IMPORTANT POINT
When a person solemnizes marriage under the Special Marriage Act then the marriage is not governed by personal laws but by Special Marriage Act. The rights and duties arising out of marriage are governed by the Special Marriage Act and the succession is governed by Indian Succession Act, 1925, and not by the personal laws.

J.R. Midha, J.—An important question of law has arisen for consideration in this case as to whether the parties married under the Special Marriage Act, 1954 can be permitted to challenge jurisdiction of the Family Court to entertain and try a petition for dissolution of marriage under the Special Marriage Act.

2. The petitioner and the respondent got married under the Special Marriage Act, 1954 on 20th August, 1998. On 29th September, 2014, the respondent instituted a petition for divorce against the petitioner under Section 27(1) (a) (b) and (d) of the Special Marriage Act, 1954. The Certificate of Marriage under the Special Marriage Act was filed by the respondent along with the petition.

3. The petitioner filed the written statement dated 6th April, 2015 in which he admitted that the marriage was solemnized under the Special Marriage Act on 20th August, 1998. The petitioner further admitted that the respondent was Hindu at the time of the marriage.

4. On 18th November, 2015, the petitioner filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement to challenge the maintainability of the divorce petition under the Special Marriage Act on the ground that the parties are governed by Muslim Personal Laws and the provisions of Special Marriage Act, 1954 were not applicable as the respondent had embraced Islam prior to the solemnization of the marriage under the Special Marriage Act and the parties entered into a nikah ceremony on 06th December, 1998 after their marriage under the Special Marriage Act.

5. The learned Family Court dismissed the application vide order dated 02nd November, 2016 which is under challenge in this petition.

6. Learned counsel for the petitioner urged at the time of the hearing that the amendment is necessary for determining the real issues between the parties. It was submitted that the petitioner has challenged the jurisdiction of the Family Court to entertain and try the divorce petition under the Special Marriage Act on the ground that the parties subsequently performed nikah ceremony on 06th December, 1998 and, therefore, the parties are governed by the Muslim Personal Laws. It is further submitted that the respondent embraced Islam prior to the marriage under the Special Marriage Act on 20th August, 1998.

7. Learned counsel for the respondent urged at the time of the hearing that the parties got married under the Special Marriage Act on 20th August, 1998 and, therefore, the divorce petition is maintainable under the Special Marriage Act. It is further submitted that the petitioner specifically admitted in the written statement on oath that the respondent was Hindu at the time of the filing of the divorce petition whereas in the amendment application, the petitioner has made a contradictory statement that the respondent was a Muslim prior to the solemnization of Marriage under the Special Marriage Act i.e. on 20th August, 1998. It is submitted that the petitioner cannot be permitted to set up a contradictory plea by amendment. It is further submitted that the petitioner has raised a false claim before the Family Court as well as this Court. The relevant portion of the divorce petition and the written statement are reproduced hereunder:

Para 1 of the divorce petition

“1. That the marriage of the petitioner with the Respondent was solemnized on 20.8.1998 under Special Marriages Act in Mumbai. (A copy of the marriage certificate is annexed to this petition.)”

Para 1 of the Written Statement

“1. That in reply to Para No.1 it is submitted that the marriage of petitioner with the respondent was solemnized on 20/08/1998 under Special Marriage Act in Mumbai is not denied, but it is submitted that both the parties to the marriage were not of the same religion so as certificate was obtained but later on respondent belonging to Muslim religious