5 Aug 2018 6:11 AM GMT
The Bombay High Court has recently held that a civil court can grant reliefs like maintenance, return of meher and right to matrimonial property in divorce proceedings under the Dissolution of Muslim Marriages Act, 1939.Justice Shalini Phansalkar Joshi dismissed the second appeal filed by a 46-year-old businessman from Navi Mumbai. The appellant had raised a question of law—whether in a...
The Bombay High Court has recently held that a civil court can grant reliefs like maintenance, return of meher and right to matrimonial property in divorce proceedings under the Dissolution of Muslim Marriages Act, 1939.
Justice Shalini Phansalkar Joshi dismissed the second appeal filed by a 46-year-old businessman from Navi Mumbai. The appellant had raised a question of law—whether in a suit filed under Section 2 of the Dissolution of Muslim Marriages Act, 1939, the civil court was competent to grant the relief of maintenance and the relief in respect of matrimonial property of the spouses, for which other statutory enactments and other forums are available.
A civil suit was filed by the respondent wife under Section 2 of the Dissolution of Muslim Marriages Act seeking divorce on grounds of cruelty. In the suit, she has claimed the return of 'meher amount', the maintenance for her two minor children and half share in the flat jointly owned by her and the appellant.
The said suit was contested by the appellant-husband on merits. Thereafter, the trial court granted the decree for dissolution of marriage and also for the return of meher amount of Rs.51,000, maintenance at the rate of Rs. 15,000 every month each to the two minor children and 50 percent of the share in the jointly-owned flat of the parties. The trial court further directed that either parties can give the other 50 per cent of the market value of the said flat or by appointment of Court Commissioner, the flat may be sold and the sale proceeds be divided equally.
The appellant filed his first appeal against the decree before the district judge who dismissed the appeal and confirmed the trial court’s decree. Then the second appeal was filed by the appellant.
Submissions and Judgment
The court acknowledged the fact the second appeal contains contentions that were not raised earlier before any forum and the second appeal was being heard because of it.
Appellant’s lawyer Javed Hussein submitted that the Dissolution of Muslim Marriages Act is a very short piece of legislation with only five sections. He further submitted that the Act is conspicuously silent on the rights of the married Muslim woman towards the meher, maintenance or the matrimonial property. Hussein argued that in such a situation, the respondent cannot claim other reliefs like maintenance, meher or share in jointly owned property under Section 2 of the Act, nor are the civil courts competent to grant such rights or reliefs to her.
Hussein placed reliance on a few judgments of the apex court to illustrate how the civil court exceeded its jurisdiction in granting such reliefs to the respondent wife.
Saeed Akhtar appeared on behalf of the respondent wife. He relied on the decision of a full bench of the high court in Jagdish Balwantrao Abhyankar & Others v State of Maharashtra & Others, to submit that if the relief is claimed under wrong provision, it is within the power of the court to grant relief by disregarding the 'nomenclature' or the 'label' to ensure that the right of the party is not lost.
According to Hussein, it is not a case at all, that the civil court has no jurisdiction over the subject matter of the dispute. The entitlement of the respondent to those reliefs is recognized under other statutes.
“In such situation, there was nothing wrong, much less illegal, if the trial Court has exercised the jurisdiction available to it and granted the relief in the suit. Merely because the suit was labeled to be filed under Section 2 of the Act, does not take out the power or jurisdiction of the Court to grant such reliefs; especially when at the very first opportunity, the Appellant has not taken any such objection,” Hussein argued.
After hearing both parties, the court concluded:
“Having given my anxious consideration to the rival submissions advanced by learned counsel for the parties, I find much substance in the submissions advanced by learned counsel for the Respondent.”
Justice Joshi supported the judgment of the full bench of the high court cited by Hussein and observed-
“While deciding any litigation, the Court has to consider entire case in its proper perspective, including the pleadings, the points argued, the reliefs claimed, everything. The Court is never expected to be guided by mere “nomenclature” or “label” of the plaint.”
With regard to the question of jurisdiction of civil courts, Justice Joshi held that in the affirmative and said: “Most important factor which is required to be considered is that the law always expects that all the disputes between the parties should be decided in one forum and in one proceeding, so as to avoid the multiplicity of proceedings and the waste of time, energy and money of the parties in prosecuting the remedies in different forums. The right of maintenance and right in the matrimonial property are the consequences of the marriage or its dissolution. Those reliefs are incidental to the main relief of 'dissolution of marriage' and therefore, these reliefs are very much integral part of decree of 'dissolution of marriage'.”
The court also held that the said matrimonial property was jointly owned by the respondent wife along with her husband, thus, she had an inherent right to the same.
Thus, the second appeal was dismissed.