FAHEEM AHMED Vs. MAVIYA ALIAS LUXMI

JUDGEMENT

(1.) By this appeal filed under Section 39 of the Special Marriage Act, 1954, the Appellant seeks to challenge the judgment and decree dated 18.11.2008 passed by the learned trial court, whereby the petition filed by the Respondent under Section 24(2) of the Special Marriage Act was allowed.

(2.) Brief facts of the case as set out in the petition relevant for deciding the present appeal are that the parties were friends since college days and were also subsequently classmates, pursuing a course together at the Gems Craft Jewellery Institute, Lajpat Nagar, New Delhi. As per the case of the Respondent, she wanted to get the membership of the library in Jama Masjid and on the assurance of the Appellant in helping her get the same, he persuaded her to convert to Islam for this purpose. That for this purpose, the Respondent signed and executed certain documents which the Appellant claimed to be the registration of marriage and conversion certificate and that by virtue of those the Respondent became his wife. The Respondent hence preferred a petition under Section 24(2) of the Special Marriage Act, 1954 for having the registration of the marriage declared to be of no effect which vide judgment and decree dated 18.11.08 was decreed in favour of the Respondent. Feeling aggrieved with the same, the Appellant has preferred the present appeal.

(3.) Assailing the impugned judgment and decree, Mr. S.C. Sagar, learned Counsel appearing for the Appellant submitted that the learned trial court committed a jurisdictional error in entertaining the suit of the Respondent under Section 24(2) of the Special Marriage Act. The contention of counsel for the Appellant was that the said suit at best could have been treated by the learned trial court under Section 25 (iii) (a & b) of the Special Marriage Act, for which the prescribed period of limitation is one year from the date of the alleged discovery of fraud by the Respondent and reckoning the said period of one year from the date of the registration of the marriage i.e. 28.11.2005, the said suit filed by the Respondent on 08.05.2007 was clearly barred by time. Counsel for the Appellant further submitted that the learned trial court ignored the documentary evidence which was proved on record by the Appellant to prove the conversion of the Respondent from Hindu religion to Muslim religion and also solemnization of the marriage between the parties according to Muslim religion. The contention of counsel for the Appellant was that the conversion affidavit dated 22.11.2005 was duly proved on record by the Appellant vide Ex.PW-1/R-9, Nikahnama as Ex.PW-1/R-11 and public notice about the change of name of the Respondent from Luxmi to Maviya vide Ex.PW-1/R-21. Counsel for the Appellant further submitted that even a complaint in writing dated 09.02.2007 Ex.PW-1/R-12 was addressed by the Respondent to the SHO, P.S. Gandhi Nagar wherein she had disclosed the fact of her marriage with the Appellant and sought her safety from her parents. Counsel thus contended that these vital documents could not have been ignored by the learned trial court which clearly establishes the factum of conversion as well as the marriage between the parties. Counsel for the Appellant further argued that the Respondent is a well-educated lady and she fell in love with the Appellant and voluntarily came forward to agree for the conversion as well as for the said marriage according to Muslim customs. Counsel further submitted that all the said facts were well within the knowledge of the parents of the Respondent and the same were duly established during the cross-examination of the witnesses produced by the Respondent. Counsel for the Appellant further submitted that no suggestion was given by the Respondent in the cross-examination of the Appellant who examined himself as RW-1 to suggest that he forced the Respondent for the said conversion from Hindu to Muslim religion or even any fraud was played by him upon the Respondent to seek registration of the marriage. Counsel for the Appellant also submitted that the said marriage was duly proved on record by the Appellant through the evidence of RW-2 Mr. Sadakat Ali, who witnessed the said marriage between the parties. Counsel also submitted that the registration of the marriage was also proved by the Respondent herself through the evidence of PW-4 Ajit Kumar, Steno, Additional District Magistrate Office, Saket. Counsel for the Appellant further submitted that no evidence was adduced by the Respondent to prove the alleged fraud on the part of the Appellant or on the part of the staff of the Registrar of Marriages which could establish any kind of fraud being played by them upon the Respondent. Counsel also submitted that the suit filed by the Respondent was not maintainable on account of non-impleadment of the Registrar of Marriages as a party. Counsel also submitted that the Respondent did not file any objection under Section 8 read with Section 16 of the Special Marriage Act and in the absence of the same, the registration of the marriage could not have been challenged by the Respondent.