Civil Revision Application No.113 of 2004,Writ Petition No.912 of 2004

10th December, 2008

Petitioner Counsel: Ms. CHANDANA SALGAOCAR-RADIA

JUDGMENT

JUDGMENT:- The order challenged in this Civil Revision Application has been passed by the Family Court, Mumbai on 8th June, 2004. By this order, the Family Court has rejected the application filed by the wife for rejecting the Marriage Petition. She had contended in her application that a Marriage Petition filed under the Hindu Marriage Act, 1955 was not maintainable as she was married to the 1st respondent under the Foreign Marriage Act, 1969. The interim order passed by the Family Court in an application filed under section 27 of the Hindu Marriage Act has been challenged in the writ petition. Since both the Civil Revision Application and the Writ Petition arise from orders passed in the same marriage petition filed before the Family Court, they are being heard together. For the sake of convenience the wife who is the applicant in the Civil Revision Application and the petitioner in the Petition will be hereafter be referred to as the petitioner. The husband who is Respondent No.1 in the Civil Revision Application and the sole Respondent in the Writ Petition will be referred to as the respondent.

2. The facts involved in the present Petition are as follows:-

3. The petitioner and the 1st respondent were married in Japan on 5th November, 1972. This marriage was solemnized in the Sumiyoshi Temple, Osaka, Japan. The marriage ceremony was performed by a Japanese Priest in the temple and according to the rites followed by the Japanese in that temple. The marriage was then registered under the Foreign Marriage Act. On 16th November, 1972 a certificate of registration was issued by the Consulate General of India, Kobe under Section 70 of the Foreign Marriage Act. The certificate was also signed by the petitioner and the 1st respondent. Three witnesses to the marriage have also signed the certificate of registration of the marriage besides the Consulate General of India, Kobe, Japan.

4. Respondent No.1 filed M.J. Petition No.A-1931 of 2003 under Section 13(1)(ia) of the Hindu Marriage Act, 1955. He also filed an application under Section 27 of the Hindu Marriage Act for disposal of property.

5. The Family Court passed orders on the application filed. By an order of 30th December, 2003, certain interim orders were passed by the Family Court in respect of several properties, some of which were not owned by either the petitioner or the 1st respondent. The petitioner challenged that order by filing Writ Petition No.912 of 2004. An application was filed by the petitioner on 3rd February, 2004 before the Family Court contending that a preliminary issue be framed under Section 9-A of the Code of Civil Procedure as to whether the Petition could be entertained under the Hindu Marriage Act.

6. Accordingly the Family Court has passed the impugned order on 8th June, 2004 concluding that the marriage was solemnized under the Hindu Marriage Act, before the petitioner and the 1st respondent were married under the religious rites of the Sumiyoshi Temple. It was therefore held that a Petition under the Hindu Marriage Act was maintainable and could be entertained by the Family Court. It is this order which has been challenged in the Revision Application. As a consequence, the Family Court allowed the application filed by the Respondent u/s.27 of the Hindu Marriage Act, partly.

7. The learned Counsel for the petitioner has submitted that when a marriage is registered under the Foreign Marriage Act, 1969, reliefs in case of a matrimonial dispute can only be obtained under the Special Marriage Act, 1954. She submits that a party cannot contend after being married under the Foreign Marriage Act that he or she is entitled to relief under the Hindu Marriage Act. She submits that the Family Court ought to have therefore exercised jurisdiction under Order 7, Rule 11(d) and Rule 12 of the Code of Civil Procedure and rejected the Petition filed by respondent No.1. The learned Counsel submits that the Family Court fell in error when it concluded that the certificate of registration of the marriage issued by the Consulate General of India, Kobe, Japan was not conclusive proof of the marriage being solemnized by following Japanese rituals and not under the Hindu Marriage Act. According to the learned Counsel while doing so, the Family Court has ignored the pleadings on record which indicate that the marriage ceremony was solemnized in the Sumiyoshi Temple according to the rites followed by the temple. The learned Counsel submits that Section 17 of the Foreign Marriage Act itself provides that a marriage certificate issued under the Act is conclusive proof that the marriage has been solemnized in a foreign country in accordance with the law of that country. She then points out that relief in matrimonial matters in respect of foreign marriages or marriages registered under the Foreign Marriage Act are available to the parties under the Special Marriage Act only. She therefore submits that the Marriage Petition ought to have been rejected by the Family Court and the Petition should have been returned to the 1st respondent for filing it in accordance with law.

8. I have not had the advantage of hearing arguments for the 1st respondent as nobody has appeared for him although the matter was called out on 12th November, 2008 as well as on 14th November, 2008. However, the learned Counsel for the Petitioner has very fairly invited my attention to the relevant provisions of law and certain judgments in that behalf. She has very succinctly placed before me the aforesaid submissions for consideration.

9. The Marriage Petition filed by the 1st respondent indicates that it has been filed not only against the petitioner but also against their two major sons and one Aloo B. Tantra. The respondent has contended that he married the petitioner according to the Hindu Vedic rites in a ceremony on 4th November, 1972 at the Sumiyoshi Temple, Osaka. He has also admitted that the marriage was registered with the Indian Consulate in Kobe, Japan. The reliefs claimed by the 1st respondent are for dissolution of the marriage under Section 13(1)(ia) of the Hindu Marriage Act. Certain other reliefs have also been claimed by the respondent with respect to various properties, which he has pleaded in the Marriage Petition, are in the names of his two major sons or Aloo Tantra or the Anand Trust.

10. In reply to the application filed by the petitioner for return of the Petition under Order 7, Rule 11 of the Code of Civil Procedure, the respondent No.1 has admitted that the ceremony had been performed in the Japanese Temple by a Japanese Priest on 5th November, 1972. He also admitted that the marriage was registered under the Foreign Marriage Act. The respondent No.1 however pleaded that the marriage took place on 4th November, 1972 by following the Vedic rites under the Hindu Marriage Act at his friend's place in Japan. Thereafter a ceremony was performed by the Japanese Priest on 5th November, 1972 in the Sumiyoshi Temple, Osaka. The Family Court has held that the certificate of registration is not sufficient or conclusive proof of the marriage being solemnized by a Japanese ceremony.

11. It would be fruitful to consider some of the provisions of the Foreign Marriage Act. Section 17 reads as under:-

"17. Registration of foreign marriages -

(1). Where -

(a). a Marriage Officer is satisfied that a marriage has been duly solemnized in a foreign country in accordance with the law of that country between parties of whom one at least was a citizen of India; and

(b). a party to the marriage informs the Marriage Officer in writing that he or she desires the marriage to be registered under this section, the Marriage Officer may, upon payment of the prescribed fee, register the marriage.

(2). No marriage shall be registered under this section unless at the time of registration it satisfies the conditions mentioned in Section 4.

(3). The Marriage Officer may, for reasons to be recorded in writing, refuse to register a marriage under this section on the ground that in his opinion the marriage is inconsistent with international law or the committee of nations.

(4). Where a Marriage Officer refuses to register a marriage under this section the party applying for registration may appeal to the Central Government in the prescribed manner within a period of thirty days from the date of such refusal; and the Marriage Officer shall act in conformity with the decision of the Central Government on such appeal.

(5). Registration of a marriage under this section shall be effected by the Marriage Officer entering a certificate of the marriage in the prescribed form and in the prescribed manner in the Marriage Certificate Book, and such certificate shall be signed by the parties to the marriage and by three witnesses.

(6). A marriage registered under this section shall, as from the date of registration, be deemed to have been solemnized under this Act."

12. Thus a marriage officer can register a marriage solemnized in a foreign country if he is satisfied that it has been performed in accordance with the law of that country. Sub-section 6 makes it very clear that a marriage registered under the Foreign Marriage Act shall be deemed to have been solemnized under that Act. Therefore once a marriage is registered under the Foreign Marriage Act, the parties cannot contend that they are governed by any other Act but the Foreign Marriage Act. Section 14 of the Foreign Marriage Act provides that when a marriage is solemnized under the Act, the marriage officer shall enter a certificate thereof in the form specified in the marriage certificate book. Such a certificate is to be signed by the parties to the marriage and three witnesses. Sub-section 2 of the Section provides that on a certificate being entered in the marriage certificate book by the marriage officer, the certificate is deemed to be conclusive of the fact that a marriage under the Foreign Marriage Act has been solemnized. Section 18 of the Foreign Marriage Act provides that the provisions of Chapters IV, V, VI and VII of the Special Marriage Act, 1954 apply in relation to marriages solemnized under the Foreign Marriage Act.

13. Undisputedly, the marriage which was solemnized between the petitioner and the respondent has been registered under the Foreign Marriage Act, 1969. Thus, no relief can be claimed by the respondent in a Petition filed under the Hindu Marriage Act. The Family Court ought to have rejected the Petition on this ground. Section 7 of the Family Courts Act provides that it can exercise such jurisdiction as is exercised by the District Court or any Subordinate Civil Court under any law in respect of suits and proceedings. Therefore, the Family Court was bound to follow Order 7, Rule 11 and reject the Petition, it having been filed under the Hindu Marriage Act. The reasons given by the Family Court for not accepting the certificate of registration under the Foreign Marriage Act issued by the Consulate General of India in Kobe are, to say the least, unacceptable. He has refused to believe that the parties could have been married according to the Japanese religious rites as "normally two Hindus do not prefer to enter into the marriage ceremony in any other form, except Hindu form of marriage, unless there are any special reasons for them to enter in any other form of marriage." This reason given by the learned Judge for disbelieving the fact that the marriage was solemnized under the Japanese religious rites is unsustainable. One cannot generalize that two Hindus would not be married in any other form, but in accordance with the Vedic rites. The presumption drawn by the Court is not based on any material on record but appears to be his ipse dixit. It is not unknown that two Hindus do get married under the Special Marriage Act, 1954. Therefore, the surmise drawn by the Family Court is utterly unwarranted.

14. In my opinion, the order of the Family Court holding that the Petition under the Hindu Marriage Act is maintainable is unsustainable and devoid of merit and is therefore set aside.

15. The Civil Revision Application is allowed. The M.J. Petition No.A-1931 of 2003 filed by the 1st respondent is rejected.

16. In view of the fact that I have allowed the Civil Revision Application, I need not consider whether the impugned order in the Writ Petition No.912 of 2004 is correct as it has been passed under Section 27 of the Hindu Marriage Act. When the Court has no jurisdiction to entertain the Petition filed by the 1st respondent under the Hindu Marriage Act, it cannot grant interim relief under that Act. Hence the order impugned in the Writ Petition is also set aside.

17. Both the Civil Revision Application and the Writ Petition are allowed.

18. No orders as to costs.

Revision allowed.