Seema and Others vs State of U.P. and Others

Surya Prakash Kesarwani, J.—Heard Sri Dinesh Kumar, learned Counsel for the petitioners and Sri Dinesh Kumar Dubey, learned Standing Counsel for the State- respondents. This writ petition has been filed praying for a writ, order or direction in the nature of mandamus commanding the respondent authorities to protect the matrimonial life and liberty of the petitioners.

Learned Counsel for the petitioners submits that the petitioners have married with each other but the respondent No. 4 is interfering and as such mandamus may be issued to the respondents to protect the matrimonial life and liberty of the petitioners. Both the petitioners are present in the Court and have been identified by their learned Counsel.

Learned Standing Counsel submits that there is no religion conversion by petitioner No. 1 who is a Hindu girl and therefore there cannot be a marriage of petitioner No. 2 (a Muslim) as per the Holy Quran.

I have carefully considered the submission of learned Counsel for the parties.

During the course of hearing, the petitioner No. 1 offered for recording her statement on oath. Both the petitioners have given their statement on oath before this Court which have recorded in open Court and in presence of learned Counsel for the parties. Learned Counsel for the petitioners has also identified the petitioners and also put his signature below the signatures of the petitioners on their statement on oath recorded today.

The aforesaid statement on oath of the petitioners recorded today (28.11.2014) are reproduced below:

"(i) Statement on oath of Seema (petitioner No. 1):

(ii) Statement on oath of Sultan (petitioner No. 2):

In the statement as reproduced above, both the petitioners have admitted that their parents are residing in Mumbai. In paragraph No. 8 of the writ petition, it is stated that the petitioners are neighbor at Thane, Maharashtra. A photostat copy of an alleged Adhar Card of the petitioner No. 1 has been filed in which her address is mentioned as 216/3, Pushpa Nagar P.P. Marg, Near Smashan Bhumi, Dongari, Virar (West), Thane Virar, Maharashtra-: 401305. In photostate copy of an alleged voter ID Card address of petitioner No. 1 is mentioned as 216 Rajachatra Pari Shiva Ji Marg, Virar is mentioned. A photostat copy of an alleged passport of petitioner No. 2 has been filed in which his address is shown as P.O. Madhwalia, Mahrajganj (Uttar Pradesh). It has not been explained in the writ petition that if the petitioners and their parents are resident of Mumbai then in what circumstances, the writ petition has been filed before this Court impleading the Senior Superintendent of Police, Mahrajganj, SHO PS Kothibhar, District Mahrajganj as respondents and the relief in the nature of mandamus has been prayed against them.

In the alleged Nikahnama the date and place of Nikah is recorded as under:

Petitioner No. 1 is a Hindu girl and as per her own statement as reproduced above, she has neither renounced Hindu religion nor has embraced Islam prior to the alleged Nikah. She has also not changed her original Hindu name petitioner No. 2 has stated that he brought the petitioner No. 1 from Mumbai to Allahabad and performed Nikah in front of High Court. He also stated that the petitioner No. 1 has not changed her religion.

From the facts as noted above, it is clear that the petitioner No. 1 was brought from Mumbai to Allahabad by the petitioner No. 2. She is a Hindu by religion and has neither renounced her religion nor embraced Islam. She has written her original Hindu name not only in the writ petition but also stated the same in her statement. She has put her signature as "SEEMA" in the writ petition and also on the statement on oath before this Court. No evidence of religion conversion of petitioner No. 1 has been filed alongwith the writ petition.

In the case of Dilbar Habib Siddiqui v. State of U.P. and another, 2010 (69) ACC 997 a Division Bench of this Court held as under:

"The primary question which is to be adjudicated by us is as to whether the impugned PER can be quashed or not on the peculiar facts of the writ petition? A perusal of the contents of the impugned FIR indicates that Khushboo Jaiswal is alleged to have been abducted by the petitioner three months prior to the lodging of it. By his dexterous manuvours and deceit petitioner had succeeded in not getting the FIR registered against him for all this period. It is informant''s allegation that petitioner had abducted her daughter. Writ petition further reveals that Khushboo never converted herself into Islam. There is no document regarding her such conversion. In our above conclusion we are fortified by the fact that in the affidavit and application filed by Khusboo herself subsequent to her alleged contract marriage she has described herself as Khushboo and not by any Islamic name. As Khushboo she could not have contracted marriage according to Muslim customs. In those referred documents she has addressed herself as Khushboo Jaiswal daughter of Rajesh Jaiswal. Thus what is conspicuously clear unerringly without any ambiguity is that Khushboo Jaiswal never converted and embraced Islam and therefore her marital tie with the petitioner Dilbar Habib Siddiqui is a void marriage since the same is contrary to Islamic dicta and tenets of Holy Quran. It is recollected here that Nikah i.e., marriage in pre- Islamic Arabia, meant different forms of sex relationships between a man and a woman. Prophet Mohammed brought about a complete change in the position of woman in society through Holy Quran, which is the primary and basic source of Islamic Law. In this respect we can do no better than to refer the verses of Holy Quran. Sura 2 Ayat 221 of The Holy Quran as is mentioned in the text book of Mohammedan Law by I. Mulla, Ist Edition, 2nd reprint, at page 162, provides as follows:

"Do not marry unbelieving women until they believe......Nor marry your girls to unbelievers until they believe"

Here a believing woman is referred to such a woman who has embraced Islam and has faith in Prophet Mohammed. Marriage in Muslim law is not only a ritual but is also "a devotional act" as Dr. M.U.S. Jang referred it in his book ''Desertion on the Development of Muslim Law in British India'' (page 1.2.). I. Mulla in his above text book at page 166 has written thus:

"Koranic injunctions recognise in Islam, marriage as the basis of society. Though it is a contract, it is also a sacred covenant. Temporary marriages are forbidden. Marriage as an institution leads to the uplift of man and is a means for the continuance of human race."

Thus what is well recognised in Muslim Law is that marriage is a sacred act. For essentials of a valid muslim marriage, Al-Haj Maulana Fazlul Karim in his translation and commentary of Mishkat-ul-Masabih, Al- Hadis (Book II), Chapter XXVII, Section 2, has written thus:

"In tradition, we find that the following qualifications of a bride should be sought. The bride should be (1) a Muslim (2) chaste (3) virgin, (4) beautiful, (5) accomplished, (6) having sweet tongue, and good manners, (7) possessing property, (8) having children bearing capacity and affectionate nature and (9) equal respectability."

Thus for a valid muslim marriage both the spouses have to be muslim. In the present writ petition this condition is not satisfied as the writ petition lacks credible and accountable material in this respect on which reliance can be placed."

Since for a valid Muslim marriage both the spouses have to be Muslim as per verses of Holy Quran as noted in the judgment in the case of Dilawar Habib Siddiqui (supra) and since undisputedly the petitioner No. 1 is a Hindu girl and has not embraced Islam and as such it cannot be said that there was any valid marriage.

Besides above both the petitioners have stated that they and their parents reside in Mumbai and petitioner No. 2 is working in Mumbai and as such even no cause of action has arisen within the territorial limits of this Court.

In view of the above discussion this Court finds no good reason to grant any relief in this writ petition. In result writ petition fails and is hereby dismissed.