The main legal point established in the judgment is that the Dissolution of Muslim Marriage Act, 1939, specifically section 4, only modifies the pre-existing rule to the extent of specifying that apostasy does not ipso facto dissolve a marriage contracted under Muslim personal law. The court also clarified that the right of a woman married under Muslim personal law to dissolve the marriage by the mere act of apostasy does not abridge the husband's right to divorce her by pronouncing talaq thrice.

Najmi Waziri, J.

1. The appellant is aggrieved by the judgment and decree of 26th July, 2013 of the Family Court, Saket, New Delhi (“Trial Court”) whereby his marriage with the respondent – contracted as per Muslim personal law – was decreed to have been dissolved due to the latter’s subsequent apostasy (“impugned order”). The respondent had sought for divorce under sections 2(ii), 2(viii)(a) and 2(ix) of the Dissolution of Muslim Marriage Act, 1939 (“Act”).

2. In the divorce petition (“Petition”), while the respondent-wife had also alleged cruelty and neglect by the appellant, she admitted to having become apostate, having reconverted to her original faith, Hinduism, on 4th March, 2012. She contended that inasmuch as she had apostatized, the marriage stood ipso facto dissolved under Muslim personal law. In his reply to the petition, the appellant gave his own version of the facts and opposed/denied inter alia the factum of the respondent’s conversion to Hinduism.

3. Before entering upon a discussion of what the Trial Court concluded on the issues, a few further facts need to be traversed. It is the case of the appellant that pursuant to a college-time romance between the parties, they married each other according to Islamic rites. Prior to contracting the nikah on 15th July, 2010, the respondent had embraced Islam, having renounced Hinduism, admittedly her former religion. She even changed her name from Rishu Arora to Rukhsar.

4. After the marriage, the respondent filed a suit, being CS No. 132 of 2010 before the Senior Civil Judge, New Delhi. She sought a declaration of validity and subsistence of the marriage, allegedly in the apprehension that the appellant / his family may not accept her. The suit was disposed off as the parties appeared before the learned Judge and gave statements as to the validity and subsistence of the marriage. The appellant had relied upon the statement made in these proceedings to contend that the respondent is estopped from denying the existence of the marriage. However, given that there is no estoppel against the law, this contention would be of no relevance in the present matter, as will be discussed further in this Judgment.

5. It was contended that a short while thereafter, differences arose between the parties and they started living separately; the respondent returned to her parents’ home. Thereafter, the respondent filed a complaint under the Prevention of Domestic Violence Against Women Act, 2005 as well as a petition seeking maintenance under section 125 of the Code of Criminal Procedure, 1973. However, both the cases were subsequently withdrawn by her. The withdrawals were sought to be explained as being the result of different legal advice given to her upon change of counsel, that since she had apostatized, neither the marriage nor any right to claim maintenance subsisted. It was in these circumstances that the Petition came to be filed.

6. She contended that whereas the issue of dissolution of the marriage on the grounds of cruelty and neglect required detailed trial, the issue of dissolution on the ground of apostasy did not. She argued that for the latter issue, no evidence is required to be led, as her mere statement ipso facto amounts to abjuration of Islam and its tenets. She filed an affidavit admitting to her apostasy. She also filed two fatwas1 from two muftis2 that the abjuration of Islam would ipso facto dissolve the marriage. A decree to this effect was, ergo, sought by an application under Order XII rule 6 of the Code (“Code”).

An advisory decision based on the Shariat school of Islamic jurisprudence by a mufti (jurisconsult), Masroor Ahmad v State (NCT of Delhi) & Anr., ILR (2007) 2 Del 1329 at para. 15, p. 1349. 2 A mufti is a specialist on law who can give an authoritative opinion on points of doctrine; his considered legal opinion is called a fatwa. Joseph Schacht, An Introduction to Islamic Law, (Clarendon Press, Oxford, 1982), p.73, cited with approval in M