ABDUR RAHIM UNDRE Vs. PADMA ADBUR RAHIM UNDRE

JUDGEMENT

(1.) The appelant-plaintiff Dr. Abdur Rahim Undre married Smt. Padma, respondent-defendant in the United Kingdom on 5th May 1966. At the time of marriage plaintiff Abdur Rahim was a Mohainmedan where as respondent Padma was a Hindu. Both of them were Indian citizens. Their domicile was India. Both of then held Indian passports. On 6th of May 1965 the plaintiff and the defendant went to the office of Registrar of Marriages at Weymouth. Before that a necessary notice of intention to marry was already given. There after on 6th May 1966 the parties went through the marriage ceremony before the Registrar and the said marriage was duly registered. The marriage certificate relating to this marriage duly authenticated and certified copy is also on record. From this certificate it appears that the marriage Act, 1949. After this marriage birth of Shabnam took place on 18th of May 1957. Of Shama on 19-11-68. Thereafter on 4th Apr., 1969 the plaintiff and the defendant with their children returned to India. After their return on 14th of Nove., 1969 Suhail, a boy was born. It is the case of the appellant-plaintiff that on 29th Dec., 1969 conversion of the defendant Padma took place and she was converted to Muslim religion. On the same day a Nikah ceremony was also performed. Thereafter on 21st of Nov., 1973 Sabir, a boy was born. Thereafter relations between the parties became strained and hence the plaintiff further alleged that he gave tala to the defendatn Padma on 20-4-78. This talaq was given in the absence of defendant Padma. However, an oral intimation about it was given to her in paradise apartment on the same night. It is the case of the appellant that he was forced to give divorce in view of the extreme cruelty meted out to him by Smt. Padma. She had been carrying on a sustanined and deliberate campaign of defaming him which resulted in causing acute mental tension as well as interference with his professional duties. He also alleged that due to the illtreatment meted out by Smt. Padma and her indifferent attitude towards him and the members of his family, the marriage relationship had broken down beyond the scope of reconcillation and in these circumstances he dissolved the marriage by giving unilateral talaq on 20-4-1978. After thid divorce he told the reepondentdefendant not to enter his realdential premises. However, the respondent went to the said flat, broke it open and took away several things, articles, jewellery etc. About which the appellant had to lodge a police complaint. It is the case of the plaintiff that he was in exclusive possession and occupation of the flat at Nepean Sea Road. He also contended that the four children were living with with him and were under his care and custody. As according to plaintiff he became apprehensive that the defendant was likely to enter upon and remain in the said flat with the help of hirelings and would also go to the extent of forcibly removing the children from his custody, he was constrainted to file the present suit for a permanent injunction against the defendant. The suit was filed on 24th of Apr., 1978. On the same day an ex parts injunction was granted by the Court against the defendant. On 22nd of June, 1979 the said ex parte injunction was confirmed. Therefore, the respondent filed an appeal against the said order on 21st of July 1978 bearing A.O. No. 251 or 1978. Desai. J. Vide order dated 29th Aug., 1976 confirmed the order passed by the trial Court on certain terms. After the judgment in A.O. the plaint was amended and the plaintiff also sought a declaration from the Court that the defendant was not his wife. While amending the plaint the plaintiff alleged that on 29-11-1969 the respondent- defendant had embraced Lslam and went through the Nikah ceremony at 303. Abdul Rahman Street at his father's residence and that on 20th Apr., 1978 he gave her talaq and thus dissolved marriage relationship. He alternatively contended that even assuming that the defendant was not a Muslim and was a Hindu as contended by her, still Muslim personal law was applicable to their relationship and the plaintiff was entitled to dissolve the marriage by giving talaq as per Mohammedan Law. Thus the suit filed by the plaintiff was one for declaration as well as for injunction.

(2.) The defendant denied various allegations made in the plaint and also filed a counter-claim. According to her the court had no jurisdiction to entertain and try the suit and the suit filed was misconceived and bad in law. She also contended that the plaintiff had not come to court with clean hands. According to her the marriage in England was under civil law of England She also contended that the flat in Paradise Apartment was secuted out of their joint contribution and the said flat is also her matrimonial home. Therefore she is entitled to stay therein in her own right as wife as well as joint owner. She denied the factum of conversion or Nikah, and contended that the averments made in the behalf were wholly false. She also dented the factum of divorce of talaq. She maintained that all through she was a Hindu and continues to be a Hindu even today. According to her the marriage is not yet dissolved in accordance with law and, therefore, the plaintiff is not entitled to any declaration in that behalf. She denied the alegation regarding cruelty or that the children were under protection and custody of the plaintiff. She also denied that she had any intention to forcibly remove the children with the help of hirelings. Whe also dented that she had ever broken open the flat or had illegally entered in to the same. In the counter-claim she claimed that the flat is of joint ownership. The plaintiff filed his say in reply to the counter-claim denying the allegations made therein. In view of the pleadings of the parties, the learned Judge of the Civil Court, Bomfay Iramed the following issues:

(3.) In support of his case the plaintiff examined as may as 11 witnesses including himself whereas the defendant examined herself and two other witnesses. The parties also produced documentary evidence before the trial court. After appreciating all the evidence on record both oral and documentary the tiral court came to the conclusion that the Special Marriage Act read with Foreign Mariage Act or English Law will apply to the parties as regards the marriage and divorce. He also found that the plaintiff has failed to prove that the defendant embraced Islam on 29th Dec., 1969 or was a Muslim thereafter. He also held that the plaintiff failed to prove that the defendant went through Nikah ceremony with him on 29-12-1969 as alleged. He also found that the plaintiff has failed to prove that the detendant has been duly divorced as alleged by him. So far as the flat in Paradise Apartment is concerned, the learned Judge came to the conslusion that the said flat is a matrimonial home of the defendant and the defendant is entitled to the user of the said premises for her residence, So far as the marriage in England is concerned, the learned Judge came to the conclusion that the marriage between the parties on 6th of May, 1966 in England was under the civil law of civil Marriage Act and is still subsisting. As a necessary consequence of these findings he (we?) dismissed the suit filed by the plaintiff.