Allahabad HC Sets Aside Divorce Granted Under Non-Existent Law; Pulls Up Family Court For 'Casual' Approach

The Allahabad High Court recently set aside a divorce decree granted by a Family Court in Banda, noting that the judgment relied upon a statute ['Muslim Women Marriage Dissolution Act, 1986'] that does not actually exist. A bench of Justice Atul Sreedharan and Justice Vivek Saran also took exception to the concerned Judicial Officer, who holds the rank of a Senior District Judge, for being 'casual' while writing the judgment in question. Briefly put, the husband-appellant moved the High Court to challenge the Family Court's January 2026 order granting the respondent-wife a divorce. The appellant's counsel mainly pointed out a glaring discrepancy on the part of the Trial Court in entertaining the wife's plaint, which was erroneously filed under the provisions of the Muslim Women Marriage Dissolution Act, 1986. In Hindi, it was written as “मुस्लिम स्त्री विवाह विच्छेद अधिनियम, 1986”, which is a law that does not exist. The bench noted that the plaint apparently sought to refer to the Muslim Women (Protection of Rights on Divorce Act), 1986. However, since the wife sought a divorce, the bench noted that she ought to have invoked the provisions of the Dissolution of Muslim Marriages Act, 1939 [मुस्लिम विवाह विघटन अधिनियम, 1939]. The bench clarified that a mere reference of a wrong provision or a wrong act in a plaint does not by itself render a final judgment invalid as long as the Trial Court had the authority under an existing law and that existing law is correctly mentioned in the judgment. However, in the present case, the bench noted that after giving the cause title, the Trial Court itself repeatedly referred to the non-existing law, i.e., the Muslim Women Marriage Dissolution Act, 1986 [मुस्लिम स्त्री विवाह विच्छेद अधिनियम, 1986], throughout its order. Though the bench sensed that what perhaps the Trial Court intended was to refer to the Dissolution of Muslim Marriages Act, 1939, it found it to be "most unfortunate" that the judge ultimately held that the case of the respondent-wife was liable to be allowed in part as per the relevant provisions of the said non-existing law. Taking strong exception to the same, the bench observed that repeatedly referring to a statute that does not exist and holding the respondent-wife eligible for partial relief under it rendered the judgment bad in law and fact. "It is for the Court to ensure that the statute referred to by it actually exists, merely an error in the plaint or the proceedings does not justify the learned Trial Court repeating the same error in the final judgment. Had the error been typographical error in an innocuous place of the order, the same could have been ignored by this Court", the bench remarked. Under these circumstances, the impugned order was set aside and the matter was remanded to the Family Court to pass a judgment afresh, giving the correct provisions of law. While allowing the appeal, the Court clarified that it is not directing a de novo trial and that while passing the final judgment, the Family Court may rely upon the material and evidence already available on record, unless it is of the firm opinion that additional evidence requires to be adduced. The Family Court has been requested to pass the final order within a period of three months. With the above, the appeal was allowed.Case title - Hafij vs Parveen Khatoon 2026 LiveLaw (AB) 258Case Citation: 2026 LiveLaw (AB) 258Click Here To Read/Download Order

Allahabad HC Sets Aside Divorce Granted Under Non-Existent Law; Pulls Up Family Court For 'Casual' Approach

Sparsh Upadhyay

This is a premium content
Available exclusively to
Our subscribers

INR 1099+GST

Tags

Allahabad HC Sets Aside Divorce Granted Under Non-Existent Law; Pulls Up Family Court For 'Casual' Approach

Sparsh Upadhyay

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

This is a premium content
Available exclusively to
Our subscribers