Gau HC | If a marriage is first solemnised under the Special Marriage Act and later upon conversion to Islam, marriage is again solemnised under Mohammedan Law: Which law will prevail for dissolution of marriage? Court to consider

Gauhati High Court: Achintya Malla Bujor Barua, J., addressed a matter wherein a marriage took place under the Special Marriage Act, but the wife converted to Islamic Religion during the sustenance of marriage, in light of the said premise under which Act for the purpose of divorce parties would be governed.

In the instant petition, the wife had assailed the first and second talak on 13-01-2015 and 15-02-2015, respectively.

Proceedings initiated by the Muslim Marriage and Divorce Registrar, Sada Kaji, Kamrup stayed as a legal issue was raised that as the marriage in question was performed under the Special Marriage Act, 1954, a proceeding by the Muslim Marriage & Divorce Registrar, is not maintainable.

In the interlocutory application for vacating the interim Order dated 29-04-2015, applicant husband took a stand that in the year 2011 i.e. during the sustenance of the marriage under the Special Marriage Act, the writ petitioner Malina Deb Barman was converted to Islamic religion and since then she is governed by the Mohammedan law. Further, there was also a marriage between the parties under the Mohammedan law on 12-02-2011.

In light of the above-stated that it is stated that interlocutory application for vacating the interim order was instituted on the premises that upon such conversion of the petitioner to Islamic religion and their marriage subsequently solemnized under the Mohammedan law, the parties would now be governed by the principles of Mohammedan law and therefore, a divorce under the principles of Mohammedan law would be maintainable.

Hence, in view of the above, Bench stated that a question for decision would arise, which is as follows:

Whether upon the conversion of the writ petitioner Malina Deb Barman into Islamic religion and upon having subsequently entered into a marriage with the respondent 5 under the Mohammedan law, the original marriage under the Special Marriage Act sustains or such marriage on its own by operation of law had got dissolved.

If the marriage under the Special Marriage Act sustains, whether during the sustenance of such marriage a dissolution of the marriage can be effected under the Mohammedan law.

Court fixed the next date to be 29-05-2020 as the petitioner was not present and again the registry on 29-05-2020 was asked to send a notice to the petitioner.[Md Makfur Rahman v. Malina Deb Barman, 2020 SCC OnLine Gau 4645, decided on 23-04-2020]

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