Judgment:
P.C. Pathak, J.
1. The petitioner has filed this petition for issuance a writ of habeans corpus under Article 226 of the Constitution of India against the respondents on the allegations that Smt. Kamal Jeet Kaur & Amreen Begum is his legally married wife and is being illegally detained by respondent No. 1, her father, with a view to settle her marriage at some other place. It is also alleged that she is being tortured and is being threatened to divorce the petitioner and to undergo an abortion.
2. The petitioner is a Mahomeden by birth. Kamal Jeet Kaur, aged about 25 years, is a Punjabi Hindu girl and daughter of respondent No. 1. The petitioner alleges that she became a Mahomeden by conversion and changed her Hindu name to a Muslim name, viz. Amreen Begum. On 7.7.1990, the petitioner married her at Sagar. The marriage was performed by Mufti of Sagar. Quazi Hafiz Mohammad issued a certificate of marriage (Annexure A). Thereafter, they lived for some days at Sagar and also performed marital obligations. The petitioner further submits that he and his wife filed an application duly signed by both of them, before the City Magistrate, Sagar, for performance of special morning. Meanwhile she was arrested by Sagar Police and was produced before the City Magistrate, who handed over her to respondent No. 1 on 16.10. 1990. The respondent No. 1 brought her to Jabalpur and is residing with him since then. The petitioner went to bring his wife to the house of the respondent No. 1 but was turned out and the reatened to be killed. The petitioner also alleges that she is pergnant. Respondent No. 1 and the female members of his family are trying for the abortion. The respondent No. 1 intends to perform her marriage at some other place. The respondent No. 1 is Dy. S.P. at Jabalpur and is trying to involve the petitioner falsely in some criminal case Under Section 363, IPC, registered by police station Ranjhi. The petitioner, therefore, obtained order of anticipatory bail from the Court of V Additional Sessions Judge on 26.11.1990, vide (Annexure-B) The petitioner prays for a direction to the respondent No. 1 to set Amreen Begum to liberty immediately and her restoration to his custody.
3. Respondent No. 1 filed return denying the allegations of conversion to Muslim religion, or the adoption of Muslim name or the performance of marriage with the petitioner by Qaazi of Sagar. The also denies that both lived as husband and wife at Sagar. He, however, admits that the petitioner and Kamal Jeet Kaur jointly filed an application for performance of marriage under the Special Marriage Act. On 23.12 1990, she filed another application Annexure-1, to the District Magistrate, with drawing her consent for marriage with the petitioner. He denies that Kamal Jeet Kaur is illegally detained. According to him, before 25th June, 1990, the petitioner abducted her and remained untraceable for quite some time. He lodged a report in police station Ranjhi, Jabalpur and the police registered an offence under Sections 363 and 366, IPC against the petitioner which is still under investigation. Kamal Jeet Kaur is not the lawfully wedded wife of the petitioner and as such he is not entitled to any relief.
4. The question for decision is whether the petitioner married Ku. Kamal Jeet Kaur on 7th July, 1990. The petitioner's case is that she converted herself to Mahomedenism and adopted a Muslim name Amreen Begum. The marriage was performed by Mufti of Sagar on 7th July, 1990. The certificate to that effect issued by Quazi Hafiz Mohammad Hamid is Annexure-A. All these allegations have been denied by the responedent No. 1. The petitioner has not filed any proof of conversion, and the marriage between the two. The certificate shows that the alleged marriage was performed in presence of witnesses; Syed Wahid Ali, Advocate, Issar Ahmed Quresi and Mustak Ali. All of Sagar. But the petitioner has not filed affidavits of any of these persons. The petitioner also did not file the affidavit of Mufti who allegedly performed the marriage of the two. Thus, we are left with the petitioner's statement on oath and denied by respondent No. 1 on oath.
5. Learned Counsel for the petitioner laid great stress on marriage certificate, Annexure-A. We enquired from the learned Counsel for the petitioner, whether the certificate has any statutory sanctity or otherwise admissible as an conclusive proof of marriage of the persons named therein. He did not bring to our notice any legal provision under which the certificate is issued nor did he point out any provision in the Evidence Act for treating it as a conclusive evidence. With the scanty materials placed before us, it is not possible to record a finding that the petitioner married Ku. Kamal Jeet Kaur on 7.7.1990.
6. The petitioner's assertion of marriage having taken place on 7.7.1990 is contradicted by his own admissions viz. that he filed an application before the City Magistrate for performance of special marriage. The respondent No. 1 has also admitted that such an application was made but later her consent was withdrawn by moving an application before the District Magistrate on 23.12 1990, vide Annexure-1. The scheme of Special Marriage Act is two folded. Chapter II starting from Section 4 deals with solemnization of special marriages while Chapter III starting from Section 15, provides for registration of marriages celebrated in other forms. It is a common case of both the parties that an application was made before the City Magistrate for performance of the marriage. In other words, both the parties to the application were not married till that date. Both the parties wrongly described that they made an 'application for solemnization' of the marriage. Section 5 provides that when a marriage is intended to be solemnized under this Act the parties to the marriage shall give 'notice' thereof in writing in the prescribed form to the Marriage Officer of the district, in which at least one of the parties to the marriage as resided for a period of not less than 30 days immediately preceding the date of which notice is given Section 4 provides the conditions relating to solemnization of special marriages. Among others, neither parties should have a spouse living. The prescribed form of the notice requires the parties to be either unmarried or a widower or a divorce. The form prescribed under Section 11 requires declaration to be made by bride-groom and the other by the bridge that he or she, as the case may be, was unmarried on the date of the declaration.
7. The learned Counsel for the petitioner submitted that his client was ill-advised to give notice of the intended marriage to the Marriage Officer and this may be due to ignorence of law. We are not prepared to accept that he was ignorent of the legal provisions. In the marriage certificate one of the witnesses is Syed Wahid Ali Sahab Advocate, Gopalganj, Sagar. This shows that he was already in touch and had the benefit of the advice from an advocate. It must have been under some legal advice that the petitioner and Kamal Jeet Kaur gave notice of intended marriage to the Marriage Officer, Sagar.
8. As seen above, the Act also provides for registration of marriages celebrated in other forms. The relevant provision is Section 15 and the procedure for marriage registration is Section 16. Thus, it is clear that the parties had already been married on 7.7.1990, they would have resorted to Section 15 for registration of their marriage. The very fact that gave notice of intended marriage under Section 5 of the Act, clearly shows that no marriage had taken place before that date between the parties. Respondent No. 1 has filed copy of the application Annexure-1 which shows that she withdraw her consent for the marriage. The petitioner has not submitted any counter to this plea in defence. Recently the Supreme Court also held that one of the spouses has a right to withdraw consent in the petition for divorce by mutual consent. This we have learnt only from newspapers and the decision is not yet reported in any law journal. Once the consent was withdrawn by Ku. Kamal Jeet Kaur, the notice of intended marriage became infructuous and accordingly rejected. The petitioner did not dispute this factual aspect.
9. In view of the foregoing discussions, we held that the petitioner failed to prove that he is the legally married husband of Kumari Kamal Jeet Kaur. He also failed to substantiate that she is illegally detained.
10. The petitions fails and is hereby dismissed. There shall be no order as to costs.