Haripada Roy vs Krishna Benode Roy And Ors.

on 14 March, 1939

Calcutta High Court Calcutta High Court Haripada Roy vs Krishna Benode Roy And Ors. on 14 March, 1939 Equivalent citations: AIR 1939 Cal 430 Author: B Mukherjea JUDGMENT B.K. Mukherjea, J. 1. This appeal is on behalf of the plaintiff and the suit was one for restitution of conjugal rights. The plain. tiff married defendant 5 according to Hindu rites in 1918 and it is not disputed that both of them were Hindus at that time. They lived together as husband and wife from 1918 to 1929, and had three issues, one of whom is still alive. The wife, it appears, went to Calcutta some time in 1930 and stayed there for a few years receiving education at the Saroj Nalini Dutt School. Later on, she went to Puri as a school mistress and remained there till May 1933. On 17th May 1933, she embraced the Mahomedan religion. The reason given by her is that her married life was bitter and unhappy and finding no hope of solace or comfort in her own social system, she -was driven to seek relief in another religion which was based on different social ideas. After becoming Mohammedan, she is said to have requested her husband to adopt her religion and receiving no reply from the latter, made an application to the District Judge of Alipore as the Kazi to dissolve the marriage. The District Judge rejected that application and directed her to file a regular suit in the Civil Court. Thereupon, she instituted a suit on 14th June 1933, in the Court of the First Munsif at Alipore, praying for dissolution of her marriage with the plaintiff Haripada. The husband did not contest the suit and on 15th September 1933, an ex parte decree dissolving the marriage was passed. Some time afterwards, she entered into the Arjya Samaj and later on was reconverted to Hinduism by the Hindu Mission on 13th December 1933. On that very day, she married defendant 1, Krishna Benode Roy under Act 3 of 1872 amended by Act 30 of 1923. In February 1934, the plaintiff commenced the present suit claiming restitution of conjugal rights. Both the Courts have dismissed the suit holding that as the marriage was already dissolved the claim was not maintainable. The plaintiff has now come up in second appeal to this Court. Mr. Ghose, who appears for the appellant, has argued before us that the marriage of the plaintiff with defendant 5 being a Hindu marriage solemnized according to Hindu rites was in law indissoluble and the wife by subsequent conversion to another faith could not alter the law by which the matrimonial rights of the parties were to be governed. It is not disputed by Mr. Ghose that, there is a rule of Mahomedan law to the effect that when the par. ties to a marriage are non-Muslims and one of the parties embraces the Mahomedan faith, he or she can call upon the other to come and adopt the same religion and in case of refusal the Kazi is authorized to separate the parties: vide Hamilton's Hedaya, Vol. 1, Book II, Chap. V, p. 177, and Amir Ali's Mahomedan Law, Edn. 5, Vol. II, p. 384. Mr. Ghose contends, however, that this rule of law is not applicable to the present case asunder Section 37, Civil Courts Act, it is necessary that both the parties should be Mahomedans before the Mahomedan law can be made applicable. He has also pointed out that this rule is a part of the Muslim Public Law and can be obeyed only in a country where Islam is the State religion. These are undoubtedly matters of serious consideration, but I think that there is an initial difficulty in the way of the appellant and unless that difficulty is removed the question raised by Mr. Ghose would not come up for decision at all. 2. There was as has been said above a suit for dissolution of marriage started by defendant 5 against the present plaintiff and that suit culminated in a decree in her favour. That decision was not challenged by way of appeal and must now be taken to have become final and conclusive. So long as that decree stands, it will be in my opinion a complete bar to the present suit. Mr. Ghose sees the difficulty in his way and he attempts to get round the difficulty in two ways. In the first place, he argues that the decree was a nullity as the Court which passed it had no jurisdiction to entertain a suit for dissolution of a Hindu marriage, and secondly, it is argued that the decree could remain effective only so long as the wife remains a Mahomedan and as soon as she became reconverted to Hinduism, the rights of her husband under the Hindu Law revived.

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Haripada Roy vs Krishna Benode Roy And Ors. on 14 March, 1939

3. I am unable to accept either of these two contentions as correct. It cannot be said that the judgment of the Munsif at Alipur in the suit for dissolution of marriage commenced by defendant 5 was a void judgment, and there was a lack of jurisdiction in the Court to render it. It is not disputed that a suit for dissolution of marriage is a suit of a civil nature and the Court, which tried the suit, had the jurisdiction both pecuniary and territorial to entertain it. Mr. Ghose says that as Hindu law forbids dissolution of marriage, no Court in British India has any jurisdiction to entertain a suit for dissolution of a Hindu marriage. In my opinion, this is a loose way of stating the law. The rule of Hindu Law may be pleaded as a bar to a suit for dissolution of marriage. But that itself is a matter which has got to be decided by a Court and it is this authority to decide the point that really makes up the jurisdiction of the Court, though the actual decision might be erroneous. Even when both the parties are Hindus, the dissolution of Hindu marriage on the footing of custom has been recognized in many cases: vide the case in Gopi Krishna Kasandhan v. Mt. Jaggo and whether or not the prohibition laid down by the Hindu law is attracted to the facts of a particular case is a matter for investigation by the Court itself. In the present case, the suit was instituted by defendant 5 at a time when she had embraced the Mahomedan religion. The question is whether the rights of the parties would be governed by Hindu law or by Mahomedan law. This question had to be decided by the Court, before its jurisdiction to grant relief, as prayed for by the plain, tiff, could be determined. There is there-fore no inherent lack of jurisdiction in this case. Absence of jurisdiction is pleaded here only on grounds which were and had to be decided by the Court itself and if the decision was erroneous or wrong in law, it cannot be ignored as nullity: vide the case in Girwar Narayan Mahton v. Kamla Prasad (1933) 20 A.I.R. Pat. 104. The first contention of Mr. Ghose therefore must be overruled. 4. The second contention of Mr. Ghose is still more untenable. From the plaint in the suit of defendant 5 and from the decree passed in that suit, it cannot be argued that the decree would remain operative only for the period during which defendant 5 would remain a Mahomedan and the rights of the husband under the Hindu law would revive the moment she was converted back to Hinduism. The proposition is against common sense. It has been laid down by Mahomedan law-given that if the wife embraces the Mahomedan religion and the husband declines to adopt it and a separation is made by the Kazi, the separation would amount to talak: vide Amir Ali's Mahomedan Law, Bdn. 5, Vol. II, p. 385. The marriage is therefore in my opinion stood dissolved for all the time to come and a suit for restitution of conjugal rights must fail. The result is that the appeal is dismissed with costs. S.K. Ghose, J. 5. I agree.

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