CASE I: Custom as a Source of Law

Balusami v. Balakrishna, AIR 1957 Mad 97 (2 J bench: Govinda Menon)

Issue: Whether the partition of property is valid, as the marriage b/w TRR and
his granddaughter may be incestuous.

Facts: T. Ramaswami Reddiar died leaving behind him his second wife, his fourth wife, and
children by the deceased third wife and the fourth wife. First wife had predeceased him, TRR
married his first wifes daughters daughter (i.e. his granddaughter) and had three sons with
her. Alleged that the marriage between granddaughter and TRR incestuous, also that the sons
produced were due to adulterous relations of granddaughter. Counterclaim that custom
prevalent in their community allows for such incestuous marriage.

Verdict: Alleged custom is revolting to all principles of morality, decency and eugenics. No
civilized society can accept such custom. The marriage between a man and his daughter's
daughter comes within the prohibited degrees of relationship (Mitakshara) seventh degree
from fathers side, and fifth from mother.

Very few cases of such marriage, not conclusive that such marriage is custom.
Mayne- Custom should not be contrary to Dharma, but may override the texts of law
givers.

No custom, which is opposed to public policy can be recognised by any Court of law.
Nor can immoral usages, however much practised, be countenanced. As to the test of
immorality it must be determined by the sense of the community as a whole and not
by the sense of a section of the people. (Cited: Padayachi v. Muthu Reddi)

A few instances in a community microscopic in nature, cannot constitute a valid custom

which a court of law will recognize and enforce. A custom which is abhorrent to decency or
morality, however long practiced and recognized by a particular community can find no kind
of enforcement by a court of law.

Requirements of valid custom: ancient or certain or reasonable (not be opposed to public

policy, abhorrent to decency and morality or inconsistent with the practices of good men) not
proved

CASE II: Who is a Hindu?

Sastri Yagnapurusdaiji v. Muldas, AIR 1966 SC 1119 (5 J bench:Gajendragadkar)

Issue:
1. Swaminarayan sect a religion different from Hinduism?
2. Whether s.3 of the Bombay Hindu Places of Public Worship Act is
unconstitutional or not?

Facts:
The Swaminarayan sect did not allow non-Satsangi Hindus to enter their temples.
Claim that such practice is in contravention of s. 3, Bombay Hindu Places of Public
Worship Act.

Verdict:
High Court: the court stated that since they had allowed themselves to be described
as Hindus in the Census of 1951, they will be treated as Hindus. so automatically,
their temples will be treated as Hindu temples.

Main object of s. 3 of the Bombay Hindu Places of Public Worship Act is to ensure
complete social equality among Hindus of all kinds, when it comes to worship. Thus,
it does not contravene the right of devotees of a particular sect to worship, and is in
accordance with A. 26 of the Consti.
Also, the Swaminarayan sect is not a different religion, as the teachings of the sect are
similar to those in Hinduism. Swaminarayan was a Hindu reformer who wanted to
restore the Hindu religion to its original glory and purity.
The court discusses the features of the Hindu religion and also goes into the practices
of the Swaninarayan sect and finds out that they very similar.
The temples of said sect do come within the ambit of the BHPoPW Act.

CASE III: Who is a Hindu 2?

Rani Bhagwan Kuar v. Jogendra Chandra Bose, 30 IA 249

Issue: Are Sikhs to be considered Hindus? Is the Probate and Admin act of 1881
applicable wills of Sikhs?

Facts: Sardar Dyal Singh, a Sikh with large property, died. Left will.
SDS had joined a religious community different from Hinduism (Brahmo Samaj), and
therefore had ceased to be a Sikh and thus a Hindu (according to the appellants).

Verdict:
Lower court declared that Sardar Dyal Singh was born a Sikh, and thus was a Hindu
(ref.: s. 2, Probate and Admin. Act). He never renounced Hinduism in any way.

Sikhs are different from hindus as they have no caste or priests, do not practice hindu
ceremonies, yet classification of Sikhs as hindus is just following popular legislative
usage. The word Hindu used in the Probate and Admin Act is used in the same way as
in the Indian Succession Act, 1865. There Hindu included Sikhs.

A Sikh or a Hindu, despite becoming a Brahmo Samajist, doesremains a Hindu.

Diet and practices are irrelevant. They cannot have the effect of excluding someone
from the category someone who was born as a Hindu and who never got separated
from the religious communion in which he was born.

CASE IV: Essential Ceremonies

Devainai v. Chidambaram (1954 Mad. HC 2 J Bench)

Issue: Marriage ceremonies do Sudras come under the ambit?

Verdict:
- On custom i
- 1. Must be ancient
- 2. Must be definite
- 3. Members of the caste or sub caste must recognize it as obligatory.
- Extensive reference to the old texts two requirements for marriage, and this
includes sudras as well - first, a gift of the bride in one of the four approved
forms, second the required ceremonies like panigraha and saptapadi
- Question of Gandharva marriage- it is not obsolete. Require ceremonies for that
also.
- The ceremonies are also required in case of a wedding of a Sudra.
- If there is a custom which is different from the law, clear proof of usage will
outweigh the written text.
- Even in the case of a widow, the ceremonies are important.
- Caste distinctive name, own internal rules for management and expulsion
- The only course open to persons, who do not want to recognise the Hindu law
forms of marriage and are unable to establish a usage validating such marriages is
either to register the marriages under the existing statute law, if they are agreeable
to subject themselves to the limitations imposed by the statute in that behalf, or, if
they think that special legislation is necessary, it is incumbent 'upon them to
approach the Legislature and have a law regulating their marriages placed on the
Statute book. It is therefore, not possible to accept the freedom to legislate for
themselves which was claimed on behalf of the self-respecters suit and the anti-
Purohit Association.
- Factum valet - enables to cure the violation of a directory provision or a mere
matter of form but does not cure the violation of the fundamental principles or the
essence of the transaction - If there are certain essential ceremonies, which are
necessary for a marriage, the non-observance of those ceremonies or religious
rites cannot be overlooked by applying the doctrine of 'factum valet.

CASE V: Status of Child Marriages 1

Suramma v. Ganapatlu (1975) (AP HC, 2 J Bench)

Issue: Whether child marriages are void.

Facts: Marriage between eleven year old and six year old differences arose
petition filed for restitution of conjugal rights question arose as to whether or not the
marriage was valid.

Contentions: Respondents contentions were based on two levels: first, that as Sec.
11, which dealt with void marriages, didnt include 5(iii) (child marriages) within its
ambit, that meant that child marriages couldnt be void. Second, as Sec. 18 dealt with
punishments for child marriages, that also meant that child marriages couldnt be
void.

Verdict: The Court found for the appellants. The Court interpreted Sec. 11 differently
it only dealt with those marriages that needed a decree to be declared void as
opposed to child marriages, which were void ab initio, and didnt need a court decree
for nullity. The reason the Court gave was that Sec. 5 was very clear a marriage that
didnt meet the requirements could not be solemnized, and couldnt possibly be valid.
Sec. 18 was merely meant to serve as a deterrent, as there was no point in merely
declaring a marriage void without punishing those who had attempted to go about it.
In obiter, the Court also highlighted the prevalent problem of child marriages in India.

CASE VI: Status of Child Marriages 2

Pinninti Venkataramanna v. State (1977 AP HC 3 J Bench)

Issues: Validity of child marriages.

Facts: Marriage between nine and thirteen year olds. Question as to whether or not it
was a valid marriage.

Verdict: The court essentially followed exactly the opposite logic of Suramma, and
arrived at exactly the opposite conclusion. The reverse justification they gave was the
dangers of treating children out of such marriages as illegitimate. 13 (2) (iv) could
also save situations.

They said that the analysis of the Hindu Marriage Act clearly brings out the fact that
the legislature itself has made a distinction between contravention of the clauses of s.5
of the HMA. Also, the previous Child Marriage Restraint Act, also mentioned that the
persons concerned with solemnization of a marriage in contravention of the
provisions of the act are liable for punishment and the marriage itself was not
rendered void or null and void.
Rejected the decision in Suramma. Could render children as bastards.
If the clauses of s.5 are conditions precedent, then the legislature would not have
provided for contravention for different clauses differently.
Also bring out s.13 clause (iv) where it has been stated that in case the bride was
below the age of 15 and has now repudiated the marriage after attaining that age but
before she was 18,a decree of divorce can be obtained whether the marriage
consummated or not.
Other cases supporting:

Kalawati v. Devi Ram Legislature was not oblivious it was clearly deliberate.
(1961)
Premi v. Daya Ram Legislative intent. (1965)
Ma Hari v. Director of Consolidation Same. (1969)
Budhi Sahu v. Lohurani Sahuni (1970)
Gindan v. Barelal (1976)

Krishni Devi v. Tulsan Devi - opposite viewpoint, supported Suramma (1975).

CASE VII: Void, voidable and valid marriages

Kunta Devi v. Ram Kalu Ram (1963 Punj. HC 1 J Bench)

Issue: Whether a marriage has actually been solemnized between the parties.
Facts: Case of restitution u/s. 9, HMA. Young pregnant girl. Girl alleges coercion,
undue pressure, abduction with the excuse that the pregnancy is got rid of. No
member of family present. Was placed in circumstances under which she could not
receive independent advice (para 9).

Verdict:
No marriage in law if fraud, duress, coercion, lack of free consent. (Marriage contract
to be entered into honestly Eversley) Such marriage not sanct, and thus voidable.
Such fraud may be ground for annulment. (HMA, ss. 9, 12)

When there is a suit for restitution, proof of essential ceremonies is essential (Cited:
Rampiayar v. Deva Ram; Surajmoni Dasi v. Kali Kanta Das), esp. panigrahana and
saptapadi (s. 7, HMA; cited: Devianai Achi v. Chidambaram Chettiar).
s. 5(vi), HMA makes the consent of guardian essential if girl < 18- no effort made
here (cited: Parbati Mukherjee v. Samrendra Nath; Basanta Sen v. Aghore Nath;
Santosh Kumari v. Chimanlal Kapur - Doctrine of factum valet applies only if the
parties have cohabited naturally after the purported marriage.)

Girl young and impressionable, not right that the arya samajists lent their assistance so
eagerly, shouldve enquired before performing ceremony. Also, not mentioned what
the vedic rites were(who does kanya dan? No proof of saptapadi, homan, panigrahana,
as is required - Mayne). (cited: Aunjona Dasi v. PC Ghose- court has jurisdiction to
decide)
No valid marriage
There was complete lack of proof to show that the essential ceremonies were
performed or not.

CASE VIII: Cruelty 1

Dastane v. Dastane (1975 SC 3 J Bench)

Issue: Cruelty

Facts: Instances of cruelty removed the mangalsutra beat the daughter abused
the ancestors nagged continuously locked him outside the house said you are
not a man in public threatened to set fire to herself and the house.- threatened that
she would make him lose his job.

Verdict:
- Burden of proof lies upon one who affirms standard of proof: preponderance of
probabilities what a prudent man will think. The standard will be the same as
that of civil proceedings. The court needs to get satisfied on matters from a) to
e).
- Reasonable apprehension test that it will be harmful or injurious for the spouse
as far as cruelty is concerned. Danger to life, limb or health or reasonable
apprehension of such danger is a higher requirement and not required to
prove.
- No universal standard of reasonable husband or reasonable wife it varies, and
decisions are made on a case to case basis
- Mere petulance, rudeness, austerity etc. are not enough grounds.
- Ordinary wear and tear of married life is not enough ground
- Condononation means forgiveness of the matrimonial offence and the restoration
of the offending spouse to the same position as he or she occupied before the
offence was committed. Condonation only if the Respondent has, in every
manner, condoned the cruelty there must be forgiveness and restoration if
they lead a life of married intimacy which characterizes normal matrimonial
relationships, then condonation (the intent to forgive and restore)can be
presumed
- The Court read into condonation an implied condition that the offences would
not be repeated it cannot be equated to forgiveness in the instant case,
however, normal sexual life resumed hence, condonation presumed. The
Court found for the Respondent.
- Misc- the original cause of actions cannot be revived. The husband made
every effort to describe his wife as a mad woman.

CASE IX: Cruelty 2

P.L. Sayal v. Sarla Rani (1961 Punj HC 1 J Bench)

Issue: Judicial separation on the grounds of cruelty.

Facts: Love potions case. Alleged by wife that the plea of cruelty is to disguise the
intention of the husband to marry wifes niece. The husband suffered a lot of medical
problems after consuming the love potion.

Verdict: The Court reiterated the subjective nature of cruelty, the lack of need for
intention, and, applying the reasonable apprehension test, found for the petitioner.
No condonation of the matrimonial offence.

Cited: Rayden on divorce for the definition of legal cruelty (para 7)

Earl Russell v. Countess Russell cruelty => conjugal duties become impossible to
perform.
Westmeath v. Westmeath self preservation more important than preservation of
marriage.
Squire v. Squire (wife suffering from insomnia)- malignant intent not necessary to
constitute cruelty (supported by Kaslefsky v. Kaslefsky and Jamieson v. Jamieson; but
Westall v. Westall says: if no intention, not cruelty unless not only aimed at other
party, but also proved to cause injury to health)

Even a single act of gross cruelty may constitute legal cruelty.

See para 12: no condonation despite resumption of married life and child.

CASE X: Cruelty 3
Shobha Rani v. Madhukar Reddi (1988 SC 2 J Bench)

Issues: Dowry as cruelty and grounds for a divorce.

Verdict: The Court held that repeated demands for dowry amounted to cruelty, and
was thus a valid ground for divorce. A few important observations were made:
- Cruelty need not be intentional
- It must be determined from case to case there is no universal reasonable
man standard. Cruelty depends on the life the parties were accustomed to,
economic and social conditions, culture and human values they attach
importance.
- Asking for monetary support is materially different from asking for dowry (HC
judgment overruled on this point)
- In Family Law, the standard of proof is not beyond reasonable doubt rather, it
is only preponderance of probabilities
- Cruelty could be mental or physical if physical, the Court would look into the
fact and degree. If it was mental, the Court would look into its nature, and
apply the reasonable apprehension test.

Misc- The court said that this is not a case in which the husband requested his wife to
give some money for his personal expenses as in his letter to the wife he had justified
that his parents were not wrong in asking for money.

CASE XI: Bigamy

Bhaurao Shankar Lokhande v. Maharashtra, AIR 1965 SC 1564 (3 J bench:
Raghubar Dayal)

Issue: When bigamy? What leads to the solemnization of (Gandharva) marriage? S. 5,

17, HMA; s. 494 IPC.

Facts: BSL married Indubai in 1956, Kamlabai in 1962. DSL (bro 494 r/w 114) =
Kamlabai, her father and a barber tried under s. 494. Second marriage performed by
exchange of garlands and striking each others foreheads. Witnesses said according to
custom, no Brahmin priest required, no need to chant mangala ashtakas. Also,
touching foreheads of bride and groom concludes marriage.

Appellants - contend that the ceremonies essential for valid marriage not performed.
v. state second marriage according to custom (gandharva form), hence valid.

Verdict:
For S.494 of the IPC to apply the second marriage has to be a valid one. Not
valid then, there is no question of its being void by reason of its taking place
during the lifetime of the husband or the wife.
s. 17, HMA > need for proper ceremonies, due form for solemnization. In present
case, it is admitted by the accused that essential ceremonies not performed.
Cited: Mulla even for Gandharva form, essential ceremonies important, unless
modified by custom, caste practices. Essentials = invocation before the sacred fire,
saptapadi (unless custom alters practice).
s. 494, IPC Need for second marriage to be valid. If marriage not a valid marriage, it
is no marriage in the eyes of the law.
Court not convinced that second marriage performed according to custom, statements
of witnesses do not prove that essential ceremonies not required for gandharva
marriage. Thus, the second marriage is not valid, and an offence u/s. 494 not made
out.
CASE XII: Desertion
Tirath Kaur v. Kirpal Singh, AIR 1964 Pun 28 ( 1 J bench)

Issue: Whether the wife had withdrawn from society of husband without reasonable
excuse, and had thus deserted him.

Facts: Marriage in 1953, muklawa ceremony performed in following year.

Cohabitation till jan 1958, then husband claims wife deserted him. Wifes father
refused to send her back. Wife claims that that husband financially weak, encouraged
her to ask her parents for money. Wife went to parental home, got a diploma in
tailoring. Used to visit him during training, went back after she completed her course.
Later joined as teacher in tailoring school, then under BDO, thus had to shift.
Husband used to visut, take part of salary, she even sent money orders. Also visited
father-in-laws home. Husband even cohabited with her once in the interim.
(Appellants cite Kay v. Kay; G v. G- not essential that wife live under husbands roof)

Verdict:
Lower court said husband justified in claiming restitution, yet wife had not withdrawn
without reasonable excuse till 1960, and there was condonation for everything till
1960, because of cohabitation.

Previous defaulting conduct of wife might have been condoned due to

cohabitation, but subsequent refusal to come back amounted to withdrawal.
Financial condition of husbands family not that bleak, therefore abandonment
unjustified.
(Mulla: wifes duty, no separate residence unless compelled to live apart, b)
She is not entitled for separate residence or maintenance unless she proves that by
reason of his misconduct or by his refusal to maintain her in his own place of
residence or for other justifying cause she is compelled to live apart. Thus, valid
ground for restitution.

CASE XIII: Restitution of Conjugal Rights 1

T. Sareetha v. T Venkata Subbaiah, AIR 1983 AP 356 (1 J bench)

Read the goddamn casenote in the material. Its more than enough.
Issue:

Facts:

Verdict:

CASE XIV: Restitution of Conjugal Rights 2

Saroj Rani v. Sudarshan Kumar (1984 SC 2 J Bench)

Issues: The constitutionality of restoration of conjugal rights (Sec. 9, Hindu Marriage

Act).
Facts: Respondent-husband turned the appellant out of his house and withdrew
himself from her society. Petition filed under Sec. 9, Hindu Marriage Act. One year
later, husband filed a petition for divorce on the ground that no cohabitation had taken
place.

Verdict: Restitution of conjugal rights held to be constitutionally valid, as it

envisioned something more than mere forced sexual intercourse.

CASE XV: Who is a Muslim? Schools, history of Muslim Law.

Narantakath v. Parakkal (1922 Mad HC)

Issue: Bigamy and apostasy.

Facts: The question was whether the Ahmadiya sect was apostate or not. There were
six ways in which Ahmadiyans diverged from orthodox Islam:
a) They did not acknowledge the spiritual supremacy of the Shah of Turkey
b) They abandoned violence as a method for propagating Islam
c) They said that Jesus Christ was dead and buried, and not in Heaven
d) They believed that they were other Messiahs
e) They believed that these Messiahs included those such as Rama, Krishna etc.
f) The last of the Messiahs was Ahmed.

Verdict: The Court held that all these deviations were not enough to deem them
apostates. The basic tenets remained professing the belief in one God, and
acknowledging that Mohammad was his prophet.
Cited: Hakim Khallil Ahmed v. Malik Istafi- it was held that Ahmadees are
Mahomedans notwithstanding their pronounced dissent or several important
matters of doctrine from the Mahomedan faith. CASE XVI: Muslim marriage.
Abdool Razack v. Aga Mahomed, (1894) 21 IA 56 (4 J bench: Lord Macnaghten)

Issue: Valid marriage between Abdul Hadee and appellants mother (Burmese
Buddhist)? Is acknowledgment sufficient to prove legitimacy of heir?

Facts: Shia family, disposal of property through will. Appellant claims to be the son
of Abdul Hadee (bro of chap who made will), and thus one of the heirs.

Appellant: Post- recorders verdict, appellant argued that no test can gauge the
sincerity of belief. All that is required is profession of belief in Mahomedan faith, no
need for conversion. Also argued that Buddhists come under the category which
includes Christians and Jews, who Muslims can marry. Presumption in favour of
marriage, esp. when lengthened cohabitation.

Verdict:
Recorder declared no marriage, as the mother was not a convert to Mahomedanism.
Thus, no acknowledgment can confer legitimacy of appellant.

Court declares no proof of profession, mother knew nothing about the religion. Uses
Burmese court case to say that , in order to constitute a valid marriage between a
Mussulman and a Burmese woman, the woman must first apostatize and embrace
Islam, thus Burmese mother deemed not married to Abdul Hadee.
None of the parties regarded the ceremony which preceded their cohabitation in the
light of a lawful and binding marriage.

Also, there has been acknowledgment of paternity only, not legal acknowledgment of
legitimacy of child (despite witness account that AH said he was going to meet his
son, and AHs will, given to HH(the author of original will), that said AH had an
offspring in burma.

Appellants claim fails.

CASE XVII: Mahr - Dower

Abdul Kadir v. Salima, (1886)ILR 8All149 (5 J bench)

Issue: Effect of a Mohammedan marriage on parties. Nature of liability of husband to

pay dower. Matrimonial rights of the parties as to conjugal cohabitation.

Facts:
Marriage, dower fixed w/o specifying if partly or wholly prompt or deferred. Salima
stayed with husband for 3 months after marriage, then went to father, but didnt
return. Father refused to let her go.
Respondent claims: 1. irrevocable divorce, 2. non payment of dower, thus no
restitution possible, 3. cruelty by husband.
Also argued that the right to cohabitation does not accrue to the husband till he has
paid the dower. (Cited: Wilayat Husain v. Allah Rakhi, Nasrat Husain v. Hamidan- no
suit by husband for restitution until dower paid; Sheikh Abdool Shukkoar v. Raheem-
oon-nissa)

Verdict:
Cases in which personal law is applicable must be decided on the basis of the personal
law in existence.

Marriage in muslim law is a civil contract, based on declaration and consent Hedaya).

Effects of marriage: "The legal effects of marriage are that it legalizes the enjoyment
of either of them (husband and wife) with the other in the manner which in this matter
is permitted by the law; and it subjects the wife to the power of restraint, that is, she
becomes prohibited from going out and appearing in public; it renders her dower,
maintenance, and raiment obligatory on him; and establishes on both sides the
prohibitions of affinity and the rights of inheritance, and the obligatoriness of justness
between the wives and their rights, and on her it imposes submission to him when
summoned to the couch; and confers on him the power of correction when she is
disobedient or rebellious, and enjoins upon him associating familiarly with her with
kindness and courtesy. It renders unlawful the conjunction of two sisters (as wives)
and of those who fall under the same category (1)"

Dower: Right of cohabitation comes into existence at the same time and by reason of
the same incident of law as the right of dower. Dower, under the Muhammadan law,
is a sum of money or other property promised by the husband to be paid or delivered
to the wife in consideration of the marriage even if not fixed, it is a legal right of
the wife akin to contract for sale -no limit on amount payable on demand at any
time during the lifetime of the husband no restrictions on husband or wife till dower
paid in full, wife may deny the husband connubial intercourse-

Sheikh Abdool Shukkoar v. Raheem-oon-nissa not agreed with (I have to observe,

with profound deference, that the ratio decidendi adopted in that case seems to me to
proceed upon a misconception of the rule of Muhammadan law as to the exact time
when the right of mutual cohabitation vests in the married parties, and also as to the
exact nature of the husband's liability to payment of dower, and the exact scope of the
right which a Muhammadan wife possesses to plead non-payment of dower in defence
of a suit by her husband for restitution of conjugal rights.)

Muslim law declares that once a marriage has been contracted, the wife can claim
dower, and can resist the husbands demand for cohabitation, travel on the basis of the
right to claim dower. Cited: Fatawa-i-Alamgiri aim of the rule is to ensure the
payment of dower to wife.

the right of dower does not precede the right of cohabitation

In present case: not found that the wife demanded dower before filing case or first
declined to cohabit with husband because dower not paid. Wife relied upon the
grounds of cruelty. Husband not bound to pay dower before it is demanded.
CASE XVIII: Dissolution of Muslim Marriage 1
Ayesha Bibi v. Subodh Chandra Chakravarty, AIR 1949 Cal 436 (? J bench:
Ormond)

Issue: Is conversion valid? On dissolution of marriage due to conversion, which law

must apply? Can the court administer personal law (irrelevant), what personal law can
the court administer (irrelevant), but see para 103?

Facts: Marriage according to hindu rites (both Hindu Brahmins), both of Indian
domicile. On marriage, wife = 15. Husband a domesticated son-in-law, provided no
maintenance to wife. Instead, demanded money. Husbands father also treated wife
badlywifes father eventually found out, took her away. Wife continued to live with
her father. Eventually, she converts to Islam. Father agreed after reluctance. Wife
converts by reciting the Kalma Shahadat, signing declaration, receives certificate.
Reason for conversion no sympathy from Hindu society, belief that status of women
better in Islam.

Verdict:
Conversion- Decision to convert was well thought out. Anyway, when it comes to
conversion, the sincerity of religious belief and motive cannot be questioned.
Freedom of thought and religion protected. Also, as required, valid notice given to
husband to embrace islam. He did not respond.

Domicile- for divorce, the law of domicile at the date of institution of case in court
applies but Personal law applicable to an individual depends on his own choice, wife
free to adopt a religion different from husband (para 37). Cited: Muncherji
Khambatta v. Jessie Grant Khambatta (Christian marries Muslim, then converts.
Husband decides to use talaq to divorce divorce upheld) also; Nachimson v.
Nachimson. Thus, the law that applies is the one the marriage is subject to at the
time of institution of suit.

Whether Hindu law or Mohammedan law should apply-

Mohammedan law- all that is needed, according to the Dur- ul Hurb system, is the
offer of conversion to husband, which has been done. After conversion, dissolution is
automatic (after three menstrual cycles, or 3 months, whichever is longer), without
the need for the presentment of islam before a judge or kazi.

Hindu Law: (para 65 on) Governs only Hindus. No control of Hindu law over wife,
as she has converted. Due to conversion, wife can no longer cohabit, perform
sacraments, cook food for husband. Husband has no duty to maintain her. Also, he
cannot claim custody of the wife (if muslim law is applied, as was in Muchoo and ors
v. Arzoon Sahoo, para 74)

Dissolution: Nothing bars the court from dissolving such marriage (various authorities
cited para 90-95)

When can the court administer personal law?

If there is general law expressly laid down, it shall apply unless there is an express
direction that personal law is to apply. But, it is eventually up to the court to decide.
(see para 108)

Thus, marriage stands dissolved. No objection from defendant.

Also: see para 21 (mulla) for the sources of mohammedan law.

In the matter of Ram Kumari distinguished on the basis of facts, as there was no
notice to husband and no suit for dissolution.
Tischenko Case: concurs with this judgment, mostly.

CASE XIX: Dissolution of Muslim Marriage 2 (2 J bench)

Resham Bibi v. Khuda Baksh, AIR 1938 Lahore 482

Issue: Whether RB can be said to be an apostate. Whether apostasy, ipso facto, effects
cancellation of a Muslim marriage.

Facts: RB became an apostate by declaring that she did not believe in God, the Qoran
and the Prophet. Then, she demanded a decree for dissolution of marriage. Husband
claimed that the plea of renunciation was to save herself from a s. 498 offence.

Verdict:
Subordinate judge said there was no proof of apostasy. In fact, from the pork
incident, dress and speech, it could not be concluded that RB was not a Muslim.

In case of apostasy, the statement made is sufficient, and there is no need to justify
apostasy. Conversion must be taken bona fide, as should apostasy.
Belief is a mental condition, the sincerity of which no court can, or should, test.
If apostasy takes the form of conversion, proof of conversion in accordance with
the tenets of the faith converted to is sufficient.
The plaintiffs marriage was dissolved as soon as she became an apostate.