Jharkhand High Court
Md. Shabbir Ansari vs Sultana @ Afsana Begum on 4 March, 2020
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(CIVIL APPELLATE JURISDICTION)
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First Appeal No. 164 of 2016 ......
Md. Shabbir Ansari ...... Appellant
Versus
Sultana @ Afsana Begum ..... Respondent
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PRESENT:
HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellant : Mr. Ashok Kr. Sinha-4, Advocate
For the Respondent : Mr. Praveen Kumar, Advocate
.......
By Court: Heard, learned counsel for the parties.
2. Husband is the appellant whose Matrimonial Suit No.492 of 2013 instituted for dissolution of marriage by decree of divorce against his wife-respondent herein stood dismissed by impugned judgment dated 26.07.2016 and decree dated 05.08.2016 on the ground of maintainability. Learned Principal Judge after discussing the case of the parties held as under:-
"3. Heard there are two questions now in this case, firstly whether an application for divorce is maintainable by Muslim husband and secondly if divorce has been granted whether present suit is maintainable for divorce or not. Coming into the second question first, it is apparent that since divorce has already been granted as stated by the applicant and without entering into the legality of the customary Talak as alleged by the applicant, the applicant now does not have any subsisting cause of action in view of his own admission that he has already given Talak. In that view of the matter, the present suit is not maintainable. It is reiterated that the court is not entering into the domain of legality and validity of the Talak.
4. Now coming on to the question as to whether a Muslim husband can institute a suit for divorce. On perusal of the Mulla's Commentary on Muslim Law Under Para 307 there is mention that Muslim marriage can be dissolved by a decree of divorce on an application by husband or wife, but apart that no ground for dissolution of marriage by Muslim husband has been given in the said commentary on Muslim Law. Further when the Muslim husband is competent to give Talak of his own as per their Personal Law which does not provide for any recourse to the court of law for the purpose of grant of Talak. I do not find any reason as to how and why a suit by Muslim husband for dissolution of marriage by Talak or for a decree of divorce is maintainable, and therefore, this court holds that the suit in its present form by the present applicant for decree of divorce was also not maintainable.
It is therefore, dismissed."-2-
3. Learned counsel for the appellant has assailed the impugned findings on the question of maintainability of the suit for dissolution of marriage by Muslim- Husband/appellant.
4. Learned counsel for the respondent-wife submits that Muslim- Husband does not have recourse to dissolution of marriage through court under Section 307 of the Mohammedan Law. Learned Family Court has dealt with both the questions with proper legal reason which does not suffer from any flaw.
5. We have also perused the impugned judgment and the relevant pleadings on record. Though the learned counsel for the appellant submits that the petitioner had moved for dissolution of marriage under Section 307(3) of the Mohammedan Law but it seems that during course of the proceedings he produced a talaknama. The plaint however, does not contain averment that talak had already been given and he was only seeking its confirmation. However, learned Family Court has dealt with both the questions and answered it accordingly.
6. We do not find any error in the impugned judgment for the reason that the suit for divorce on the part of the husband invoking para 307(3) of the Mohammedan Law is not supported by any specific grounds for divorce under the Chapter-XVI of the Mohammedan Law, whereas the wife can seek dissolution of marriage on various grounds of divorce available under this Chapter-XVI. In that way, the suit for dissolution of marriage was not maintainable as there was no grounds available for the appellant. On the other hand, if the petitioner produced a talaknama during proceedings of the Matrimonial Suit to show that divorce has already been granted, no such prayer for confirmation of the divorce was made in the Matrimonial Suit. On both counts the reasoning of the learned Family Court, therefore, does not suffer from any error of law or on facts.
7. For the reasons as discussed above, the appeal being devoid of merit is dismissed. Decree accordingly.
(Aparesh Kumar Singh, J.) (Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 04.03.2020 sandeep/R.S.