KANCHAN B R Vs. AKASH ALIAS YUSUF HUSSAIN

JUDGEMENT

(1.) The plaintiff (wife) has pleaded that she is a Hindu and that the defendant (husband) had converted from Islam to Hinduism around the time of their marriage on 29.9.1993. There can be no controversy that a Hindu ceremony did take place, since the plaintiff has filed photographs of the event with her plaint. Predicated on this version of their marriage, the plaintiff has invoked Section 18 of the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as 'H.A. & M. Act'), and has prayed for the allocation of property MA-1/4-3A, Garden Estate, Gurgaon, (hereinafter referred to for convenience as 'the matrimonial home'), as her exclusive separate residence. Consequential and ancillary injunctive reliefs have also been asked for by the plaintiff. To the contrary, it is the husband's case that the parties married each other on 26.8.1993 in accordance with Muslim law after the plaintiff embraced Islam. It is contended that the alleged marriage in the Arya Samaj Mandir on 29.9.1993 is of no legal efficacy as neither of them were Hindus, and they had already been married under Islamic rites. It is thus submitted that the H.A. & M. Act would have no application to the parties. The property viz. HA-1 /4-3A, Garden Estate, Gurgaon, Haryana, is exclusively owned and possessed by the husband, although the wife also resides therein. It is contended that the Courts at Delhi have no territorial jurisdiction. This is the conspectus of the dispute, in precis.

(2.) At the first hearing I had been persuaded to restrain the husband from visiting the matrimonial home accompanied by any other person. However, I had recognized his entitlement to reside in the premises provided he does not assault the wife. These orders are sought to be recalled by the defendant, and further varied by the plaintiff to the effect of a total ban on the entry to the home of the defendant.

(3.) The case was argued at length by the respective Counsels for the parties. Mr. Y.P. Naruia, learned Counsel for the plaintiff had cited Dr. Abdur Rehman Undre v. Padma Abdur Rehman Undre, 2 (1982) D.M.C. 156, where the Division Bench eruditely considered the complicated aspect of Private International Law concerning a marriage between members of different faiths solemnized in England, but sought to be dissolved in India. The Bench opined that a public declaration of the person ceasing to belong to one religion and accepting the other should be unequivocally available. Strict proof is required. It cannot be easily inferred, more so when the person concerned denies the factum of conversion. It must also be evident that there was a genuine change of faith. The Bench divided the house between the spouses. Predicated on this decision, it was contended by the wife that there was not even a smattering of evidence and/or pleading to the effect that the Kalma or any other ceremony of like nature had been performed. The entire case of an Islamic marriage having been performed is straightaway demolished in the absence of any averment pertaining to performance of Kalma. Mr. Narula also relied on the decision of the Court of appeal in Lee v. Lee, 1952 (1) All England Law Reports C.A. 1299, where the legal propriety of the issuance of an order restraining the husband from entering into any contract for the sale of the residence until the wife and children were provided with suitable residential accommodation, was upheld. In Silverstone v. Silverstone, 1953 (1) All England Law Reports 556 the Court issued an injunction to prevent the husband from occupying the home although it belonged to him so as to ensure that the wife would not be pressured into abandoning her petition by evicting her from the house. The Court of appeal applied this decision in Jones v. Jones, (1971) 2 All E.R. 737, where all three of the learned Judges distinguished the opinion in Montgomery v. Montgomery, [1964] 2 All E.R. 22, and restricted the operation of the latter to cases where no matrimonial proceedings were then pending; both spouses had been residing in the tenanted matrimonial home, separately for some time, when the injunction was prayed for by the wife and declined. Mr. Narula further contended that Section 18 of the H.A. & M. Act sufficiently protected the wife's prayer for a separate residence in the backdrop of the alleged violence meted out to her by the husband, and that Section 23 did not dilute this right in any proportion since it dealt only with the amount to be granted..