Marriage Can't Be Dissolved By Way Of Affidavit Made Before Notary: Gauhati High Court

The Gauhati High Court has held that a marriage cannot be dissolved by way of an affidavit made before a Notary, and that in the absence of any material showing invocation of the Dissolution of Muslim Marriages Act, 1939, a claim of divorce based merely on a notarised affidavit cannot be accepted.

Setting aside the Family Court's maintenance order, the Court found that the Respondent's earlier marriage had not been shown to be lawfully dissolved.

Justice Pranjal Das, presiding over the case, observed, “Needless to say that a marriage cannot be dissolved by way of an affidavit made before the Notary. There is also no material to indicate that the respondent invoked the provisions of - Dissolution of Muslim Marriages Act, 1939 - for dissolving her marital tie with the said Manik Ali. Rather, she has mentioned about dissolving her marital tie with Manik Ali from her side and in support of the same, merely stated about submitting a copy of the affidavit, while retaining the original.”

The Court further recorded, “Thus, the earlier marriage of the respondent with Manik Ali is an admitted position. However, during the proceeding before the learned Court below, the respondent could not adduce sufficient evidence in support, to show that the said marriage with Manik Ali has been lawfully dissolved and that she is no longer his legally wedded wife.”

The above ruling was passed in a criminal revision petition which arose from an order of the Principal Judge, Family Court, Barpeta, directing the husband to pay Rs. 3,000 per month as maintenance to his wife.

The respondent-wife had approached the Family Court under Section 125 CrPC claiming maintenance on the assertion that she had married the petitioner under Islamic law, had lived with him, and was later driven out after alleged torture and monetary demands. The petitioner disputed the marital relationship and contended that the respondent had an earlier marriage which had not been lawfully dissolved.

While examining the evidence, the High Court noted that the respondent herself admitted in cross-examination that she had married the petitioner in 2000 and had three children from that marriage, and further stated that he did not divorce her, but that she had given divorce to him in 2017.

Although both sides referred to a photocopy of an affidavit mentioning divorce, the Court found that the document was not even exhibited during the proceeding.

The Court clarified that merely referring to such an affidavit would not confer any marital status, “Reference to the affidavit in her cross-examination and about submitting a copy of the affidavit in the maintenance proceeding - would not constitute sufficient proof of dissolution of her earlier marriage - so as to confer any status of wife of the present petitioner, even if it is accepted that she had married the present petitioner. In any case, as already stated, any such affidavit sworn by the respondent before Notary Public would not constitute legally acceptable dissolution of the marriage.”

Thus, the Court concluded, “Perhaps the learned Family Court erred in overlooking this aspect of the matter and in accepting the marital status of the respondent, as wife of the petitioner.”

The Court held that the wife could not have claimed maintenance from the petitioner husband as his legally wedded wife and therefore, she cannot be granted maintenance from his side.

Accordingly, the impugned judgment and order passed by the Principal Judge, Family Court was set aside and quashed, and the revision petition was allowed and disposed of.

LL Citation:

Case Title: Tufazzul Hussain v. Fulmala Khatun

Case No.: Crl.Rev.P./212/2025

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