Full Text
Translation output
i2 ?
/.
4#
0/c,26.09.zOLt
Present: Mr. Suresh Sharma for the appellant.
+ MAT APP No. 34l2O11
*
By this appeal fited under section 28 of the Hindu
Marriage Act, 1955, the appellant seeks to assail the order dated 2.4.2OtL passed by the learned Trial. Court, Delhi thereby dismissing the petition filed by him under SeCtion 9 of the Hindu Marriage Act for restitution of conjugal rights.
Assailing the findings of the learned Trial Court, Mr. Suresh Sharma, learned counsel for the appellant contended that the findings given by the learned Trial Court, disbelieving the conversion of the appellant from. Muslim religion to Hindu religion, are perverse and contrary to the records. Learned counsel for the appellant has also submitted that the appellant has duly produced his Conversion
Certificate as weII as produced PW4, the Priest, who performed the essential ceremonies to convert the appellant from Muslim Religion to Hindu religion. Learned counsel also submits that the appellant had also duly proved on record the r[r
2011:DHC:15033
)
A solemnization of marriage with the respondent in Arya Samaj
Mandir, Shanker Nagar Nabi Karim, New Delhi, for which a separate Certificate was issued by Arya Samaj Mandir, New Delhi but the same was also ignored and overlooked by the
Iearned Trial Court. Learned counsel has also submitted that the appellant had even changed his name from Mohd. Kaleem to Kunal, which change of name was also notified by the appellant through a Public Notice, published in the
Navbharat Times NewsPaPer.
I have heard learned counsel for the appellant at a considerable length and give my thoughtful consideration to the pleas raised by him at the stage of admission itself.
This court, in the matter of G.A. Arif @ Arti shanna - vs- Gopal Dutt Sharma, t71(2010) DLT 525, was confronted with a similar situation where also a Muslim girl had pleaded her conversion from Muslim religion to Hindu religion and the Court held as under:-
"Indisputably, the appettant was a Muslim before her alleged marriage with the resptondent and therefore for filing a petition under any of the provisions of the Hindu Marriage Act it was imperative on the part of
.the appetlant to have continued to embrace Hindu religion not only on the date of her alteged marriage with the respondent but also at the
?
L
I -F_
A, time of fiting of the said petitions invoking the provisions of the Hindu
Marriage Act.
According to the Hindu law, marriage is a sacramental union and marriage between two Hindus cannot take place without the pefformance of sdcred rites and ceremonies. 5o far the Muslims are concerned, under the Muslim Personal Law they treat marriage as a
'Contract' and it has never been treated as a sacrament though it is also solemnized with the recitation of verses from the Quran, It is a well known principle of civil law that a person born into or fottowing one retigion continues to belong of such religion subiect to convercion to another religion, Conversion to another religion basically requires change of faith, it is essentially a matter of conviction. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him to Hinduism. The conversion from one retigion is a very major decision in one's life and for proving such a convercion, it is incumbent upon the appellant to place on record complete facts and documentary material, if any, to satisfy the Court that based on such facts and suppofting material, the appellant had undergone change of religion. Change of religion cannot be believed merely on vague oral allegations unsupported by any documentary or uncorroborated oral evidence, It woutd be evident from the aforesaid observation that the
Hon'ble Division Bench of Bombay High Court laid emphasis to the requirement of a strict proof and that the conversion from one religion to another not to be easily inferred."
Conversion from one religion to another religion is the change of one's belief from the tenets of one religion to the other religion and such a change can only come when there is a complete change of the earlier professed faith of the person to a new faith based on an honest conviction and change of belief system. It is also a settled legal position that a party pleading such a change of religion is obligated to give strict proof of such change with cogent and convincing evidence as otherwise a change of religion cannot be easily inferred.
'
I
However, each case depends on its own facts and circumstances and no straightjacket rule can be laid down for the same. In the case in hand, this Court does not find any illegality or perversity in the findings arrived at by the court below. The Priest, PW4, was produced as a witness by the appellant also failed to prove the conversion of the appellant from Muslim religion to Hindu religion. The photographs, which were placed on record as EX.PW412, were found by the
Iearned Trial Court not showing the conversion ceremonies but the same pertained to the solemnization of marriage. The
Iearned Trial Court also rightly observed that so far the insertion of the advertisement in the Newspaper was concerned, the said insertion pertained to the change of the name of the appellant from Muslim name to Hindu name and, therefore, Such a declaration, through newspaper, would not help the appellant to prove the factum of conversion from
Muslim religion to Hindu religion. It would be appropriate to refer to the relevant portion of the observations of the
Iearned Trial Court here:-
'"A
"9. Regarding obseruance of tenets of Hinduism, petitioner stated in his cross-examination that he goes to temple, but admitted that he cannot recite any mantra like Gaytri Mantra or any Aarti, However, there is no cogent and convincing evidence on record to suggest that prior to the solemnization of marriage with the respondent on
18,01.07, the petitioner had change of faith i.e. from Islam to
Hinduism. Conversion to another religion requires change of faith and the same is a matter of conviction. A mere theoretical allegiance to the
Hindu faith by a person born in another faith does not convert him into a Hindu, nor a bare declaration that now he is no more known by
Muslim name tike Mohd. Kaleem, is sufficient to be said a case of conversion to Hinduism. Conversion from one religion to another religion is a major decision in one's life, In absence of any cogent and convincing evidence pertaining to all the relevant facts and circumstances, and merely on vague allegations it cannot be said to be a case of change of religion, Herein as notice above, the petitioner has nowhere specifically testified as to in what manner he embraced/converted to Hinduism.
He simpty testified in his affidavit having embraced/converted to Hindu religion, There is also nothing to suggest as to what incident/incidents in his life led him to change of faith to Islam to Hindu or change of heart and honest conviction in the tenets of Hinduism as against the tenets of Islam. There is also no cogent and convincing evidence on the paft of the petitioner that he opted to embrace Hinduism not only for the purpose of this marriage but actually intended to follow or fotlowed the tenets of Hinduism even prior to and after the marriage, In this case from the evidence, it stands established that parents of none of the pafties to the marriage did pafticipate at the time of their marriage. The marriage was solemnized in a temple. None of their relative did participate at the time of marriage.
It is significant to note that petitioner has not led any cogent or convincing evidence to suggest that. after the solemnization of the marriage, his parents or persons from his neighborhood accepted him as the person belonging to Hindu faith or treated him as a Hindu, As per case of the petitioner himself, he and the respondent reached his house where they stayed till late night hours and that the marriage was consummated, However, petitioner has not examined his parents or any family members or relative to prove that at such and such time they did reach his house or that they were welcomed by his parents, famity members or other relatives, treating him as a Hindu, Petitioner has also not ted any convincing evidence to prove that the respondent used to visit his house and stopped almost daily upto 22.02,2007 and used to stay with him till then, So he has failed to establish that the petitioner bonafide intended to convert from Islam or that he was accepted by his family members or relatives or friends as a Hindu. In this view of the matter, reference may be made to decision in Goona
Durgaprasad Rao -vs' Goona Sudarasanaswami, ILR (1940)
Mad,653, -- ll
From the material available on record this Court finds that only in order to solemnize marriage with the respondent, he merely changed his name from Mohd. Kaleem to Kunal and that he has actually not converted from Islam to Hinduism, with a change of heart and honest conviction in lieu of lslam."
/
On a careful analysis of the said findings arrived at by the learned Trial Court, this Court does not find any pen/ersity or illegality in the same. Having not succeeded to prove his conversion from Muslim r'eligion to Hindu religion, the learned Trial Court has rightly dismissed the petition filed of the -Qonjugal t
\ and thetsame is rights. Thus, there is no
J r r / ,. hereby dismissed. n t\
I /l\
KIJ'^^/
KAILASII GAMBHI& J
September 26, zOlL tp
I by the applicant under Sebtion 9 of the Hindu Marriage Act seeking restitution merit in the appeal
/.
4#
0/c,26.09.zOLt
Present: Mr. Suresh Sharma for the appellant.
+ MAT APP No. 34l2O11
*
By this appeal fited under section 28 of the Hindu
Marriage Act, 1955, the appellant seeks to assail the order dated 2.4.2OtL passed by the learned Trial. Court, Delhi thereby dismissing the petition filed by him under SeCtion 9 of the Hindu Marriage Act for restitution of conjugal rights.
Assailing the findings of the learned Trial Court, Mr. Suresh Sharma, learned counsel for the appellant contended that the findings given by the learned Trial Court, disbelieving the conversion of the appellant from. Muslim religion to Hindu religion, are perverse and contrary to the records. Learned counsel for the appellant has also submitted that the appellant has duly produced his Conversion
Certificate as weII as produced PW4, the Priest, who performed the essential ceremonies to convert the appellant from Muslim Religion to Hindu religion. Learned counsel also submits that the appellant had also duly proved on record the r[r
2011:DHC:15033
)
A solemnization of marriage with the respondent in Arya Samaj
Mandir, Shanker Nagar Nabi Karim, New Delhi, for which a separate Certificate was issued by Arya Samaj Mandir, New Delhi but the same was also ignored and overlooked by the
Iearned Trial Court. Learned counsel has also submitted that the appellant had even changed his name from Mohd. Kaleem to Kunal, which change of name was also notified by the appellant through a Public Notice, published in the
Navbharat Times NewsPaPer.
I have heard learned counsel for the appellant at a considerable length and give my thoughtful consideration to the pleas raised by him at the stage of admission itself.
This court, in the matter of G.A. Arif @ Arti shanna - vs- Gopal Dutt Sharma, t71(2010) DLT 525, was confronted with a similar situation where also a Muslim girl had pleaded her conversion from Muslim religion to Hindu religion and the Court held as under:-
"Indisputably, the appettant was a Muslim before her alleged marriage with the resptondent and therefore for filing a petition under any of the provisions of the Hindu Marriage Act it was imperative on the part of
.the appetlant to have continued to embrace Hindu religion not only on the date of her alteged marriage with the respondent but also at the
?
L
I -F_
A, time of fiting of the said petitions invoking the provisions of the Hindu
Marriage Act.
According to the Hindu law, marriage is a sacramental union and marriage between two Hindus cannot take place without the pefformance of sdcred rites and ceremonies. 5o far the Muslims are concerned, under the Muslim Personal Law they treat marriage as a
'Contract' and it has never been treated as a sacrament though it is also solemnized with the recitation of verses from the Quran, It is a well known principle of civil law that a person born into or fottowing one retigion continues to belong of such religion subiect to convercion to another religion, Conversion to another religion basically requires change of faith, it is essentially a matter of conviction. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him to Hinduism. The conversion from one retigion is a very major decision in one's life and for proving such a convercion, it is incumbent upon the appellant to place on record complete facts and documentary material, if any, to satisfy the Court that based on such facts and suppofting material, the appellant had undergone change of religion. Change of religion cannot be believed merely on vague oral allegations unsupported by any documentary or uncorroborated oral evidence, It woutd be evident from the aforesaid observation that the
Hon'ble Division Bench of Bombay High Court laid emphasis to the requirement of a strict proof and that the conversion from one religion to another not to be easily inferred."
Conversion from one religion to another religion is the change of one's belief from the tenets of one religion to the other religion and such a change can only come when there is a complete change of the earlier professed faith of the person to a new faith based on an honest conviction and change of belief system. It is also a settled legal position that a party pleading such a change of religion is obligated to give strict proof of such change with cogent and convincing evidence as otherwise a change of religion cannot be easily inferred.
'
I
However, each case depends on its own facts and circumstances and no straightjacket rule can be laid down for the same. In the case in hand, this Court does not find any illegality or perversity in the findings arrived at by the court below. The Priest, PW4, was produced as a witness by the appellant also failed to prove the conversion of the appellant from Muslim religion to Hindu religion. The photographs, which were placed on record as EX.PW412, were found by the
Iearned Trial Court not showing the conversion ceremonies but the same pertained to the solemnization of marriage. The
Iearned Trial Court also rightly observed that so far the insertion of the advertisement in the Newspaper was concerned, the said insertion pertained to the change of the name of the appellant from Muslim name to Hindu name and, therefore, Such a declaration, through newspaper, would not help the appellant to prove the factum of conversion from
Muslim religion to Hindu religion. It would be appropriate to refer to the relevant portion of the observations of the
Iearned Trial Court here:-
'"A
"9. Regarding obseruance of tenets of Hinduism, petitioner stated in his cross-examination that he goes to temple, but admitted that he cannot recite any mantra like Gaytri Mantra or any Aarti, However, there is no cogent and convincing evidence on record to suggest that prior to the solemnization of marriage with the respondent on
18,01.07, the petitioner had change of faith i.e. from Islam to
Hinduism. Conversion to another religion requires change of faith and the same is a matter of conviction. A mere theoretical allegiance to the
Hindu faith by a person born in another faith does not convert him into a Hindu, nor a bare declaration that now he is no more known by
Muslim name tike Mohd. Kaleem, is sufficient to be said a case of conversion to Hinduism. Conversion from one religion to another religion is a major decision in one's life, In absence of any cogent and convincing evidence pertaining to all the relevant facts and circumstances, and merely on vague allegations it cannot be said to be a case of change of religion, Herein as notice above, the petitioner has nowhere specifically testified as to in what manner he embraced/converted to Hinduism.
He simpty testified in his affidavit having embraced/converted to Hindu religion, There is also nothing to suggest as to what incident/incidents in his life led him to change of faith to Islam to Hindu or change of heart and honest conviction in the tenets of Hinduism as against the tenets of Islam. There is also no cogent and convincing evidence on the paft of the petitioner that he opted to embrace Hinduism not only for the purpose of this marriage but actually intended to follow or fotlowed the tenets of Hinduism even prior to and after the marriage, In this case from the evidence, it stands established that parents of none of the pafties to the marriage did pafticipate at the time of their marriage. The marriage was solemnized in a temple. None of their relative did participate at the time of marriage.
It is significant to note that petitioner has not led any cogent or convincing evidence to suggest that. after the solemnization of the marriage, his parents or persons from his neighborhood accepted him as the person belonging to Hindu faith or treated him as a Hindu, As per case of the petitioner himself, he and the respondent reached his house where they stayed till late night hours and that the marriage was consummated, However, petitioner has not examined his parents or any family members or relative to prove that at such and such time they did reach his house or that they were welcomed by his parents, famity members or other relatives, treating him as a Hindu, Petitioner has also not ted any convincing evidence to prove that the respondent used to visit his house and stopped almost daily upto 22.02,2007 and used to stay with him till then, So he has failed to establish that the petitioner bonafide intended to convert from Islam or that he was accepted by his family members or relatives or friends as a Hindu. In this view of the matter, reference may be made to decision in Goona
Durgaprasad Rao -vs' Goona Sudarasanaswami, ILR (1940)
Mad,653, -- ll
From the material available on record this Court finds that only in order to solemnize marriage with the respondent, he merely changed his name from Mohd. Kaleem to Kunal and that he has actually not converted from Islam to Hinduism, with a change of heart and honest conviction in lieu of lslam."
/
On a careful analysis of the said findings arrived at by the learned Trial Court, this Court does not find any pen/ersity or illegality in the same. Having not succeeded to prove his conversion from Muslim r'eligion to Hindu religion, the learned Trial Court has rightly dismissed the petition filed of the -Qonjugal t
\ and thetsame is rights. Thus, there is no
J r r / ,. hereby dismissed. n t\
I /l\
KIJ'^^/
KAILASII GAMBHI& J
September 26, zOlL tp
I by the applicant under Sebtion 9 of the Hindu Marriage Act seeking restitution merit in the appeal
JUDGMENT