ANDAL VAIDYANATHAN Vs. ABDUL ALLAM VAIDYA

JUDGEMENT

(1.) THE appellant who is a Hindu non -Brahmin was married under the Special Marriage. Act (Act III of 1872) on the 13th May, 1934, to the respondent who was then a Hindu Brahmin. A daughter was born to the parties some two years later. In the month of May 1944, the respondent became a Mahomedan and called upon his wife to embrace the Mahomedan faith. She refused to do so and consequently the respondent filed a suit in the City Civil Court for a declaration that the marriage between him and the appellant had become dissolved. The principal Judge of the City Civil Court tried the case and came to the conclusion that the provisions of the Special Marriage Act: did not preclude the operation of the personal law of a Mahomedan and therefore, as the appellant bad refused to embrace her husband's religion, the marriage must be deemed to have been dissolved. The defendant has appealed.

(2.) WE have no hesitation in stating that the learned Principal Judge misconstrued the relevant provisions of the Special Marriage Act. When these are understood it is abundantly clear that the marriage between the appellant and the respondent could only be dissolved under the provisions of the Indian Divorce Act, 1869.

(3.) SECTION 16 of the Special Marriage Act provides that a person married under it, who, during the lifetime of his or her wife or husband, contracts another marriage, shall be subject to the penalties provided in Sections 494 and 495 of the Indian Penal Code for the offence of marrying again during the lifetime of a husband or wife, whatever may be the religion which he or she professed at the time of the second marriage. Therefore a person married under the Special Marriage Act commits bigamy if he marries again during the lifetime of his spouse and it matters not what religion he professes at the time of the second marriage.