Cause of action
Guest
(Querist) 03 March 2013
This query is : Resolved
Order VII Rule 11(a) of CPC provides as follows:
"11. Rejection of plaint.- The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;"
Opinions of Experts are solicited on the following queries:
If a muslim wife re-embraces her former faith, her marriage with her muslim husband dissolves automatically. However, as the dissolution is automatic, she does not have any document to prove such automatic dissolution. In such a case,
a) Can she file a suit for declaration of dissolution of marriage against her husband?
b) If so, where she should file such suit for declaration, in a civil court or a Family Court.
c) How cause of action should be disclosed in such a suit for declaration to avoid rejection of the suit under Order VII Rule 11(a) of CPC, if the husband does not deny such automatic dissolution till filing of the suit.
prabhakar singh
(Expert) 03 March 2013
IT IS WRONG TO CONCEIVE THAT "If a muslim wife re-embraces her former faith, her marriage with her muslim husband dissolves automatically." Only those can say so who never have any opportunity to go through enactment titled as THE DISSOLUTION OF MUSLIM MARRIAGES ACT, 1939
ACT No. 8 OF 1939 [ 17th March, 1939.]
your particular attention is drawn to section 4 of this Act which reads :
"Effect of conversion to another faith.- The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage: Provided that after such renunciation, or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in section 2: Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re- embraces her former faith."
So this section is answer to your quest(a)and (c), as regards to (b) suit shall now lie in family court.
Guest
(Querist) 03 March 2013
Respected Shri Prabhakar,
It is clarifid that the query relates to a christan women, who converts to Islam, does Nikah as per muslim customs and rites and then re-embraces her former faith due to which her marriage with her muslim husband dissolves automatically.
Kindly give your worthy opinion on the following points in the light of above position:
a) Can she file a suit for declaration of dissolution of marriage against her husband?
b) If so, where she should file such suit for declaration, in a civil court or a Family Court.
c) How cause of action should be disclosed in such a suit for declaration to avoid rejection of the suit under Order VII Rule 11(a) of CPC, if the husband does not deny such automatic dissolution till filing of the suit
Sudhir Kumar, Advocate
(Expert) 03 March 2013
She was a muslim woman when marraige took place. Marriage with muslim as per muslim rites was valid and bindig on both. It she who has converted to othr faith. So shecannot pray for annulment of marriage.
M
prabhakar singh
(Expert) 03 March 2013
In situation clarified by you proviso 2 to section 4 of the aforesaid Act is attracted
Which does not confer any right in her to file suit for dissolution.
So in such cases law prior to passing of this Act shall apply which does not confer
any cause of action to wife to sue for a declaration of a dissolution taking place automatically.Suit, if filed,would not disclose any cause of action,as specifically laid in proviso 2 of section
4 of the aforesaid Act,hence shall get rejected u/order 7 r.11(a)of C.P.C.
Hence in my view(a) she CAN NOT file a suit for declaration of dissolution of marriage against her husband.HENCE IN MY ANSWER (b)or(c) IS NOT REQUIRED TO BE ADDRESSED AT ALL.
Guest
(Querist) 03 March 2013
I agree that Shri Prabhakar has elaborated the law very well but that is for a case where woman is a muslim originally. My queries, however, relate to a women, who was a christan originally. Please go through the query again, which is given below:
The query relates to a christan women, who converts to Islam, does Nikah as per muslim customs and rites and then re-embraces her former faith due to which her marriage with her muslim husband dissolves automatically.
Kindly give your worthy opinion on the following points in the light of above position:
a) Can she file a suit for declaration of dissolution of marriage against her husband?
b) If so, where she should file such suit for declaration, in a civil court or a Family Court.
c) How cause of action should be disclosed in such a suit for declaration to avoid rejection of the suit under Order VII Rule 11(a) of CPC, if the husband does not deny such automatic dissolution till filing of the suit
prabhakar singh
(Expert) 03 March 2013
Q.a) Can she file a suit for declaration of dissolution of marriage against her husband?
ANSWER: NO!
Q(b) and (c)?
ANSWER:No answer required due to negative answer to (a).
Guest
(Querist) 03 March 2013
I am grateful to Shri Prabhakar Singh for his worthy opinion but question arises without declaration of the Court by which document/papers the christian woman will prove before authorities her marriage dissolved status for the purpose of getting passport, visa, election card, aadhar card and re-marriage etc.
Experts may help please.
ajay sethi
(Expert) 03 March 2013
as explained by Prabhakar singhji the prvoisio to section 4 is clear . the provisions of section 4 of dissolution of Muslim amrriages act 1939 shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith. hence she cannot file any suit for dissolution of marriage if she remebraces christanity .
you have to file an affidavit before the passport office mentioning that your oriiginal name was X you married Y coverted to islam and you have reconverted to christanty . have affidavit duly notarised . that affidavit would help you in procuring other documents .
prabhakar singh
(Expert) 03 March 2013
As of now she is Christian beyond the bar of Muslim personal law which bars her from bringing such a suit.
Resort may be taken of provisions Of Specific Relief Act 1963.
You may go by a judgement by Apex court in
Razia Begum vs Sahebzadi Anwar Begum & Others on 23 May, 1958Equivalent citations: 1958 AIR 886, 1959 SCR 1111
or on http://indiankanoon.org/doc/699829/
Although on old S.R .Act but these enactments apply to all citizens of India irrespective of their faith or religion.
Hence Muslim personal law can be deemed to have been repealed by necessary implication
due to legislation of s.34 of the S.R.Act.
Guest
(Querist) 03 March 2013
Thanks very much. The practical problem is that every authority asks for legal document as a proof for automatic dissolution of her marriage.
prabhakar singh
(Expert) 03 March 2013
(a) It would be suit under s.34 of S.R. Act
NOT TO DECLARE THE MARRIAGE DISSOLVED BUT FOR A DECLARATION THAT PLAINTIFF IS NO MORE WIFE OF DEFENDANT.
(b) Such a suit must be filed in CIVIL COURT ONLY
(c)That due to plaintiff having repudiated islam after her nikah with defendant the spouse relationship between the the plaintiff and defendant has ceased to exist
as per law of marriage in islam yet the defendant is claiming plaintiff to be his wife which a cloud on status of the legal character of the plaintiff.
Guest
(Querist) 03 March 2013
hanks very much. The practical problem is that every authority asks for legal document as a proof for automatic dissolution of her marriage.
Guest
(Querist) 03 March 2013
Thanks Mr. Barman.
Please advise how cause of action should be disclosed in such a suit for declaration to avoid rejection of the suit under Order VII Rule 11(a) of CPC, if the husband does not deny such automatic dissolution till filing of the suit.
prabhakar singh
(Expert) 03 March 2013
For consideration of an application moved u/o 7 r 11 it is judicially settled by the Apex court that only cause of action pleaded in the pliant has to be looked into and considered as if they were true,they have not to be tested against the version of defendant at that stage.
When the husband would come and plead that he has never denied,suit shall be tried and decreed.
If he admits plaint yet also suit shall be decreed.
Guest
(Querist) 03 March 2013
Respected Mr. Singh,
In this case application will not be moved u/o VII r 11. Rather, it is apprehended that in the absence of denial by the husband, suit for declaration of automatic dissolution of marriage, if filed by wife, could be dismissed by the judge under u/o VII r 11 on the ground of "cause of action" being absent in the suit. Please advise can suit under s.34 of S.R. Act be filed in such a situation.
prabhakar singh
(Expert) 03 March 2013
I have already said in my first post that a suit to declare that marriage has automatically dissolved shall not lie due to proviso 2 of s.4 of ACT No. 8 OF 1939.
But you can file a suit under s.34 of S.R.Act.
"(a) It would be suit under s.34 of S.R. Act
NOT TO DECLARE THE MARRIAGE DISSOLVED BUT FOR A DECLARATION THAT PLAINTIFF IS NO MORE WIFE OF DEFENDANT.
(b) Such a suit must be filed in CIVIL COURT ONLY
(c)That due to plaintiff having repudiated islam after her nikah with defendant the spouse relationship between the plaintiff and the defendant has ceased to exist as per law of marriage in islam ,yet the defendant is claiming plaintiff to be his wife which is a cloud on status of the legal character of the plaintiff."
Raj Kumar Makkad
(Expert) 03 March 2013
I do agree with Mr. Singh that in the given case the civil suit under section 34 of Specific Relief act is maintainable.
Guest
(Querist) 04 March 2013
Respected Mr. Singh has suggested to include in the declaration suit that "the defendant is claiming plaintiff to be his wife which is a cloud on status of the legal character of the plaintiff." In case at present there is no document to prove such claim, what is the time-limit within which such types of claims can be legally raised by the Husband.
V R SHROFF
(Expert) 07 July 2014
ACADEMIC QUERY::
MOST OF THE 167 QUERIES Asked by you ARE NOT YOUR PERSONAL LEGAL PROBLEM :
So for your academic interest.
Guest
(Expert) 07 July 2014
Are you Christian and your wife Muslim? It has been observed that you always pose academic queries of even no remote concern with you.
Raj Kumar Makkad
(Expert) 07 July 2014
It is not good to raise just academic queries and thus wasting the valuable time of the experts.
