IMPORTANT POINT
Section 4 of the Act, 1939 materially changes consequences of situation, where Muslim woman renounces Islam or convert to some other faith, this act itself would not dissolve marriage.

Akil Kureshi, J.—Appeal is filed calling in question the legality of judgment and decree dated 21.8.2013 passed by the Additional Judge, Family Court, Vadodara in Family Suit No. 442 of 2012.

2. Brief facts are as under:

Appellant is Christian by birth. She converted to Islam and got married to respondent on 20.2.2003 as per Islamic rights. The marriage of the couple ran into trouble. The appellant claims that she was ill-treated and harassed by her husband. She claims to have converted to her original faith of Christianity on 19.3.2012. On the premise that, upon her re-conversion to her original religion, her marriage with the respondent would stand dissolved, she filed the above noted Family Suit No.442 of 2012 before the Family Court, Baroda. In such family suit, she complained of ill-treatment and harassment by the husband. She has also alleged that since 2008, the husband has neglected to look after the wife and a girl child was born out of the wedlock. She further stated that she had all along followed Christianity as her religion and reconverted to Islam only for the purpose of getting married. She eventually reconverted to her original faith on 19.3.2012. Primarily on such grounds, in the family suit she prayed that the Family Court may pass a decree under Section 7 of the Family Court Act, 1984 read with Section 4 of the Dissolution of Muslim Marriage Act, 1939 (‘Act of 1939’ for short) declaring the marriage solemnized on 20.2.2003 as null and void. She also prayed for monthly maintenance towards the expenses of her daughter.

3. The respondent husband appeared before the Family Court and opposed the petition. He filed application Ex. 15 for rejection of the plaint under Order 7, Rule 11 of the Civil Procedure Code. In such application, he contended that the family suit of the wife is not maintainable under Section 4 of the Act of 1939. As per the husband, merely on re-conversion, the wife could not seek declaration that the marriage stood dissolved. He also questioned the very factum of the wife’s re-conversion to Christianity. On such grounds, he prayed before the Court that the suit itself be rejected in exercise of powers under Order 7, Rule 11 of the Civil Procedure Code.

4. On such application, the Family Court passed impugned order dated 21.8.2013. The learned Judge recorded that in the family suit she has raised grounds of cruelty but has not prayed for dissolution of the marriage on any of the grounds mentioned in Section 2 of the Act of 1939. According to the learned Judge, Section 4 of the Act of 1939 would not apply to a person who had converted into Islam from some other faith and who re-embraces her former faith. The learned Judge further held that the wife had prayed for declaration that the marriage was null and void and not for dissolution of marriage. On such grounds, he was pleased to reject the plaint under Order 7, Rule 11(d) of the Civil Procedure Code.

5. Learned counsel Ms. Jani for the appellant submitted that the Family Court committed a serious error in rejection of the plaint. The appellant had filed the family suit for dissolution of marriage on the grounds mentioned in the said suit. It cannot be stated that the plaint did not disclose any cause of action or that from the statement in the plaint, the suit could be stated to be barred by any law. She contended that, on mere conversion to her original faith, the marriage between the appellant and the respondent would be automatically dissolved. The bar of Section 4 of the Act of 1939 would not apply in such a case. In this context, she relied on an unreported decision of the Delhi High Court in case of Munavvar-ul-Islam v. Rishu Arora @ Rukhsar, AIR 2014 Delhi 130

6. On the other hand, learned counsel Mr. Tirmizi for the respondent opposed the appeal contending that:

(i) The factum of the appellant’s re-conversion to Christianity is not established;

(ii) If she has reconverted to Christianity, as contended by her, she cannot file peti