Calcutta High CourtCalcutta High CourtHaripada Roy vs Krishna Benode Roy And Ors. on 14 March, 1939Equivalent citations: AIR 1939 Cal 430Author: B MukherjeaJUDGMENT

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. tiffmarried defendant 5 according to Hindu rites in 1918 and it is not disputed that both of them were Hindus atthat time. They lived together as husband and wife from 1918 to 1929, and had three issues, one of whom isstill alive. The wife, it appears, went to Calcutta some time in 1930 and stayed there for a few years receivingeducation at the Saroj Nalini Dutt School. Later on, she went to Puri as a school mistress and remained theretill May 1933. On 17th May 1933, she embraced the Mahomedan religion. The reason given by her is that hermarried 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 becomingMohammedan, she is said to have requested her husband to adopt her religion and receiving no reply from thelatter, made an application to the District Judge of Alipore as the Kazi to dissolve the marriage. The DistrictJudge rejected that application and directed her to file a regular suit in the Civil Court. Thereupon, sheinstituted a suit on 14th June 1933, in the Court of the First Munsif at Alipore, praying for dissolution of hermarriage with the plaintiff Haripada. The husband did not contest the suit and on 15th September 1933, an exparte decree dissolving the marriage was passed. Some time afterwards, she entered into the Arjya Samaj andlater on was reconverted to Hinduism by the Hindu Mission on 13th December 1933. On that very day, shemarried defendant 1, Krishna Benode Roy under Act 3 of 1872 amended by Act 30 of 1923. In February1934, the plaintiff commenced the present suit claiming restitution of conjugal rights. Both the Courts havedismissed the suit holding that as the marriage was already dissolved the claim was not maintainable. Theplaintiff has now come up in second appeal to this Court. Mr. Ghose, who appears for the appellant, hasargued before us that the marriage of the plaintiff with defendant 5 being a Hindu marriage solemnizedaccording to Hindu rites was in law indissoluble and the wife by subsequent conversion to another faith couldnot 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 arenon-Muslims and one of the parties embraces the Mahomedan faith, he or she can call upon the other to comeand adopt the same religion and in case of refusal the Kazi is authorized to separate the parties: videHamilton'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 canbe made applicable. He has also pointed out that this rule is a part of the Muslim Public Law and can beobeyed only in a country where Islam is the State religion. These are undoubtedly matters of seriousconsideration, but I think that there is an initial difficulty in the way of the appellant and unless that difficultyis 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 thepresent plaintiff and that suit culminated in a decree in her favour. That decision was not challenged by way ofappeal and must now be taken to have become final and conclusive. So long as that decree stands, it will be inmy opinion a complete bar to the present suit. Mr. Ghose sees the difficulty in his way and he attempts to getround the difficulty in two ways. In the first place, he argues that the decree was a nullity as the Court whichpassed it had no jurisdiction to entertain a suit for dissolution of a Hindu marriage, and secondly, it is arguedthat the decree could remain effective only so long as the wife remains a Mahomedan and as soon as shebecame reconverted to Hinduism, the rights of her husband under the Hindu Law revived.

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

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3. I am unable to accept either of these two contentions as correct. It cannot be said that the judgment of theMunsif at Alipur in the suit for dissolution of marriage commenced by defendant 5 was a void judgment, andthere was a lack of jurisdiction in the Court to render it. It is not disputed that a suit for dissolution of marriageis a suit of a civil nature and the Court, which tried the suit, had the jurisdiction both pecuniary and territorialto entertain it. Mr. Ghose says that as Hindu law forbids dissolution of marriage, no Court in British India hasany jurisdiction to entertain a suit for dissolution of a Hindu marriage. In my opinion, this is a loose way ofstating the law. The rule of Hindu Law may be pleaded as a bar to a suit for dissolution of marriage. But thatitself is a matter which has got to be decided by a Court and it is this authority to decide the point that reallymakes up the jurisdiction of the Court, though the actual decision might be erroneous. Even when both theparties are Hindus, the dissolution of Hindu marriage on the footing of custom has been recognized in manycases: 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 Courtitself. In the present case, the suit was instituted by defendant 5 at a time when she had embraced theMahomedan religion. The question is whether the rights of the parties would be governed by Hindu law or byMahomedan law. This question had to be decided by the Court, before its jurisdiction to grant relief, as prayedfor 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 itselfand if the decision was erroneous or wrong in law, it cannot be ignored as nullity: vide the case in GirwarNarayan Mahton v. Kamla Prasad (1933) 20 A.I.R. Pat. 104. The first contention of Mr. Ghose therefore mustbe overruled.

4. The second contention of Mr. Ghose is still more untenable. From the plaint in the suit of defendant 5 andfrom the decree passed in that suit, it cannot be argued that the decree would remain operative only for theperiod during which defendant 5 would remain a Mahomedan and the rights of the husband under the Hindulaw 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 thehusband declines to adopt it and a separation is made by the Kazi, the separation would amount to talak: videAmir Ali's Mahomedan Law, Bdn. 5, Vol. II, p. 385. The marriage is therefore in my opinion stood dissolvedfor all the time to come and a suit for restitution of conjugal rights must fail. The result is that the appeal isdismissed with costs.

S.K. Ghose, J.

5. I agree.

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

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