Tuesday, 16 July 2019

Whether suit for dissolution of marriage filed by muslim husband is maintainable?

Despite indulgence granted, the learned counsel for the appellant has not been able to show any other provision of law or judgment on the point where such a suit for dissolution of marriage on the part of the Muslim husband under Mohammedan Law is maintainable.

7. Learned counsel for the respondent-wife argued in support of the view taken by the learned Family Court. He submits that none of the provisions under Mohammedan Law permits the husband to obtain the decree of divorce through a judicial declaration. However, other forms of divorce are available to the husband to be exercised, as per the condition stipulated thereunder. Learned Family Court has rightly held that the instant suit is not maintainable.

IN THE HIGH COURT OF JHARKHAND

F.A. No. 187 of 2016

Decided On: 18.06.2018

 Md. Yusuf Vs.  Nasreen Begum

Hon'ble Judges/Coram:
Aparesh Kumar Singh and Ratnaker Bhengra, JJ.

Citation: AIR 2019 Jharkhand  39


1. Heard learned counsel for the parties.

2. Husband is aggrieved by dismissal of his Matrimonial Suit No. 262 of 2010 seeking divorce against his wife, respondent herein, under Section 307(3) of the Mohammedan Law vide judgment dated 10.08.2016 and decree dated 30.08.2016 by the learned Principal Judge, Family Court, East Singhbhum at Jamshedpur. The suit was dismissed on the ground of maintainability by the learned Family Court holding that under Chapter-16 of the Mulla's Commentary on Mohammedan Law, Muslim husband does not have right to approach the Court for a judicial divorce.

3. Background of the case of the parties is being referred to hereinafter to appreciate the issue at hand.

Petitioner-husband/appellant herein asserted through his plaint that his marriage with the respondent was solemnized on 20.02.1990 as per Muslim Law and Muslim rituals. After the marriage, they lived together at Jamshedpur in their matrimonial home, Qr. No. L1/3, Mohini Road, Sakchi, which was allotted to him. But, thereafter, she brought her mother and mother's mother to live with him and they started meeting out cruelty and created troubles in his matrimonial life. A daughter and two sons were born out of their wedlock on 12.04.1991, 10.12.1992 and 25.03.1998. Matrimonial life between the parties was never good. She used to demand entire salary of the applicant and it led to conflict between the spouses. He had purchased a piece of land in the name of the respondent, however, at the instigation of her mother and grandmother, it was sold out. Cases were filed against him and he was sent to jail for about one month. He was ousted from his own quarter as he was not allowed to enter his quarter after coming out from custody on being enlarged on bail. He was admitted in TMH on 25.03.2009 and was operated by a Doctor. Even during that period respondent did not come to see him, as a result of which, relationship between the spouses became very bad. Therefore, prayer for grant of decree of divorce was made.

Respondent-wife through her written statement denied the entire allegation. She admitted the marriage and children born out of the wedlock and alleged that applicant used to torture her due to non-fulfilment of demand of dowry. She also denied the allegations against her grandmother, who was a bed ridden patient. She had instituted a case for maintenance as her husband refused to maintain her and her children. He had taken help of gangster friend in committing various forms of cruelty on her. She took the plea of maintainability of suit under the Mohammedan Law.

Two issues were framed on the basis of rival pleadings of the parties, which are as under:

A. Is the suit as framed maintainable?

B. Whether the applicant is entitled to a decree of divorce?

On behalf of applicant, Md. Yusuf examined himself as witness and supported his case and has reiterated the statement made in the plaint. He deposed during cross-examination that he was employed in Tata Steel as a labourer. He was matriculate. He had instituted Eviction Suit bearing No. 73/11 for eviction of his wife from the house allotted to him He admitted that a case under Section 498-A of the IPC was instituted against him. Cross-examination was made in respect of the acts of his friend Ismail Azad. His salary certificate was exhibited as Ext. B. He reiterated the acts of cruelty meted out to him, during his cross-examination. His mother, who is other witness, reiterated the statement made in his plaint as well as in his evidence. She stated that parties are not living together since more than 10 years and she could not remember the cases where she had deposed as a witness. She could not say when her son was admitted in hospital and when he was discharged.

Respondent-wife examined herself as witness and supported her contention as made in the written statement. During her cross-examination, she accepted institution of various cases and that she had given evidence in different cases instituted at her instance. She also deposed about the marriage of her daughter in her cross-examination. She further alleged that a friend of her husband in collusion with her husband tried to commit rape on her, which led to institution of a case. She had also filed a case under Section 498-A of the IPC where her children are witnesses. She admitted that her husband was taken into custody for about 15-20 days. She said that she had attended her husband in the hospital in the year 2008. She denied to have kept any tenant in the quarter.

4. Learned Family Court discussed the provisions of Mohammedan Law under Chapter-16 of the Mulla's Commentary. It also referred to the provision of Section 307(3) of the Mohammedan Law, which provides that the contract of marriage under Mohammedan Law may be dissolved by judicial decree at the suit of the husband or wife. On this contention, raised by the petitioner-husband, learned Trial Court dealt with the relevant provisions under Part A, B and C of Chapter-16 whereunder divorce can be granted by the spouses. Relevant findings of the learned Trial Court on the instant issue are being quoted hereinbelow:

"10. Heard the parties and perused the record. Chapter-16 of the Mulla's Commentary on Mohammedan Law is divided into three parts i.e. Part A, B and C. First part relates to divorce by husband and it mentioned that when divorce proceeds from husband it is called 'Talak" and when it is effected by mutual consent it is called as "Khula" or "Mubarrat". Paras 308-316 deals with different forms of Talak and in none of these provisions there is a mandate to go for a decree of divorce by the husband. Thereafter, paras 317, 318 deals with certain species of constructive divorce where on account of certain acts of the husband some right is created with the wife to obtain a decree of divorce. Here also husband does not have right to approach the court for a judicial divorce. Paras 319 and 320 deals with "Khulla" and 321 and 322 are also modes of separation, but not judicial divorce. The second part i.e. Part-B relates to judicial divorce at suit of a wife and Part-C deals with consequences/affects of divorce, hence under the whole Chapter of divorce at Chapter 16 there is no provision to show that Muslim husband is entitled to approach the court for a decree of divorce."
5. Even though the learned counsel for the appellant has again harped on the same provision under Chapter-16 of the Mohammedan Law to bring home the point that Muslim husband is also entitled to seek divorce through a judicial decree as per Section 307(3) but in none of the subsequent Sections provided in paragraphs 308-316, dealing with the different forms of Talak, husband has been given a mandate to go for a decree of divorce. On the contrary, provision under Section 323 under Part-B refers to the various grounds available to Muslim woman for seeking dissolution of marriage through a suit: (1) the whereabouts of the husband are unknown for a period of four years (Section 324); (2) failure of the husband to provide for the maintenance of the wife for a period of two years (Section 325); (3) sentence of imprisonment on husband for a period of seven years (Section 326); (4) failure without reasonable cause to perform marital obligations (Section 327); (5) impotence of husband (Section 328); (6) insanity of husband (Section 329); (7) repudiation of marriage by wife (Sections 330 and 273); (8) cruelty of husband (Section 331); and (9) any other grounds recognized by Muslim law (Section 332).

First Part-A relates to divorce by husband and when divorce proceeds from husband it is called "Talak" and when it is effected by mutual consent it is called as "Khula" or "Mubarrat". Sections 308 to 316 deal with different forms of Talak by the husband.

6. Despite indulgence granted, the learned counsel for the appellant has not been able to show any other provision of law or judgment on the point where such a suit for dissolution of marriage on the part of the Muslim husband under Mohammedan Law is maintainable.

7. Learned counsel for the respondent-wife argued in support of the view taken by the learned Family Court. He submits that none of the provisions under Mohammedan Law permits the husband to obtain the decree of divorce through a judicial declaration. However, other forms of divorce are available to the husband to be exercised, as per the condition stipulated thereunder. Learned Family Court has rightly held that the instant suit is not maintainable.

8. We have considered the submissions of the learned counsel for the parties, gone through the impugned judgment and the relevant provisions of law relied upon by them, as discussed hereinabove. We find that the appellant has not been able to dislodge the findings of the learned Family Court on the plea of maintainability by citing any precedent on the subject or any other provision of law, apart from those referred above, which could sustain the maintainability of the suit for divorce on the part of the husband.

9. We, therefore, do not find any ground to interfere with the findings in the impugned judgment. Accordingly, present appeal is dismissed.


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