Chattisgarh High Court
Smt. Syeda Tabassum vs Sheikh Javed on 2 July, 2025
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2025:CGHC:29847
SMT NAFR
NIRMALA
RAO
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 619 of 2021
1 - Smt. Syeda Tabassum W/o Shri Sheikh Javed, D/o Mohd. Naseem, Aged About 29
Years Caste Muslim, R/o Ward No. 12, Ketka Road, Manpur, Surajpur, District Surajpur
Chhattisgarh, District : Surajpur, Chhattisgarh
... Petitioner(s)
versus
1 - Sheikh Javed S/o Shri Sheikh Nizamuddin, Aged About 36 Years Caste Muslim, R/o
Shiv Mandir Ward, Near Dr. Soni Clinic, Jagdalpur, District Bastar Chhattisgarh, District
: Bastar(Jagdalpur), Chhattisgarh. ... Respondent(s)
(Cause Title is taken from Case Information System)
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For Petitioner : Mr. Surfaraj Khan, Advocate. For Respondent : Mr. Sunil Verma, Advocate
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Hon’ble Shri Justice Rakesh Mohan Pandey
Order on Board
02.07.2025
1) The present petition has been filed by the petitioner (wife) challenging the entire
proceedings (Annexure P/1) initiated by the learned Judge, Family Court,
Jagdalpur, District Bastar (C.G.) in Civil Suit No. 69A/2021 (Sheikh Javed v.
Smt. Syeda Tabassum).
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2) Mr. Surfaraj Khan, learned counsel appearing for the petitioner would submit that
petitioner and respondent were married on 31.10.2019 as per Muslim rites. It is
submitted that the wife/petitioner was subjected to cruelty, domestic violence, and
dowry demands by the husband, which led to her being driven out of the marital
home. It is further submitted that despite efforts from family and society to
reconcile, the husband continued mistreating her and questioning her character. It
also argued that on 10.06.2021, the husband filed a suit for restitution of conjugal
rights before the learned Family Court, Jagdalpur, District Bastar, which was
registered as Civil Suit No. 69-A/2021.
Learned counsel argues that the petitioner filed this writ petition on the ground
that restitution of conjugal rights is not recognized under Muslim law and that the
learned trial court has no jurisdiction. It is argued that the said Court is not
empowered under the provisions of law to entertain the suit for restitution of
conjugal rights in the absence of any provision in this regard. He would further
submit that the proceedings are illegal and void-ab-initio, and the same may be
quashed.
3) On the other hand, Mr. Sunil Verma, learned counsel appearing for the respondent
would oppose the submissions made by learned counsel for the petitioner and submit
that according to the provisions of Section 281 of Mulla’s Principles of
Mohammedan Law, a husband can sue his wife for the restitution of conjugal rights
if she has withdrawn from cohabitation without a lawful cause, as a marriage is
considered a civil contract, and the suit enforces the right to consortium. He would
also submit that the Family Courts Act, 1984, empowers family courts to deal with
matters related to restitution of conjugal rights, including cases involving Muslim
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personal law, as the Act’s jurisdiction extends to all communities, including Muslims.
In support thereof, he placed reliance on the judgment passed by the High Court of
Tripura in the matter of MD Deepraj Sarkar son of Md. Mia Sarkar v. Tahima
Aktar wife of Md. Deepraj Sarkar reported in 2024 LawSuit (TR) 317 and prayed
that the instant writ petition may be dismissed.
4) Heard learned counsel for the parties and perused the documents placed on the
file.
5) The High Court of Tripura in the matter of MD Deepraj Sarkar son of Md. Mia
Sarkar (supra), has held that from a perusal of the Statement of Objects and Reasons
of the Family Courts Act, 1984, it is evident that the Act confers exclusive
jurisdiction upon Family Courts to adjudicate matters relating to matrimonial relief,
including nullity of marriage, judicial separation, divorce, restitution of conjugal
rights, and declarations concerning the matrimonial status of any person. The
relevant para- 14 to 18 are reproduced as under:-
“14. For proper adjudication of the matter, let us produce Section
281 of the Mulla Principles of the Mohammedan Law:-
” 281- Suit for restitution of conjugal rights (1)
Where a wife without lawful cause ceases to
cohabit with her husband, the husband may sue the
wife for restitution of conjugal rights.”
15. Further, the following sections and the objects and reasons
provided in the Family Courts Act, 1984, which are relevant to
the facts of this case, are as follows:-
” State of objects and Reasons.-
………………………………..(d).exclusively provide within the
jurisdiction of the family Courts the matters relating to:-
(i) matrimonial relief, including nullity of marriage,
judicial separation, divorce, restitution of conjugal rights,
-4-or declaration as to the validity of a marriage or as to the
matrimonial status of any person;
(ii) the property of the spouses or of either of them;
iii) declaration as to the legitimacy of any person;
(iv) guardianship of a person or the custody of any minor;
(v) maintenance, including proceedings under Chapter IX
of the Code of Criminal Procedure;”
1. Short, title extent and commencement-(1) This Act may
be called the Family Courts Act, 1984.
(2) It extends to the whole of India.
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, 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;”
16. Having heard the arguments and perused the record, this
Court finds that the order of the trial court dismissing the suit on
the ground of non-maintainability due to the parties being
governed by Mohammedan law is not sustainable in law. The trial
Court observed that since the parties belonged to the
Mohammedan community, their personal law would govern the
matter. As such, the suit for restitution of conjugal rights was
deemed non-maintainable. The Court believed that it lacked
jurisdiction, stating that passing a judgment would amount to
-5-“transgressing the limits of its jurisdiction.” However, The Family
Courts Act, 1984, was enacted to establish specialized Courts to
deal with matrimonial and family-related disputes. Section 7 of
the Act clearly vests jurisdiction in Family Courts over suits
related to matrimonial relief, including restitution of conjugal
rights, nullity of marriage, judicial separation, divorce, and other
related matters, regardless of the personal law governing the
parties. The mere fact that the parties belong to the Mohammedan
community does not oust the jurisdiction of the Family Court.
Section 7 of the Family Courts Act, 1984, read with the
Explanation, makes it abundantly clear that Family Courts have
exclusive jurisdiction to entertain and decide matrimonial
disputes, including those related to the restitution of conjugal
rights. That unless by way of any expressed provision a person or
community or religion is exempted by the law, it is reasonably
presumed that law applicable to the law of the land is binding
upon all citizens. Section 7(1)(a) of the Family Courts Act, states
that “a Family Court shall have and exercise all the jurisdiction
exercisable by any district court or any subordinate civil court
under any law”. Accordingly, Section 7(1)(a) of the ‘Act’ clearly
indicates that the law of the land which is unless expressly
prohibited, shall be dealt by the Courts.
17. In view of the Statement of Objects and Reasons of the Family
Courts Act, 1984, it is evident that the Act confers exclusive
jurisdiction upon Family Courts to adjudicate matters relating to
matrimonial relief, including nullity of marriage, judicial
separation, divorce, restitution of conjugal rights, and
declarations concerning the matrimonial status of any person.
Therefore, the lower Court’s dismissal of the suit was contrary to
the express jurisdictional mandate of the Family Courts Act,
1984, which clearly provides for the exclusive jurisdiction of
Family Courts over matters such as matrimonial relief, property
disputes, legitimacy, guardianship, custody, and maintenance, and
applies uniformly across all communities, including Muslims. The
Act does not exclude any community from its purview, and as
such, the suit was maintainable under the Act.
18. The provision in Section 1(2) of the Family Courts Act, 1984,
stating that the Act “extends to the whole of India,” ensures that
the Act applies uniformly across all regions and communities.
This means that matrimonial disputes, regardless of the personal
law governing the parties, are to be adjudicated by Family Courts
according to the Act’s procedural framework.”
6) In the present case, the marriage between the petitioner and respondent was
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solemnized on 31.10.2019; on 10.06.2021, the husband filed a suit for restitution
of conjugal rights before the learned Family Court, Jagdalpur, District Bastar; the
same was registered as Civil Suit No. 69-A/2021; the present writ petition has
been filed primarily on the ground that restitution of conjugal rights is not
recognized under Muslim law and that the learned Court below has had no
jurisdiction to entertain that suit.
7) Taking into consideration the fact that the Family Courts Act, 1984, confers
exclusive jurisdiction upon Family Courts to adjudicate matrimonial matters,
including nullity of marriage, judicial separation, divorce, restitution of conjugal
rights, and declarations concerning matrimonial status; further, Section 1(2) of the
Act, extends its applicability to the whole of India, ensures uniform enforcement
across all regions and communities; it establishes that every matrimonial dispute,
irrespective of the personal law governing the parties, must be adjudicated by
Family Courts in accordance with the procedural framework prescribed by the
Act; the Mohammedan Law by Mulla also recognizes the suit for restitution of
conjugal rights; also the High Court of Tripura has laid down the law that a
petition for restitution of conjugal rights is maintainable before the Family Court,
in the considered and firm opinion of this Court, no case is made out for
interference. Accordingly, this petition fails and is hereby dismissed. No cost(s).
8) Interim relief granted earlier is hereby vacated.
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi