ABDUR RAHIM UNDRE Vs. PADMA ABDUR RAHIM UNDRE

JUDGEMENT

(1.) The suit, the decision in which has led to this appeal, was bitterly fought between the parties and lengthy evidence was recorded in the matter. The suit and the appeal raise interesting and important questions of law. Even before me Mr. Bhatt for the appellant-husband argued the appeal at great length on facts and also made detailed submissions on the questions of law involved. Mrs. Nanavati started her arguments with submissions on questions of law. On hearing her, I found that the appeal is capable of being disposed of on one question of law only since her submission on that question appeared to have great substance. So I stopped her from going into the facts. Mr. Karim for the appellant very ably tried to dislodge her contention but without success.

(2.) The plaintiff-appellant is the husband of the defendant-respondent. On 6-5-1966, the plaintiff then a Muslim and the defendant then a Hindu got married in England by getting the marriage registered under the civil law applicable there. Both were and are Indian citizens. They returned to Bombay sometime in April 1969. According to the plaintiff the defendant got herself converted to Islam on 29-12-1969 followed by nikah on the same day. A few years thereafter there were disputes between them and appellant purported to dissolve the marriage by pronouncing talaq in accordance with Muslim law. It is alleged by the appellant that the respondent thereafter broke into his residential flat which was the matrimonial home, forcing the plaintiff to file the present suit which is, inter alia, for restraining the defendant from entering the suit flat. The ground on which the relief was sought is that after the divorce the respondent is not entitled to enter the flat. The respondent counter claimed, inter alia, for an injunction restraining the plaintiff from interferring with her entering and staying in the suit flat.

(3.) Mr. Bhatt for the appellant submits that the conversion and nikah are proved. He has very vigorously attacked the appreciation of evidence by the learned trial Judge and strongly assailed the findings as being completely unjustified by the weight of evidence, particularly in the light of the respondent not being a truthful witness, she having retracted several of her statements made on oath earlier. According to Mr. Bhatt as the parties were Muslims at the relevant time, they were governed by Muslim law and the appellant had a right to give talaq which he had done and the marriage stood dissolved. In support of his contention Mr. Bhatt relied on (Khambatta v. Khambatta) 36 Bom.L.R. 1021. He referred to sections 18(1) and (4) of the Foreign Marriage Act and contended that the Muslim personal law was a law in force, particularly as the same had been recognized by the Muslim Personal Law (Shariat) Application Act, 1937 (the Shariat Act). He contends that even if conversion was not proved, a marriage between a Muslim and a Hindu is only an irregular marriage, recognised by Muslim law as "Fasid" marriage and the plaintiff was within his rights to dissolve the same by talaq.