Smt. Rasna Vs. Arun

Smt. Rasna vs Arun

Disposition Petition allowed Court Madhya Pradesh Decided Aug 27, 1996

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Citation: sooperkanoon.com/508524
Court: Madhya Pradesh High Court
Judge: S.C. Pandey, J.
Decided On: Aug 27, 1996
Case Number: C.R. No. 1924 of 1995
Subject: Family
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 147; [A.K. Patnaik, CJ, S.S. Jha & A.M. Sapre, JJ] Liability of Insurer - Third party insurance Held, The insured who is a party to the insurance is not a third party for the purpose of Chapter XI of the Act, particularly Section 147 thereof. Thus, any person ot...

Key legal issue: Family
Outcome / disposition: Petition allowed
Acts & sections: Hindu Marriage Act, 1955 - Sections 13(1)

Parties & Advocates

Appellant / Petitioner

Smt. Rasna

Advocate Prashant Mishra, Adv.

Respondent

Arun

Advocate Anjali Banerjee, Adv.

Legal References

Acts: Hindu Marriage Act, 1955 - Sections 13(1)
Cases Referred: Vilayat Rai v. Smt. Sunila
Reported In: I(1997)DMC580

Excerpt

.....the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha &..........at raigarh. it was also alleged by the non-applicant that he became muslim at bilaspuro on9.11.1993 and changed his name as anwar. on this ground alone it was pleaded that since the non-applicant ceased to be a hindu, he is entitled to divorce under section 13 of the hindu marriage act (hereinafter referred to as 'the act', for short).3. the applicant, after service of notice upon her, raised an objection under order vii rule 11 read with section 151 of the code of civil procedure to the effect that no cause of action subsists in favour of the non-applicant to obtain a decree of divorce.4. i have heard learned counsel for both the parties. the argument of the learned counsel for the applicant is that the non-applicant, who has converted himself in to a muslim, cannot file an application for divorce under section 13(1)(ii) of the act. he strongly relied on the decision of the supreme court in the case of smt. sarla mudgal and ors. v. union of india and ors., reported in air 1995 sc 1531=ii (1995) dmc 351 (sc). on the other hand, learned counsel for the non-applicant, relying on a decision of delhi high court in the case of vilayat rai v. smt. sunila, reported in air 1983 delhi 351, argued that such a course may be adopted by either of the parties.5. having heard learned counsel for both the parties, this court is of the view that the plain language of section 13(1)(ii) of 'the act' itself shows that only one of the parties can be aggrieved by the conversion of a hindu into another religion and one of the parties who ceased to be hindu by conversion cannot file a petition for divorce under section 13(1)(ii) of 'the act'. it is very clear from the wordings of section 13(1)(ii) of 'the act' that-'13(1). any marriage solemnized, whether before or after the commencement of this act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has after the solemnization of the marriage,.....

Full Judgment

S.C. Pandey, J.

1. This petition is directed against the order dated 2.8.1995 whereby the application filed by the applicant under Order VII Rule 11 of the Code of Civil Procedure has been dismissed by the Trial Court.

2. In this case, the non-applicant filed an application for divorce stating that the non-applicant and the applicant were married on 8.5.1988 according to the Hindu Baidya Community at Raigarh. It was also alleged by the non-applicant that he became Muslim at Bilaspuro on9.11.1993 and changed his name as Anwar. On this ground alone it was pleaded that since the non-applicant ceased to be a Hindu, he is entitled to divorce under Section 13 of the Hindu Marriage Act (hereinafter referred to as 'the Act', for short).

3. The applicant, after service of notice upon her, raised an objection under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure to the effect that no cause of action subsists in favour of the non-applicant to obtain a decree of divorce.

4. I have heard learned Counsel for both the parties. The argument of the learned Counsel for the applicant is that the non-applicant, who has converted himself in to a Muslim, cannot file an application for divorce under Section 13(1)(ii) of the Act. He strongly relied on the decision of the Supreme Court in the case of Smt. Sarla Mudgal and Ors. v. Union of India and Ors., reported in AIR 1995 SC 1531=II (1995) DMC 351 (SC). On the other hand, learned Counsel for the non-applicant, relying on a decision of Delhi High Court in the case of Vilayat Rai v. Smt. Sunila, reported in AIR 1983 Delhi 351, argued that such a course may be adopted by either of the parties.

5. Having heard learned Counsel for both the parties, this Court is of the view that the plain language of Section 13(1)(ii) of 'the Act' itself shows that only one of the parties can be aggrieved by the conversion of a Hindu into another religion and one of the parties who ceased to be Hindu by conversion cannot file a petition for divorce Under Section 13(1)(ii) of 'the Act'. It is very clear from the wordings of Section 13(1)(ii) of 'the Act' that-

'13(1). Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has after the solemnization of the marriage, .......

(ii) has ceased to be a Hindu by conversion to another religion.............'

This ground can only be claimed by another party and not by the party who himself converted into another religion. This Court is supported in its view by Smt. Saria Mudgal's case, reported in AIR 1995 SC 1531 (supra), in which it has been held that:

'14. It is, thus, obvious from the catena of case-law that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses covers and the other refuses to do so. Whether a marriage takes place under Hindu Law the parties acquire a status and certain rights by the marriage itself under the law governing the Hindu marriage and if one of the parties is allowed to dissolve by 'adopting and enforcing a new personal law, it would tantamount to destroying the existing rights of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to its condification in 1955, a Hindu marriage continued to subsist even after one of the spouses converted to slam. There was no automatic dissolution of the marriage.

15. The position has not changed after coming into force of the Hindu Marriage Act, 1955 (the Act) rather it has become worse for the apostate. The Act applies to Hindus by religion in any of its forms or developments. It also applies to Buddhists, Jains and Sikhs. It has no application to Muslims, Christians and Parsees. Section 4 of the Act is as under :

'Overriding effect of Act-Save as otherwise expressly provided in this Act-

(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.

(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.'

16. A marriage solemnized whether before or after the commencement of the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13(1)(ii), is that 'the other party has ceased to be a Hindu by conversion to another religion'. Sections 11 and 15 of the Act is as under-

'Void marriages.-Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in Clauses (i),(iv) and (v) of section.'

'Divorced persons when may marry again.-When a marriage has been dissolved by a decree of divorce and either there is no right of or, if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.'

6. In view of this legal position, the revision succeeds and is allowed; and the application filed by the non-applicant before the Trial Court under Section 13(1)(ii) of the Hindu Marriage Act is rejected. There shall be no order as to costs.

Same Court & Year Madhya Pradesh · 1996 Same Parties Smt. Rasna vs Arun Same Subject Family Same Judge S.C. Pandey, J. Acts & Sections Hindu Marriage Act, 1955 - Sections 13(1)

Family