JOHN JIBAN CHANDRA DUTTA Vs. ABINASH CHANDRA SEN

JUDGEMENT

(1.) This appeal raises an important and difficult; question of law. The facts are as follows: A man named Dukhiram, an Indian Christian, married an Indian Christian woman named Sudakhina. He was subsequently converted to Mahomedanism and contracted a marriage with a Mahomedan woman named Alfatan. nessa. They had a daughter who is defendant 3. After the death of her parents, she inherited a 15 annas share in the property under the Mahomedan law of inheritance. She sold her interest to the plaintiff. The appellant and the other contesting defendants are heirs of Sudakhina. The question for decision is whether an Indian Christian who becomes converted to Mahomedanism can take a second wife. The contention raised on behalf of the appellant is that he cannot, and that the union of Dukhiram with Alfatannessa was a mere adulterous connexion. On behalf of the respondent, an objection was taken to the effect that this point cannot be argued as it was not pressed at the trial. It is certainly included by implication in Issue 5. The written statement went further and alleged that Dukhiram did not even go through a form of marriage with Alfatannessa at all. The learned Subordinate Judge certainly says nothing about it and it looks as though the defendants were so confident of succeeding on the facts alleged that the legal aspect of the matter was not adverted to. The point was, however, taken in the lower Appellate Court in support of the decree. The learned Judge refrained from deciding it and contented himself with dismissing the appeal on the ground that after Dukhiram's death the parties directly concerned all acquiesced in the position of defendant 3 as one of the heirs.

(2.) The contention put forward in support of this objection is that if the point had been directly taken, the plaintiff might have been able to meet it by proving that Sudakhina also was converted to Mahomedanism. The plaint contains an allegation that both Dukhiram and Sudakhina were so converted. This was denied in the written statement. Issue 4 was framed in connexion with the alleged conversion of Dukhiram. No issue was framed in connexion with Sudakhina. It is thus plain that the plaintiff's case with regard to the conversion of Sudakhina was abandoned, presumably "on the ground that it was realized to be perfectly hopeless. The case must accordingly proceed on the footing that Dukhiram was converted to Mahomedanism, while Sudakhina was not. The question whether on such facts Dukhiram was legally married to Alfatannessa is a pure question of law and the plaintiff was entitled to support the decree on that ground in the lower Appellate Court. It appears that this point has never been actually decided. A similar question arose in Skinner V/s. Orde. (1870-72) 14 M.I.A. 309. In dealing with the validity of the alleged marriage their Lordships of the Judicial Committee said this: The High Court expressed doubts of the legality of this marriage, which their Lordships think they were well warranted in entertaining.

(3.) Now it appears, that in that case there was some doubt whether the parties were really converted to Mahomedanism or merely pretended to be so in order that they might take advantage of the Mahometan law. Those doubts must be read in connexion with the facts of the case. In Robert Skinner V/s. Charlotte Skinner (1898) 25 Cal. 537 the question arose whether after the conversion of the husband the wife would be entitled to succeed to the share of a Mahomedan widow in spite of the fact that she was altogether excluded by a will. In the course of the judgment of their Lordships of the Privy Council, Lord Watson observed: Whether a change of religion, made honestly after marriage with the assent of both spouses, without any intent to commit a fraud upon the law, will have the effect of altering rights incidental to the marriage, such as that of divorce, is a question of importance and, it may be, of nicety.