appeal is dismissed. The cross objection is allowed and findings recorded are hereby set aside.

With these observations, both the matters are disposed of.