1

MOOT COURT MEMORIAL

In partial fulfilment of Sixth Semester LL.B Unitary

Degree Course

Submitted by

1. Mahanudevan V.K. 13551043

2 Manu Raj. 13551060

3. Pradeep A.S 13551053

4. Pradeep T. S. 13551055

5. Rajesh G. 13551063

6. Raju P.K. 13551066

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IN THE SUPREME COURT OF INDIA

(ORIGINAL/CRIMINAL/CIVIL/APPELLATE JURISDICTION)
WRIT PETITION (CIVIL) NO. /2016

BETWEEN

Anjali & Emily Dickens Appellant

AND

Nilanjan Respondent
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LIST OF ABBREVIATIONS
AIR All India Reporter

HC High Court

SC Supreme Court

Ors Others

HMA Hindu Marriage Act

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TABLE OF CASES
1. AIR 1950 Eugene Berthinume V Dame Anne Marrie

2. Abdur Rahim undre Vs Padma Abdur Rahim, (AIR 1982 Bom,

341,2(1982)DMC204)

3. Fuzlunbi v K.Khader AIR 1989 Sc 1930.

4. Shamim Ara v State of Uttar Pradesh and Anr,AIR 2002 SC 3551,

5. Astaq Qureshi Vs Ayshe Qureshi, (1971)

6. Daniel Latifi vs. Union of India, (2001) 7 SCC 740

7. Sheikh Fazher v Aisa, ILR (1929) 8 Pat 690

8. Salema v Sheikh, AIR 1973 MP 207

9. Mirian v Maimma, AIR 1949 Ass 14

10. Raj Mohammed v. Shaheeda AIR1976 Kant 200

11. Khambatta v.Khambatta AIR 1935 bum 5 1934,36 Bom LR 1021, 1905

12. Travers v.Holly

13. R.V.Hammersmith

14. starkowski V AG

15. Arti Sharma Vs. Gopal Dutt Sharma, 2010

16. . Sangeeta v. Preston Gomes MAT.APP. 2010

17. Aiyasabibi v. Subodh Chandra 49 CWN 439

18. Mst. Zohara Khatoon vs Mohd. Ibrahim AIR 1981 SC 1243,

19. Manzoor Ahmad Khan v. Mst. Saja and ors (2003 (II) SLJ 619)
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20. Mst. Amina Banoo v. Abdul Majid Ganai (2005 (I) SLJ 341)

21. Nirmala v Rukmani, AIR 1994 364

22. Soham Singh v Kabla Singh, AIR 1928 Lah 706

23. U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008,
(Arising out of SLP (C) No. 11785 OF 2007)

24. Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20

25. Bhaurao V. State of Maharashtra AIR 1965 SC 1564

26. Foolchand v Nazib (1909) 36 Cal 184

27. Le Mesuriar v. Le Mesuriar, [1895-9] All ER Rep. 836

28. Saleema Basha vs. Mumtaz Begam,19 98 Cri. L.J. 47 82

29. Ahmed Kasim Molla vs. Khatun Bibi, ILR 59 Cal 833

30. Yousuf Rawther vs. Sowramma AIR 19 71 Ker 261

31. Saleem Basha vs. Mumtaz Begam, 1998 Cri. L.J. 4782

32. Jiauddin Ahmed vs. Anwara Begum,(1981) 1 GLR 358

33. Fazlunbi vs. K.Khader Vali, AIR 1980 SC 1730

34. A.S.Parveen Akthar vs The Union Of India

35. Abdur Rahim Undre v. Padma Abdur Rahim, AIR 1982 Bom

36. Khambutta V Khambutta,

37. Skinner v Skinner 1897 ILR 25 Cal 537

38. Durga Prasad Rao Vs. Sidar Sanaswami

39. Laxman Singh v Keshar Bai, AIR 1966 MP 166 and Surjit v Gajra , AIR 1994 SC
135
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40. Dr. A.N.Mukherji v State, AIR 1969 All 489

41. Rajathi v Seilliah, (1966) 2 MLJ 40,

42. Shahji v Gopinath AIR 1995 Mad 161

43. U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF 2008

44. Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20

45. Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099

46. Kenchegowda v/s K.B. Krishnappa, (2 February, 2008)

47. T. Ramayammal vs. T.Mathummal AIR 1974 (Madras) 321,

48. Jinia Keotin & Ors vs Kumar Sitaram Manjhi & Ors on 20 December, 2002
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INDEX OF AUTHORITIES

List of Statutes
1. Hindu Marriage Act, 1955
2. Special Marriage Act, 1954
3. Hindu Succession (Amendment) Act, 2005
4. Private International Law
5. Muslim Law

Dictionaries
Black's Law Dictionary, 7th Edition

Web sites

1. www.advocatekhoj.com

2. www.Indiakanoon.com

3. lawyerssclubindia.com

4. www.scconline.com
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To

The HON'BLE CHIEF JUSTICE OF IN THE HIGH COURT OF JUDICATURE

FOR -----------------------

Prayer ------------Petition is filled under Section ---------------- of -------------- to

set aside the order passed by -------------Court, ------------------

The Humble petition of the Petitioner above named Most Respectfully Showeth

The revision petition is directed against the order dated ------------ passed by
Judge -------------------- in ---------------- case No---------- whereby application
under Section ----------filed by present petitioner was dismissed.

The application of petitioner Sm.Emily and Smt. Anjali was dismissed by the
--------- Court. Being aggreived with the aforesaid order of --------- court, the
petitioners had preferred this revision petition before this court as ------------ but
if appears that D-------------------- was made and it was subsequently described as
--------------------------
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STATEMENT OF FACTS

1. Emily Dickens, English Writer, met Amir Iqbal, Indian poet at the Royal
Asiatic Society meeting held in London. They fell in love and married
soon thereafter in the civil ceremony at the Royal Pavilion, Brighton on
December, 16, 1966 in England according to the requirements of English
Law. At the time of the marriage the husband was a Muslim, domiciled in
India, and the wife was a Christian, domiciled in England; after the
marriage, Emily acquired her husband’s domicile.

2. They went together to India in 1969 where subsequently Emily embraced

Islam. Over time, due to incompatibility between the husband and the
wife, problems cropped up in the marriage; an exasperated Emily went to
England on a brief visit to meet her family in July 1974.

3. In the meantime, Domicile and Matrimonial Proceedings Act, 1973 came

into force in England.

4. On August 2, 1974, Amir Iqbal gave divorce to Emily in her absence by

pronouncing the triple talaq in India. As soon as Emily became aware of
this development, in early September 1974, she reconverted to
Christianity.

5. Later in January 1975, Emily met Jamini Rai, an Indian entrepreneur, at a

literature festival in London. Jamini had professional interests in Europe
and India, and also had substantial properties there. He was a Hindu
widower with a son, Nilanjan, from his earlier marriage.
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6. Emily and Jamini liked each other and on finding each other suitable, they
decided to get married. Emily became a Hindu and began practising
Hinduism. On May 8, 1975, Emily and Jamini, got married in London, in
a religious ceremony according to Hindu rites. At the time of the marriage,
both were domiciled in India.

7. In 1980, they went to Hyderabad, India to stay there permanently. On

April 21,1984, they were blessed with a daughter, Anjali.

8. In 2006, Jamini met with a tragic road accident in Hyderabad. He died

intestate leaving behind his share in ancestral (movable and immovable)
properties in Hyderabad. He also had self-acquired movable and
immovable properties in Mumbai (India), Paris (France), and London
(UK).

9. In June 2006, Nilanjan Rai, Jamini’s son from his first marriage, filed a
suit before the District Court, Hyderabad, for a declaration that he is the
sole successor to both the immovable as well as movable property of
Jamini Rai. The suit was challenged by Emily along with Anjali, claiming
that they are the legal heirs of Jamini Rai and that they were entitled to a
share in all the property of Jamini Rai.

10.The trial court accepted Nilanjan’s contention that Emily was not the
lawful wife of Jamini Rai as her earlier marriage was not dissolved
according to civil marriage law of England and the triple talaq divorce of
Emily’s first marriage was invalid, rendering her subsequent marriage to
Jamini void. Therefore, it was held that Emily would not inherit any share
in Jamini’s property.
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11. The Court further held that Anjali being the illegitimate child of Jamini
Rai, Nilanjan will remain the sole successor to his father’s ancestral
property. The trial court ruled in his favour, stating that while Anjali could
inherit her father’s self - acquired property she was not entitled to a share
in her father’s ancestral property.

12. On appeal, the High Court upheld the order of the trial court. However,
noting the complexity of the case and for further clarification of the legal
issues involved in the case, leave to appeal under Article 136 was granted

PRAYER

1. First marriage and divorce of the appellant is valid, as per law

2. Second marriage of the appellant as per the Hindu law, is valid
3. Appellant is entitled to get both ancestral property and self acquired
property
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QUESTIONS PRESENTED FOR PETITIONER

1, Whether the first marriage and divorce of the petitioner is valid, as per law?

2, Whether the second marriage of the petitioner, as per the Hindu law, is valid?

3. Whether the petitioner’s entitled to get both ancestral property and self
acquired property?

SUMMARY OF ARGUMENTS

1. The first marriage and divorce of petitioner is valid.

2. The second marriage of the petitioner is also valid.
3. The petitioners are entitled to get both ancestral and self acquired
property.
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 FOR PETITIONER

ISSUES PRESENTED

• Whether the first marriage and divorce of the petitioner is valid, as per law.

The Petitioner,a christian domiciled in England,  married her husband,who is a
muslim domiciled in India, in a civil ceremony, on December 16 , 1966, according to
the requirements of English law. The Petitioner later acquired her husband's domicile
and embraced Islam. 

  The British marriage Act,1949 recognises Civil ceremony  which can take place
at a register office or approved venue and may not contain any religious content. To be
valid, all marriages which take place in the UK must be monogamus and carried out in
accordance   with   the   requirements   of   the   marriage   Act   1949.   The   domicile   of   the
parties is not relevant. As held by the privy Council in AIR 1950 Eugene Berthinume
V Dame Anne Marrie1, if a marriage is good by the law of the country where it is
effected,   it   is   good   all   over   the   world   no   matter,   whether   the   proceedings   of   the
ceremony which constituted the marriage according to the Law of place would not
constitute marriage in the country of domicile of one or the other spouses. According
to the petitioner, her marriage in England was under civil law of England.

Both the Petitioner and her husband lived in India from 1969 till her return to
England in 1974.The  law  applicable  to the  said  marriage  is  the  personal law.  The
personal law of an individual in India is governed or determined by his membership in
a community and not   by his domicile. According to the muslim law,the husband is
authorized to give talaq to his wife without intervention of the court.

As laid down in Abdur Rahim undre Vs Padma Abdur Rahim,  (AIR 1982
Bom, 341,2(1982)DMC204)2 the law applicable to the above marriage is the personal

1 AIR 1950 Eugene Berthinume V Dame Anne Marrie

2 Abdur Rahim undre Vs Padma Abdur Rahim,  (AIR 1982 Bom, 341,2 (1982) 
DMC204)
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law viz. Muslim law. According to the  Muslim law the  husband is authorised to give
talaq to his wife without intervention of court. 

Divorce under Muslim law  is largely nonjudicial and may be divided under two
heads 1. unilateral divorce by husband  and (b) divorce  at the instance of the wife but
with the consent of the husband. The former is called Talaq. It may be oral or in
writing and no particular form is reqired. The intention to divorce must be clear and
unequivocal and the presence of wife is not required and the muslim husband need not
mention any reason or cause. Under Muslim law,talaq is good even if pronounced at
whim or in tantrum Fuzlunbi v K.Khader AIR 1989 Sc 19303.

In Shamim Ara v State of Uttar Pradesh and Anr,AIR 2002 SC 3551 4,it is
held that the talak to be effective, has to be pronounced.The talak pronounced in the
absence of wife takes effect even though not communicated to her.

In  Astaq Qureshi Vs Ayshe Qureshi5, (1971)  it is held that once the Indian
court decides that it has jurisdiction to entertain the petition for divorce, then it will
apply the personal law of the parties, and talaq pronounced in respect of marriage
celebrated in England will be recognised, if under the law of domicile of parties this
mode of divorce was valid 

A divorce can be effected either by orally by spoken word or by written

document. In the case of Daniel Latifi vs. Union of India, (2001) 7 SCC 7406,
the court also affirmed the same thing. In Sheikh Fazher v Aisa, ILR (1929) 8
Pat 6907, In Salema v Sheikh, AIR 1973 MP 2078, when a person proclaims
divorce thee it results in dissolution of marriage irrevocably. In Mirian v
9
Maimma, AIR 1949 Ass 14 , the talk has to be effective only when it is
pronounced. The term pronounced means to proclaim to utter formally or to
utter rhetorically. It is held that the marriage between the parties which took place in
3 Fuzlunbi v K.Khader AIR 1989 Sc 1930

4 Shamim Ara v State of Uttar Pradesh and Anr,AIR 2002 SC 3551

5 Astaq Qureshi Vs Ayshe Qureshi

6 Daniel Latifi vs. Union of India, (2001) 7 SCC 740

7 Sheikh Fazher v Aisa, ILR (1929) 8 Pat 690

8 Salema v Sheikh, AIR 1973 MP 207

9 Mirian v Maimma, AIR 1949 Ass 14,
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the year 1966 in England was performed according to the British marriage Act.   On
their return to India they were governed by the  law of domicile, which is the personal
law of the husband viz. mohammedan Law and therefore it is open to the husband to
give divorce to his wife according to the provisions  of Mohammedan Law. In personal
or   family   matters   in   India,   the   Muslims   are   governed  by   Mohammedan   Law,  Raj
Mohammed v. Shaheeda AIR1976 Kant 20010

In Khambatta v.Khambatta  AIR 1935 bum 5 1934,36 Bom LR 1021, 190511
the court was called upon to decide whether the marriage was governed by the law
applicable at the   time of the marriage or was governed by the law applicable after
convertion or the law of the matrimonial domicile The court observed that  if change of
domicile can effect a change in status then is no reason why the change in status then,
there is no reason why the change of religion should not do the same thing. It is held
that   as   it   would   he   law   after   conversion   that   would   govern   the   marriage   the   first
marriage was validly dissolved. Relying upon the decision of the court in khambatta V
khambatta   that   so   far   as   lex   domicilli   is   concerned,   the   present   marriage   will   be
governed by the personal law of the husband viz Mohammedan law.

As per section 2 of the Recognition of Divorces and legal separations Act 1971 ,
Foreign divorce  will be recognized by English court whether it is obtained in judicial
proceedings or other proceedings ie, the nonjudicial divorces will be recognized in
England if they were valid under the law of the country where they were granted, they
would also be recognized in England if they  were recognized under the personal law
of   parties.   Thus   English   court   would   recognize   foreign   decree   of   divorce,   if   it   is
recognised as valid by the court of the domicile of the parties, Travers v.Holly12

In  R.V.Hammersmith13  the English court said that the nonjudicial divorce in
muslim form of talaq could not effectively dissolve an English marriage. English law
then   veered around to the position that nonjudicial divorce in any form would be
recognised in England if parties were domiciled in a country which recognised such
mode of dissolution of marriage.

1 0 Raj Mohammed v. Shaheeda AIR1976 Kant 200

1 1 Khambatta v.Khambatta AIR 1935 bum 5 1934,36 Bom LR 1021, 1905

1 2 Travers v.Holly

1 3 R.V.Hammersmith
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Here   the  first  marriage   of  the   pettioner  is   valid  as  per  the  English  law and
subsequent divorce by her husband, as per the muslim law is also valid and recognised
by the English court of law.   

2. whether the second marriage of the petitioner, as per the Hindu law, is
valid.
In India marriage is a personal affair and governed by the law of each
personal community, following its particular religion, like Hinduism , Islam, christian
or Jainism. There is no territorial law governing personal matters of all these religious
communities. The personal law of an individual in India is governed or determined by
his membership of a community and not by his domicile. These personal laws are not
lexloci ie. Laws confined to particular territory or domicile but they have an extra
territorial jurisdiction or application. In order to apply the provisions of the Hindu
Marriage Act 1955 both, parties must be domiciled in India and it is not enough that
one of them was a domicile of the country.

The Indian courts would accord reecognition to such marriage even if one of
the parties or both the parties have no capacity to enter into the marriage under their
antenuptial domicile or the law of marriage is essential a personal law- personal law, in
the sense that the governing law of marriage is not the Indian law or the state law but
the law of the community to which parties belong. The most remarkable feature of
 17

Indian Law is that the special Marriage between any two persons also gives birth to a
separate personal law. If any two persons perform their marriage under the Act, then
the validity of the marriage is determined under the Act even when both the parties are
domiciled elsewhere.

As to the marriage solemnized abroad, the act lays down that they will come
under the perview of the general rules of private International law which lays down
that a marriage to be formally valid must comply with the local law- locus regit actum.
A marriage which does not comply with the formalities of the local laws not valid. If
the marriage is formally valid in accordance with the law of the place where took
place then, the marriage would be valid every where. It the law of the place where the
marriage iis solemnized lays down that a marriage which complies with the
requirements of the personal law of the parties is valid, then a marriage performed
accordingly will be valid

In starkowski V AG14 it was held that a marriage which is initially invalied by

local law will be recognized if it is subsequently validated by local legislation.

It may be noted that under the Hindu Marriage Act, 1955 'any two Hindus'
whether domiciled in India or not, whether Indian nationals or foreigners, can perform
their marriage in customery modes. Arti Sharma Vs. Gopal Dutt Sharma, 201015.

According to the Hindu law marriage is a sacramental union and marriage

between two Hindus cannot take place without the performance of sacred rites and
ceremonies. As per section 5(1) of the Hindu Marriage Act, 1955, a marriage may be
solemnized between any two hindus, if neither parties has a spouse living at the time
of marriage.

Here the petitioner was divorced by her Muslim husband whereafter she
converted to Christanity. At the time of the second marraige with a hindu man, she
became a Hindu and began praticing Hinduism. They were married in a Hindu
ceremony according to Hindu rites. Sangeeta v. Preston Gomes MAT.APP. 201016.

14 starkowski V AG

15 Arti Sharma Vs. Gopal Dutt Sharma, 2010

1 6 Sangeeta v. Preston Gomes MAT.APP. 2010.

 18

In Aiyasabibi v. Subodh Chandra 49 CWN 43917 the court observed that in

cases involving conversion from one religion to another, the law applicable will be the
one after conversion.

In the case of Mst. Zohara Khatoon vs Mohd. Ibrahim AIR 1981 SC

18
1243 , has observed that divorce given unilaterally by the husband is
commonest form and is peculiar to Mohammadan Law, this form of talaq has to
be accepted as being legal. In the decided cases of Manzoor Ahmad Khan v.
Mst. Saja and ors (2003 (II) SLJ 619) 19; and Mst. Amina Banoo v. Abdul
Majid Ganai (2005 (I) SLJ 341)20 it was held that right of pronouncing divorce
has been absolutely bestowed upon the husband who can only pronounce the
Talaq in any form as Mohammadan law does not prescribe any particular form
for causing divorce.
The petitioner's divorce with the first husband was valid at the time of her
second marriage. The second marriage of the petitioner is valid as (i) the petitioner was
a divorcee at the time of the second marriage and (ii) they have fulfilled the conditions
for the same, as per the Hindu marriage Act 1955. Here both parties are Hindus
irrespective of their domicile or nationality and the marriage was solemnized in
accordance with the customary rites and ceremonies.

17 Aiyasabibi v. Subodh Chandra 49 CWN 439

1 8 Mst. Zohara Khatoon vs Mohd. Ibrahim AIR 1981 SC 1243

1 9 Manzoor Ahmad Khan v. Mst. Saja and ors (2003 (II) SLJ 619)

2 0 Mst. Amina Banoo v. Abdul Majid Ganai (2005 (I) SLJ 341)
 19

3. Whether the petitioner’s entitled to get both ancestral property and

self acquired property?
The divorce of the petitioner is a valid one. The petitioner being aware of
the divorce reconverted to Christianity. And later the petitioner married the
respondents father in London, in a religious ceremony according to Hindu rites
and at the time of marriage both of them were domiciled in India. Section 7(2) of
Hindu Marriage Act, Lays down that where the rites and ceremonies of marriage
are taken place the marriage becomes complete and binding. In Nirmala v
Rukmani, AIR 1994 36421 Cohabitation between the parties of sufficient
duration raises presumption of valid marriage. In Soham Singh v Kabla Singh,

2 1 Nirmala v Rukmani, AIR 1994 364

 20

AIR 1928 Lah 70622, it was held that no forms of ceremonies are required for a
valid marriage. In the instant case both petitioners’ mother and respondent’s
father married according to Hindu customs and henec it’s a valid one.
U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF
2008, (Arising out of SLP (C) No. 11785 OF 200723) Supreme Court of India
ruling Property inherited by a Hindu from his father, father’s father or father’s
fathers’ father, is ancestral property and their childrens are entitled to them.
Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 2024, it
was held that the share which a coparcener obtains on partition of ancestral
property is ancestral property as regards his male issue. They take an interest in
it by birth, whether they are in existence at the time of partition or are born
subsequently. Here both the petitioner and her deceased husband cohabitated for
a long period and a daughter were born to them. As the marriage was performed
according to Hindu rites there were no doubt that the marriage is a valid one and
the petitioners are legal wife and daughter of the deceased. in Bhaurao V.
State of Maharashtra AIR 1965 SC 156425 observed:- "Apart from these
considerations, there is nothing in the Hindu Law, as applicable to marriages till
the enactment of the Hindu Marriage Act, 1955, which made a second marriage
of a male Hindu, during the lifetime of his previous wife, void." if a second
marriage did take place, children born of such marriage, provided it was not
otherwise invalid, were not illegitimate and in the matter of inheritance, they had

2 2 Soham Singh v Kabla Singh, AIR 1928 Lah 706

2 3 U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346

OF 2008, (Arising out of SLP (C) No. 11785 OF 2007)

2 4 Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20

2 5 Bhaurao V. State of Maharashtra AIR 1965 SC 1564.

 21

equal rights. As the petitioner being the legitimate daughter she and her mother
is entitled to get her father’s both self-acquired property and ancestral property.

Conclusion

Hence from the above arguments, evidences adduced it has came into
conclusion that the marriage solmenized between the petitioner and her ex
husband Is valid and the divorce is valid. The second marriage of the petitioner
according to Hindu Marriage rites is valid and the peitioner being the legitimate
daughter of the deceased husband of second petitioner is entitled to both
ancestral and self acquired property.

PRAYER

In the light of the issues raised,arguments advanced and authority cited it

is humbly prayed that this honourable court may be pleased to adjudge hold and
 22

declare that the petitioner being the legitimate daughter, entitled to both self
acquired and ancestral property of respondent’s father.

QUESTION PRESENTED FOR RESPONDENT

1.Whether the divorce of petitioner is valid?

2.Whether the second marriage of the petitioner is valid?

3.Whether the petitioner’s entitled to get both ancestral property and self
acquired property?

SUMMARY OF ARGUMENTS

1. The divorce of the petitioner is not valid.

2. The second marriage of the petitioner, as per Hindu law is not valid.
3. The petitioners are not entitled to get ancestral property.
 23

1. Whether the divorce of petitioner valid?

The divorce of the petitioner is not valid. In Foolchand v Nazib (1909)

36 Cal 1846 it was held that although the presence of wife at the time of talaq is
not necessary, for the certain purposes communication of talaq is necessary.
Here in the instant case the petitioner’s former husband prounounced divorce in
her absence on August 2, 1974 and the petitioner came into understand about the
talaq only on September 1974. This shows the incombatability of talaq. Hence
the talaq is not valid. In modern times, many countries have imposed procedural
requirements designed to protect wives. It include production of a written notice
before talaq has to be pronounced and a copy of the dame should be given to the
wife, maximum efforts must be done by the officials to reunion the spouses etc.

6 Foolchand v Nazib (1909) 36 Cal 184

 24

Here the petitioner is of English citizen and she is governed according to

Domicile and Matrimonial Proceedings Act, 1973. In Le Mesuriar v. Le
Mesuriar, [1895-9] All ER Rep. 8367. In the case of Saleema Basha vs.
Mumtaz Begam,19 98 Cri. L.J. 47 828 as also to the decision of the Calcutta
High Court in the case of Ahmed Kasim Molla vs. Khatun Bibi, ILR 59 Cal
8339 and it was held that a Muslim husband cannot divorce his wife at his whim
and caprice and that the divorce must be for a reasonable cause and must be
preceded by attempts by arbiters nominated by the families of the parties and it
is only when such attempts fail, divorce can be effected. In Yousuf Rawther
vs. Sowramma AIR 19 71 Ker 26110 the honourable J.KrishnaIyer held that
"Since infallibility is not an attribute of the judiciary, the view has been ventured
by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic law of
divorce has not exactly been just to the Holy Prophet or the Holy Book. The
view that the Muslim husband enjoys an arbitrary, unilateral power to inflict
instant divorce does not accord with Islamic injunctions. “In the case of Saleem
Basha vs. Mumtaz Begam, 1998 Cri. L.J. 478211, wherein the learned Judge
considered the question as to whether talaq that had been pleaded in that case
was valid in Mohammedan law. After finding that no attempt at reconciliation
had preceded the triple talaq, such talaq having been pronounced after the wife
had brought a claim for maintenance, after quoting with approval the
observations of Justice Beharul Islam of the Gauhati High Court in the case of
Jiauddin Ahmed vs. Anwara Begum,(1981) 1 GLR 358 12, the learned Judge
held that divorce under Muslim law can be held to have been duly effected only
when it does not violate the injunctions of Quran . In the case of Fazlunbi vs.
K.Khader Vali, AIR 1980 SC 173013, the learned judges replete with quotes
from the Holy Quoran, has exposed the error of early English authors and

7 Le Mesuriar v. Le Mesuriar, [1895-9] All ER Rep. 836

8 Saleema Basha vs. Mumtaz Begam,19 98 Cri. L.J. 47 82

9 Ahmed Kasim Molla vs. Khatun Bibi, ILR 59 Cal 833

10 Yousuf Rawther vs. Sowramma AIR 19 71 Ker 261

11 Saleem Basha vs. Mumtaz Begam, 1998 Cri. L.J. 4782,

12 Jiauddin Ahmed vs. Anwara Begum,(1981) 1 GLR 358

13 Fazlunbi vs. K.Khader Vali, AIR 1980 SC 1730

 25

Judges, who dealt with talaq in Muslim law as good even if pronounced at whim
or in tantrum and argued against the diehard view of Batchelor, J., ILR (1906) 30
Bombay 537 (539), that this view is good in law, though bad in theology." In
A.S.Parveen Akthar vs The Union Of India14 on 27 December, 2002 (Madras
High court decision) it was held that triple talaq is invalid. It was held that
English courts have jurisdiction to entertain suits from parties domiciled in
England at the time of marriage.

Here the petitioner is domiciled in England at the time of marriage and

hence the act is applicable to the petitioner. Indian Divorce act primarily
concerns domicile as a main criteria and hence the petitioner divorce is not a
valid one. From the above judgments it is damn clear that triple talaq made by
the husband in the absence of wife is unenforceable and void and hence the
divorce of petitioner is void.

  2.  whether the second marriage of the petitioner is valid.

       The plaintiff had not come to the court with clean hands. According to
her, the marriage in England was under civil law of England.The marriage was
not dissolved in accordance with law and therefore, the plaintiff is not entitled
to any declaration.
It cannot be ignored that under the Mohammedan Law, the defendant wife
who was a christian,before her marriage, has no remedy to seek a matrimonial
relief for a foreign marriage which took place in the year 1966, as per the
provisions of the British Marriage Act, She has no remedy available under the
Mohammedan Law. So for as she concerned, the Law available is Foreign
14 A.S.Parveen Akthar vs The Union Of India
 26

Marriage Act.Once it is held that the marriage between her and her first
husband,solemnized in England,in1966 is governed by the Foreign Marriage
Act, then obviously it cannot stand dissolved by unilateral talak. Abdur Rahim
Undre v. Padma Abdur Rahim, AIR 1982 Bom10.
As already held in the present case the marriage took place in England on
1966. Therefore it was a foreign marriage within the the hearing of Foreign
marriage Act 1965 and governed by chapter IV of the foreign Marriage Act
1969. The lex domicile so far as secular marriage is concerned will be special
Marriage Act 1954 and not MohammedanLaw. It cannot be disputed that the
marriage which was solemnized as per the provision of the British Act in 1966,
in England, was secular in form and content and was a monogamous
marriage.On the date of the first marriage,the defendant was a hindu. No Indian
Law, till the Special Marriage Act 1974 was enacted, can apply to
Mohammedan marriage. It appears to be a used settled priciple of law that, in
the absence of anything to the contrary, the rights under the marriage are to be
governed by the law of domicili. In the present case; both the plaintiff and her
husband came to India in 1969. In relying upon the decision of the court in
Khambutta V Khambutta11, that so far as domicili is concerned, the present
marriage will be governed, by the personal law of the husband, viz.
Mohammedan law. However, this is not the correct position today. Once it is
held that the marriage which took place in England in 1966 was secular in the
form and content and also monogamous and such a secular law is also
available in India, in the form of special marriage Act, then even the lex
domicili incase of such secular marriage will be special marriage Act and not
the personal law of husband.
The crucial question to be examined here in is whether the petitioner
could successfully prove her conversion from Christianity to Hinduism so as to
lawfully marry the respondent according to the Hindu rites and ceremonies.
There is little or no assistance for proving the factum of conversion. In the case
of Skinner v Skinner 1897 ILR 25 Cal 537 12, the Privy Council, while
referring to the possibility that a change of religion on the part of both the
spouses might have the effect of altering rights incidental to the marriage was
careful to add the qualification that such change must be made honestly and
without any intent to commit a fraud upon the law.

10  Abdur Rahim Undre v. Padma Abdur Rahim, AIR 1982 Bom

11  Khambutta V Khambutta,
12 Skinner v Skinner 1897 ILR 25 Cal 537,
 27

In the case of a conversion, there should be a change of heart and honest

conviction in the tenets of the new religion in lieu of the tenets of the original
religion. If a ceremony of conversion is gone into conscientiously after such an
honest conviction, then alone there is a conversion of faith, or it can be said that
a person is professing another religion. In case of conversion from one religion
to another, strict proof is required and it cannot be easily inferred. Durga
Prasad Rao Vs. Sidar Sanaswami13
There is no record of conversion and the plaintiff has failed to prove the
same. Therefore, plaintiff's contention that the marriage was performed
according to Hindu rites cannot be proved.

Here in the instant case from the facts it has came to understand that there
was no actual Hindu Marriage Act and hence the marriage is not valid. In
Laxman Singh v Keshar Bai, AIR 1966 MP 166 and Surjit v Gajra , AIR
1994 SC 13514, no contract of marriage can come into existence without the
performance of the necessary ceremonies, it is obivious that a marriage without
requisite ceremonies is null and void. In Dr. A.N.Mukherji v State, AIR 1969
All 48915, it has been held that proof of due performance of necessary
ceremonies of marriage is essential for the prosecution for bigamy. Here there
was no evidence regarding the conuct of marriage between Emily and Jamini
Rai. In Rajathi v Seilliah, (1966) 2 MLJ 4016, it was held that no one can
innovate new ceremonies and a marriage performed with the innovated
ceremonies rites is invalid. In Shahji v Gopinath AIR 1995 Mad 161 17, mere
registration is no proof of marriage.
The divorce is not valid. The marriage between Emily and Jamini Rai is
not valid one and hence the contention that her marriage, as per the Hindu
Marriage Act 1955, is valid cannot stand as she is illegitimate wife of Jamini
Rai.

1 3 Durga Prasad Rao Vs. Sidar Sanaswami

1 4 Laxman Singh v Keshar Bai, AIR 1966 MP 166 and Surjit v Gajra , AIR 1994 SC 135

1 5 Dr. A.N.Mukherji v State, AIR 1969 All 489

1 6 Rajathi v Seilliah, (1966) 2 MLJ 40

1 7 Shahji v Gopinath AIR 1995 Mad 161

 28

3. Whether the petitioner is entitled to get ancestral property?

Ancestral property means Property inherited by a Hindu from his father,

father’s father or father’s fathers’ father. is ancestral property.
[U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF
200818, (Arising out of SLP (C) No. 11785 OF 2007) Supreme Court of India
ruling].

18 U.R.Virupakshaiah vs Sarvamma & Anr, CIVIL APPEAL NO. 7346 OF

2008
 29

In Mulla’s Principles of Hindu Law (15th Edition), it is stated at page

289 : if A inherits property, whether movable or immovable, from his father or
father’s father, or father’s father’s father, it is ancestral property as regards his
male issue. If A has no son, son’s son, or son’s son’s son in existence at the time
when he inherits the property, he holds the property as absolute owner thereof,
and he can deal with it as he pleases. A person inheriting property from his three
immediate paternal ancestors holds it, and must hold it, in coparcenary with his
sons, sons’ sons and sons’ sons’ sons’ but as regards other relations he holds it
and is entitled to hold it, as his absolute property.” Smt. Dipo vs Wassan Singh
& Others, 1983 AIR 846, 1983 SCR (3) 20] 19 Again at page 291, it is
stated :“The share which a coparcener obtains on partition of ancestral property
is ancestral property as regards his male issue. They take an interest in it by
birth, whether they are in existence at the time of partition or are born
subsequently. Such share, however, is ancestral property only as regards his male
issue. As regards other relations, it is separate property, and if the coparcener
dies without leaving male issue, it passes to his heirs by succession.” [Smt. Dipo
vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20] the Hon’ble
Supreme Court observed that “Ancestral property means, as regards sons,
property inherited from a direct male lenial ancestor, and as regards collaterals
property inherited from a common ancestor “.[Maktul vs Mst. Manbhari &
Others, 1958 AIR 918, 1959 SCR 109920]
Here in the instant case the petitioner Emiley married the respondents
father at the time her first marriage was persisiting. Hence triple talaq is not
valid, her first marriage is still alive and hence the second marriage is polygamy
which is not permitted unde Hindu Marriage Act, 1955.

19 Smt. Dipo vs Wassan Singh & Others, 1983 AIR 846, 1983 SCR (3) 20]
2 0 Maktul vs Mst. Manbhari & Others, 1958 AIR 918, 1959 SCR 1099]
 30

Honourable Supreme Court in many judgements held that Childs born of

void or voidable marriage is not entitled to claim inheritance in ancestral
copercenary property but is entitled only to claim share in self-acquired
properties. In Kenchegowda v/s K.B. Krishnappa, (2 February, 2008)21, it has
been held that “No child, whether legitimate or illegitimate, acquires any right
by birth in the separate or the self-acquired property of its parents. In the instant
case the the petitioner was the illegitimate child of respondent ‘s father. The
divorce of the peitioner was not valid as it was not done according to the
Domicile and Matrimonial Proceedings Act, 1973 and hence it is void. The
divorce being void, the marriage solemnized between petitioner and respondents
father is not a valid one. The Madras high Court in T. Ramayammal vs.
T.Mathummal AIR 1974 (Madras) 32122, which was a decision rendered prior
to the amendment of section 16, laid down that unless a decree of nullity was
granted in respect of a marriage which was void, the legitimacy of the children
born of such Marriage would not be protected. In this case there was no
evidence regarding the marriage that have taken place between Emile and
respondent's father and hence the peititoner is not the legitimate daughter and
not entitiled to get share of ancestral property. Jinia Keotin & Ors vs Kumar
Sitaram Manjhi & Ors on 20 December, 2002 23, in the S.C. decision it was
held that the illegitimate children are not entitled to get share in ancestral
property.

21 Kenchegowda v/s K.B. Krishnappa, (2 February, 2008),

22 T. Ramayammal vs. T.Mathummal AIR 1974 (Madras) 321

2 3 Jinia Keotin & Ors vs Kumar Sitaram Manjhi & Ors on 20 December,
2002
 31

Hence the petitioner is the illegitimate child of respondent's father and

hence the petitioner has no right to get the ancestral property of respondent's
father. The petitioner is entitled to only the self acquired property of her father.
 32

Conclusion

Hence from the above arguments and evidences adduced, the petitioner is not the
legitimate daughter of the respondents’ father and hence entitled to get a share in
the self acquired property only.

PRAYER

In the light of the issues raised,arguments advanced and authority cited it

is humbly prayed that this honourable court may be pleased to adjudge hold and
declare that the petitioner being the illegitimate daughter, entitled to get a share
in the self acquired property only.