IMPORTANT POINT
Consistency in claims and adherence to legal requirements for marriage under the Special Marriage Act, 1954 are crucial in custody claims. The impact of personal laws and the status of live-in relationships in Indian society must be carefully considered in such cases.

JUDGMENT :

Goutam Bhaduri, J.

Heard.

1. Present appeal is against the judgment dated 13/12/2023 passed by the Judge, Family Court, Dantewada wherein an application filed by the appellant claiming custody of their child which according to the appellant was begotten out of the relationship with non-applicant was claimed, was dismissed at the threshold.

2. The case of the appellant is that the appellant follows the muslim rituals and non-applicant is governed by the hindu law. The application would show that they were in live in relationship for three years, thereafter, in the year 2021 without conversion, they got married. According to the averments, the non-applicant/respondent was his second wife as he was married earlier and from first wife he had three children. The appellant contended that the child was born out of their relation on 31/08/2021. All of a sudden, according to the appellant on 10/08/2023, he discovered that the non-applicant along with the child is missing. Thereafter, he enquired about the whereabouts and a habeas corpus petition was filed before the High Court bearing number WPHC No.25/2023. According to the averments of the petition, the non-applicant appeared alongwith her mother and father and stated that she was living with them as per her own wish. The appellant stated that they were in live in relationship and performed a interfaith marriage. The appellant stated that he is capable to take care of the minor child begotten from their relationship, the non-applicant resisted and he is not allowed to meet the child. The appellant stated that he is capable to maintain the child and also has handsome income. The application when was filed before the learned Family Court, Dantewada that was dismissed under the provisions of Order 7 Rule 11 CPC. Therefore, this appeal.

3. Learned counsel for the appellant would submit that they have performed marriage under the Special Marriage Act, 1954 (hereinafter referred to as ‘the Act of 1954’) and it was a interfaith marriage and under the mahomedan law a person is allowed to perform a second marriage. Therefore that marriage would be valid and the children begotten out of such marriage, the appellant would be the natural guardian, he is entitled to get the custody of the ward and the learned family court should not have at the threshold dismissed the petition claiming custody of the child and prays that the order be set aside.

4. Per contra, learned counsel for the respondent would submit that there is no pleading in the petition that how the marriage is valid. It is stated that the non-applicant did not convert her religion. He would further submit that the claim of valid second marriage and to bring it within the Act of 1954 when the first wife is living second marriage is not permissible. Therefore under admitted facts children born out of live in relationship, the appellant cannot claim to be a legal guardian and the order of the court below is well merited, which do not call for any interference.

5. We have heard the learned counsel for the parties and perused the record.

6. Perusal of the application filed before the family court shows that the appellant stated that he is governed by the muslim law and the non-applicant is governed by hindu law. It was further pleaded that the appellant and the respondent were in live in relationship and thereafter the interfaith marriage was performed. The submission of the appellant before this court is that the marriage was performed under the Act of 1954 and it is also reflected from the pleading that without changing religion, interfaith marriage was performed. Obviously when without change of religion, the marriage in between hindu and muslim takes place, it would be governed by the provisions of the Act of 1954. The pleading of the application claiming custody shows the appellant pleaded that he is still governed by muslim law. There is no pleading as to how the second marriage of the like nature is saved by the custom and if we