GUL MOHAMMAD S/O. SHEIKHLAL Vs. EMPEROR

JUDGEMENT

(1.) GUL Mohammad was convicted under Sections 342 and 497, Penal Code, and sentenced to six months' rigorous imprisonment on each count on 4-10-1945 in criminal case No. 211 of 1945, by the Magistrate, First Class, Hoshangabad. The sentences were to run concurrently. The convictions and sentences were upheld by the Additional Sessions Judge, Hoshangabad, on 9-11-1945 in criminal Appeal No. 120 of 1945. The revision application was filed on 15-11-1945 against the appellate order and the applicant was ordered to be released on bail on that date. The application was admitted for hearing parties on 30-1-1946. The Crown is not represented though notice of the hearing of the application was given.

(2.) THE prosecution case may be briefly stated thus: Mt. Gindia is a daughter of Motilal (P.W. 2) and Mt. Mulia (P.W. 3), who are residents of Hoshangabad. Gindia was married about the year 1940 to Babulal (P.W. 1) resident of Joshipur, Bhopal State, which was on the other side of the Narbada. Gindia attained puberty after her marriage and the marriage was consummated. They lived together as husband and wife for nearly three years and a half at Joshipur. In Baisakh (April-May of 1944) Gindia came to Hoshangabad on the occasion of the marriage of her cousin, daughter of her uncle, and stayed at her parents' place in Mohalla Balaganj. Gul Mohammad the accused also resides in that Mohalla and was a close neighbour of her father, Motilal, who is a police constable. On 12-5-1944, at about 10 A.M. when Gindia and her mother, Mulia, were returning from a bath in the Narbada, they were decoyed by the accused on the false pretext that they were required for taking baskets from his house and they would be paid their wages and were taken to Jumerati Mohalla, where they were kept locked inside a room. Under threat they were compelled to go to the Police Station House to make a report about their conversion to Islam and were taken subsequently to a mosque for conversion. After their conversion they were married; Gindia was married to Gul Mohammad and her mother was married to Badruddin (also called Badri.) After marriage they were forced to live in the house of the accused. During the period Gindia lived in the house of Gul Mohammad, he had sexual intercourse with her.

(3.) THE contention of the learned Counsel for the accused was that the complainant had no right to lodge a complaint under Section 497, Penal Code, against the accused as he had ceased to be her husband at the time of the filing of the complaint. Two reasons were urged in support of this contention. The first was that divorce is permitted by the custom of the caste to which the complainant belonged and that he had divorced his wife Gindia according to custom. There is no evidence of divorce. In his cross-examination after the charge Babulal stated that there was a document to which he and his father-in-law were parties. Under that document he was to get Rs. 150 from his father-in-law whether Gindia returned or not. The document was not filed in the case and the witness stated that he was prepared to file it, but was not in a position to produce it on 23-7-1945, the day he was cross-examined as the river Narbada was in flood. The witness was not asked to produce the document subsequently in Court. The date of the document is not known. The oral evidence does not prove that there was a divorce. In the absence of any evidence of divorce, it must be held that the marriage tie was not dissolved and that Babulal remained the husband of Gindia notwithstanding the agreement that he was to receive Rs. 150 from his father-in-law. The second point urged was that by the conversion of Gindia to Muhammadanism the marriage tie was dissolved and that Babulal ceased to be her husband. The conversion of a Hindu wife to Muhammadanism does not ipso facto dissolve her marriage with her husband; she cannot during his lifetime enter into a valid contract of marriage with another person: Vide Government of Bombay v. Ganga (80) 4 Bom. 330, Ram Kumari, In the matter of (91) 18 Cal. 264, Mt. Nandi v. Emperor A.I.R. 1920 Lah. 379 and cri. Mt. Chandabai v. Emperor Criminal Revn. No. 349 of 1945, dated 26-4-1946 decided by Pollock J. In some cases it has been held that a marriage of a Hindu wife is dissolved after her conversion to Islam if she presents Islam to her husband and he fails to accept it and she obtains a decree of a Court for dissolution of marriage: Mt. Ayesha Bibi v. Subodh Ch. Chakravarty 49 C.W.N. 439; Ram Kumari, In the matter of (91) 18 Cal. 264. This view has been dissented from in Sayeda Khatoon v. M.Obadiah 49 C.W.N. 745 where it was held that a marriage solemnized in India according to one personal law cannot be dissolved according to another personal law, simply because one of the parties has changed his or her religion. It is unnecessary for the purpose of this case to decide whether the view taken in Mt. Ayesha Bibi v. Subodh Ch. Chakravarty 49 C.W.N. 439 is correct. In the present case it has not been proved that after conversion Gindia presented Islam to her husband, that he refused to embrace Islam and that she obtained a decree of a Court for dissolution of marriage. As her marriage was not dissolved, she continued to be the wife of Babulal.