The Foreign Marriage Act, 1967 is a complete Code governing the consequences of foreign marriages, including the dissolution of marriage, and the Muslim personal law is not a law in force for the purposes of section 18(4) of the Act.

Headnote:
FOREIGN MARRIAGE ACT - FOREIGN MARRIAGE - SECTION 18 - INTERPRETATION AND APPLICATION - MUSLIM PERSONAL LAW - APPLICABILITY TO FOREIGN MARRIAGES - DISSOLUTION OF MARRIAGE - TALAQ - VALIDITY - JURISDICTION OF COURTS.
Fact of the Case:

The appellant, a Muslim man, and the respondent, a Hindu woman, got married in England in 1966 under the civil law applicable there. They returned to India in 1969. The respondent converted to Islam in 1969, and they had a nikah ceremony on the same day. A few years later, the appellant pronounced talaq, purporting to dissolve the marriage. The respondent filed a suit for an injunction restraining the appellant from interfering with her entering and staying in the suit flat, which was the matrimonial home. The appellant counterclaimed for an injunction restraining the respondent from entering the flat.
Finding of the Court:

The court held that the Foreign Marriage Act, 1967 (the Act) applied to all marriages solemnized in a foreign country, whether under the Act or otherwise, where one of the parties was an Indian citizen. The consequences of such a marriage and reliefs in respect thereof were governed by section 18(1) of the Act read with the relevant provisions of the Special Marriage Act, 1954, in all cases except where any Indian law, statutorily or otherwise, provided for the grant of relief. The court found that the Muslim personal law did not provide for the grant of relief in respect of a marriage and that, therefore, the appellant's talaq was invalid as being beyond his power.
Issues: 1. Whether the Foreign Marriage Act, 1967 applied to the marriage between the appellant and the respondent, which was solemnized in England under the civil law applicable there? 2. Whether the Muslim personal law was applicable to the marriage between the appellant and the respondent, which was solemnized in England under the civil law applicable there? 3. Whether the appellant's talaq was valid and effective to dissolve the marriage between the appellant and the respondent.
Ratio Decidendi: 1. The court held that the Foreign Marriage Act, 1967 applied to all marriages solemnized in a foreign country, whether under the Act or otherwise, where one of the parties was an Indian citizen. The court found that the marriage between the appellant and the respondent was a foreign marriage as defined in the Act, as it was solemnized in England under the civil law applicable there and one of the parties was an Indian citizen. 2. The court held that the Muslim personal law was not applicable to the marriage between the appellant and the respondent, which was solemnized in England under the civil law applicable there. The court found that the Act was a complete Code governing the consequences of foreign marriages, including the dissolution of marriage, and that the Muslim personal law was not a law in force for the purposes of section 18(4) of the Act. 3. The court held that the appellant's talaq was invalid and ineffective to dissolve the marriage between the appellant and the respondent. The court found that the appellant did not have the power to dissolve the marriage by talaq under the Muslim personal law, as the Act governed the dissolution of foreign marriages.
Final Decision: The court dismissed the appeal and confirmed the reliefs granted by the trial court in the counterclaim, subject to the qualification that the respondent was directed not to interfere with the appellant's rights in the same manner as the appellant was restrained from interfering with her rights.

JUDGMENT - A.N. MODY, J.:---The suit, the decision in which has led to this appeal, was bitterly fought between the parties and lengthy evidence was recorded in the matter. The suit and the appeal raise interesting and important questions of law. Even before me Mr. Bhatt for the appellant-husband argued the appeal at great length on facts and also made detailed submissions on the questions of law involved. Mrs. Nanavati started her arguments with submissions on questions of law. On hearing her, I found that the appeal is capable of being disposed of on one question of law only since her submission on that question appeared to have great substance. So I stopped her from going into the facts. Mr. Karim for the appellant very ably tried to dislodge her contention but without success.

2. The plaintiff-appellant is the husband of the defendant-respondent. On 6-5-1966, the plaintiff then a Muslim and the defendant then a Hindu got married in England by getting the marriage registered under the civil law applicable there. Both were and are Indian citizens. They returned to Bombay sometime in April 1969. According to the plaintiff the defendant got herself converted to Islam on 29-12-1969 followed by nikah on the same day. A few years thereafter there were disputes between them and appellant purported to dissolve the marriage by pronouncing talaq in accordance with Muslim law. It is alleged by the appellant that the respondent thereafter broke into his residential flat which was the matrimonial home, forcing the plaintiff to file the present suit which is, inter alia, for restraining the defendant from entering the suit flat. The ground on which the relief was sought is that after the divorce the respondent is not entitled to enter the flat. The respondent counter claimed, inter alia, for an injunction restraining the plaintiff from interferring with her entering and staying in the suit flat.

3. Mr. Bhatt for the appellant submits that the conversion and nikah are proved. He has very vigorously attacked the appreciation of evidence by the learned trial Judge and strongly assailed the findings as being completely unjustified by the weight of evidence, particularly in the light of the respondent not being a truthful witness, she having retracted several of her statements made on oath earlier. According to Mr. Bhatt as the parties were Muslims at the relevant time, they were governed by Muslim law and the appellant had a right to give talaq which he had done and the marriage stood dissolved. In support of his contention Mr. Bhatt relied on (Khambatta v. Khambatta)1, 36 Bom.L.R. 1021. He referred to sections 18(1) and (4) of the Foreign Marriage Act and contended that the Muslim personal law was a law in force, particularly as the same had been recognized by the Muslim Personal Law (Shariat) Application Act, 1937 (the Shariat Act). He contends that even if conversion was not proved, a marriage between a Muslim and a Hindu is only an irregular marriage, recognised by Muslim law as "Fasid" marriage and the plaintiff was within his rights to dissolve the same by talaq.

4. The allegations of conversion and nikah are challenged by the respondent. It was contended that there being no conversion the plaintiff did not acquire any right to dissolve the marriage by talaq as per the Muslim personal law applicable in India. She also contends that the alleged Talaq did not have the effect of dissolving the civil marriage performed in England but talaq, if proved, was intended to dissolve only the alleged Muslim marriage (nikah). The claim of "Fasid" marriage was also contested. However, in view of the contention based on the provisions of the Foreign Marriage Act, 1967 (hereinafter referred to as 'the said Act') which came into force in 1969 before the plaintiff pronounced talaq, advanced by Mrs. Nanavati for the respondent and which I am accepting, it is not necessary to decide the other questions of law and fact.

5. The contention of Mrs. Nanavati is

Click Here to Read the rest of this document

Judicial Analysis