Madhya Pradesh High Court
Mohammad Shah vs Smt Chandani Begum on 7 January, 2025
Author: Anand Pathak
Bench: Anand Pathak, Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
FIRST APPEAL NO. 1199 of 2022
MOHAMMAD SHAH
Vs.
SMT. CHANDANI BEGUM
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APPEARANCE:
Shri F.A. Shah - Advocate for the appellant.
Shri Nitin Agrawal - Advocate for the respondent.
JUDGMENT
{Delivered on 7th the Day of January, 2025 }
Per: Justice Anand Pathak
1. The instant first appeal under Section 19 of the Family Court Act,
1984 is preferred by the appellant being crestfallen by the order
dated 18-05-2022 passed by the Principal Judge, Family Court,
Datia whereby the suit for divorce preferred by the appellant has
been dismissed on the ground of maintainability.
2. Precisely stated facts of the case are that marriage of appellant and
respondent was solemnized on 19-10-2007 through Muslim rites
and rituals. Out of the wedlock, couple was blessed with four
children namely, Chahat Bano, Gudiya Bano, Kousar Bano and one
son namely Sonu. Domestic incompatibility existed between the
couple continued between the parties despite lapse of sufficient time
2
and even after blessed with four children. Since respondent/wife of
appellant was of modern outlook lady since beginning and as
alleged she had close relationship with one of her relatives namely
Sharafat Shah who used to visit regularly the house of appellant,
thereafter this was one of the reasons of domestic unrest.
3. On 17-01-2016 when appellant was out of his house, respondent
eloped with the said person Sharafat Shah along with son Sonu and
took Rs.1,85,000/- in cash as well as jewelry. Since then appellant is
taking care of three daughters and respondent is living in adultery
with Sharafat Shah. Out of the wedlock of respondent and Sharafat
Shah, a child was born on 04-04-2017 at Shri Research Center and
Hospital, Kanpur Road, Jhansi (U.P.). Therefore, appellant filed the
case for divorce however same was dismissed on the ground of
maintainability. According to trial Court, suit at the instance of a
party seeking divorce under Muslim law is not maintainable.
Therefore, challenging that order, present appeal is preferred.
4. Learned counsel for the appellant submits that the Family Court
erred in dismissing the suit of divorce suit preferred by the
appellant. The suit for divorce was very much maintainable in view
of Section 7 of the Family Courts Act, 1984 (hereinafter referred to
as “the Act of 1984”) as this provision deals with the jurisdiction of
a Family Court and in the explanation clause, the nature of
proceedings are classified. Section 7(1)(d) of the Act of 1984
provides that a suit or proceeding for an order and injunction in
circumstances arising out of a marital relationship can be heard by
the Family Court.
5. It is further submitted that rule 9 of the High Court of Madhya
Pradesh Family Court Rules, 1988 (hereinafter referred to as “the
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Rules of 1988″) provides power to the High Court to issue
instruction in relation to registration of fresh suits or proceedings
regarding suits or proceedings arising out of personal law applicable
to muslims including the Muslim Personal Law (Shariat)
Application Act, 1937 (hereinafter referred to as “the Shariat Act“)
and Dissolution of Muslim Marriages Act, 1939 (hereinafter
referred to as “the Act of 1939”). Thus, there is ample power
entrusted upon the Family Court by the statutes to entertain the
application for divorce of a muslim male.
6. According to learned counsel for the appellant, Section 2 of the
Shariat Act covers all the aspect of the life of a Muslim male
through the procedure established by law including dissolution of
marriage by Talaq, Ila, Zihar, Lian, Khula and Mubaraat. Thus, the
grave illegality is committed by the Family Court in not deciding the
divorce application of the appellant. Section 2 of the Act of 1939
also provides a procedure for dissolution of marriage through
judicial process providing several grounds to a muslim male. Thus,
prayed for setting aside the impugned order passed by the Family
Court.
7. Learned counsel for the respondent opposed the submissions raised
by learned counsel for the appellant. He supported the impugned
order passed by the Family Court, Datia and submitted that once the
statute does not provide any mechanism for dissolution of marriage
of a muslim male, then no direction in that regard can be issued by
the Court. Thus, prayed for dismissal of this appeal.
8. Heard learned counsel for the parties at length and perused the
documents appended thereto.
9. This is a case where a muslim male has sought dissolution of
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marriage. As per Section 2 of the Act of 1939 a woman married
under Muslim Law shall be entitled to obtain a decree for the
dissolution of her marriage on any ground as enumerated in Section
2 of the Act of 1939. Here, it appears from perusal of the provisions
as contained into the Act of 1939 that a male does not have any way
to obtain the decree for dissolution of marriage. For that purpose,
one has to take recourse to the Act of 1984. Section 7 of the Act of
1984 is worth reproduction in this regard:
“7. Jurisdiction.- (1) Subject to the other provisions of this
Act, a Family Court shall-
(a) have and exercise all the jurisdiction exercisable by any
district court or any subordinate civil court under any law
for the time being in force in respect of suits and
proceedings of the nature referred to in the Explanation;
and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or, as the
case may be, such subordinate civil court for the area to
which the jurisdiction of the Family Court extends.
Explanation.- The suits and proceedings referred to in this
sub-section are suits and proceedings of the following
nature, namely:-
(a) a suit or proceeding between the parties to a marriage
for a decree of nullity of marriage (declaring the marriage
to be null and void or, as the case may be, annulling the
marriage) or restitution of conjugal rights or judicial
separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity
5of a marriage or as to the matrimonial status of any
person;
(c) a suit or proceeding between the parties to a marriage
with respect to the property of the parties or of either of
them;
(d) a suit or proceeding for an order or injunction in
circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the
legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of
the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family
Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First
Class under Chapter IX (relating to order for maintenance
of wife, children and parents) of the Code of Criminal
Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any
other enactment.”
10. Section 7 of the Act of 1984 falls under Chapter III which
contemplates jurisdiction. Section 7(1)(Explanation)(d) of Act of
1984 contemplates that a suit proceeding which can be entertained
by Family Court if the said suit or proceeding is for an order or
injunction in circumstances arising out of a marital relationship.
Since this provision does not distinguish on the basis of Caste and
Community, therefore, it is all pervasive in nature. It is in line with
the object of the Act of 1984 which reads as under:
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“An Act to provide for the establishment of Family
Courts with a view to promote conciliation in, and secure
speedy settlement of disputes relating to marriage and
family affairs and for matters connected therewith.”
11. Therefore, one has to take cue from the Act of 1984 and then has to
look into the High Court of Madhya Pradesh Family Court Rules,
1988 (hereinafter referred to as “the Rule of 1988”) in which rule 9
is produced for ready reference:
9. Registration of fresh Suites or proceedings.- (1)The
High Court may in relation to any fresh suit or fresh
proceeding issue instructions in writing to Family Courts
for registration of fresh suit or fresh proceeding.
(2) In particular and without prejudice to the generality of
the foregoing power, the instructions to be issued by the
High Court, may provide for inclusion for the purposes of
the registration of suits or any proceedings of the nature
referred to in Explanation to Sub-Section (1) of Section 7
of the Act and instituted or taken before a Family Court
with reference to related provisions contained in
following laws as amended from time to time viz.:-
(i) proceeding under chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974);
(ii) suit or proceeding under the Hindu Marriage
Act,1955 (25 of 1955):
(iii) suit or proceeding relating to maintenance under the
Hindu Adoptions and Maintenance Act, 1956 (78 of
1956):
(iv) Suit or proceedings in relation to the Guardianship
7of the persons or the custody of or access to any minor
under the Hindu Minority and Guardianship Act, 1956
(32 of 1956)
(v) proceedings under Dowry Prohibition Act, 1961 (28
of 1961), for an order for injunction in circumstances
arising out of marital relationship.
(vi) proceedings in relation to Hindu Marriage
(Validation of Proceedings) Act, 1960 (19 of 1960);
(vii) suits or proceedings arising out of personal law
applicable to muslims including:
(a) Muslim Personal Law (Shariat) Application
Act, 1937 (26 of 1937)
(b) Dissolution of Muslim Marriages Act, 1939 (8
of 1939)
(viii) suites or proceedings under the Parsi Marriage and
Divorce Act, 1936 (3 of 1936), which can be instituted or
taken out before the Parsi District Matrimonial Courts
constituted under Sections (18 and 20) of the said Act;
(ix) suits or proceedings under the Indian Christian
Marriage Act, 1872 (15 of 1872)
(x) suits or proceedings under the Special Marriage Act,
1954 (43 of 1954)
(xi) proceedings under the child Marriage Restraint Act,
1929 (19 of 1954).
(xii) proceedings in relation to Anand Marriage Act,
1909 (7 of 1909)
(xiii) proceedings in relation to Arya Marriage Validation
Act, 1937 (19 of 1937).
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(xiv) suits or proceedings arising out of Foreign
Marriage Act, 1969 (19 of 1937).
(xv) suits or proceedings relating to the part B States
Marriages Validating Act, 1952 (1 of 1952)
(xvi) suit or proceedings relating to the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (25 of 1986)
(xvii) suits or proceedings under the Guardians and
Wards Act 1890 (8 of 1890).
(xviii) suits or proceedings relating to the Hindu
Marriages (Validation of Proceedings) Act, 1960 (19 of
1960).
12. Rule 9(2)(vii) is framed in respect of suit or proceeding arising out
of personal law applicable to Muslim including the Shariat Act and
the Act of 1939. Perusal of these Acts and rules reveals that so far as
Shariat Act is concerned for realization of the issue (like divorce in
the present case) has to be regulated through procedure and
procedure as prescribed in the Act of 1984 as well as High Court of
Madhya Pradesh Family Court Rules. Therefore, the procedure
established by law is clear that a Muslim male can sue a suit or
proceeding for dissolution of marriage on the grounds as available
to him.
13. Earlier the Division Bench of this Court in the case of Aqeel Ahmed
(Khan) Vs. Smt. Farzana Khatun in First Appeal No.1017 of
2022 vide order dated 14-10-2022 considered this aspect and
relying upon the order dated 30-03-2021 passed by the Division
Bench of Madras High Court in C.M.A. No.2192 of 2017 (Settu
Vs. Reshma Sulthana) considered the question of maintainability
as well as settlement reached between the parties and allowed the
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appeal preferred by the parties on the basis of settlement reached
between them. Therefore, it can be held that parties have additional
forum of this Court also to get the decree for divorce/dissolution of
marriage.
14. Even the Constitutional Morality and its Spirit also mandates that no
person can be rendered remediless. If the reasoning of trial Court
would have been accepted then a muslim male would have been
denied the valuable right to access justice or judicial forum to
ventilate his grievances. This could never have been the
Constitutional spirit, morality and Constitutional Vision of Justice.
15. Therefore, in the considered opinion of this Court, trial Court erred
in rejecting the application for dissolution of marriage on the ground
of maintainability. Accordingly, the impugned judgment passed by
the Family Court is here by set aside and matter is remanded back to
the Family Court for adjudication.
16. At the time of arguments, learned counsel for the appellant informs
this Court that Rs.25,000/- was given to the respondent/wife and
respondent/wife initially agreed to settle the matter and for giving
divorce because she is living with some other person but later on
she rescinded. If she is willing to give divorce then petitioner can
move an appropriate application before the trial Court.
17. Since in the matter, judgment of the Family Court has already been
set aside, therefore, parties are at liberty to appear before the trial
Court because proceedings are found to be maintainable for
dissolution of marriage. Parties are at liberty to move an appropriate
application for dissolution of marriage and settlement before the
trial Court.
18. Appeal stands disposed of in above terms.
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19. Copy of this order be circulated to all the Civil Courts/Family
Courts through Registrar General of this Court.
(ANAND PATHAK) (HIRDESH)
Anil* JUDGE JUDGE
ANIL KUMAR
CHAURASIYA
2025.01.08
14:29:02 +05'30'