Civil Judge Can't Authenticate Talaq, Grant Decree Dissolving Muslim Marriage; Family Court Is Competent Forum: Gauhati High Court

The Gauhati High Court has held that civil judge does not have the jurisdiction to authenticate dissolution of a Muslim marriage in the form of talaq and grant a declaratory decree of divorce and the competent court would be the Family Court or the District Court in the absence of family court.In doing so the high court upheld an order of Civil Judge (senior division) which had dismissed order passed by the appellate court–Civil Judge (junior division), which had granted a declaratory relief to a man in the form of talaq along with a decree for confirmation of written divorce in a matrimonial suit. Against the appellate court's order the husband had moved the high court. Justice Mitali Thakuria held:"It is a settled law that the family disputes, the dissolution of marriage, decree of divorce under the Hindu Marriage Act or the Special Marriage Act can only be entertained by the Family Court under Sections 7 & 8 of the Family Courts Act, 1984 and in absence of the Family Court, the District Court can examine the matters. It is also rightly observed by the learned Appellate Court that in view of Section 2(4) of the Code of Civil Procedure, 1908, read with Sections 3/17 of General Clauses Act, 1897, the “District Court” with family jurisdiction would be a Principal Civil Court of original jurisdiction i.e. the learned District"The court said that in the present case the appellant-husband had claimed that he had not sought for any decree of divorce or talaq, before the Court of Civil Judge (Jr. Div.). It was the further claimed by the appellant that on three subsequent date i.e. on 12.11.2023, 17.12.2023 and 30.01.2024, the appellant had already given written talaq to the respondent wife and even after service of those three notices, the respondent did not return to her matrimonial house and thus the talaq is complete within the meaning of talaq-e-hasan. "But it is seen that while passing the impugned judgment and decree, the learned Civil Judge (Jr. Div.), Hailakandi had passed the decree that the marriage between the parties stands dissolved in the form of talaq and the written divorce/talaq, executed by the plaintiff on 12.11.2023, 17.12.2023 and 30.01.2024, was also confirmed. Thus it is seen that though it is submitted by Mr. Quadir, the learned counsel for the appellant that it was merely a declaratory suit in regards to the talaq given by the plaintiff but it is seen that the learned trial Court below had already dissolved the marriage between the parties in the form of talaq and thus it is seen that in the garb of declaration of valid talaq, the learned Civil Judge (Jr. Div.), Hailakandi had authenticated the talaq given by the appellant husband to the respondent wife," the court addedThe high court ruled that this was not a case where a "simple declaration" is sought for any legal character under Section 34 of the Specific Relief Act, but a case wherein in "the name of declaratory suit" the plaintiff-appellant was seeking a divorce decree which is authenticated by the Court of learned Civil Judge (Junior Division) under his seal and signature. "It is a settled principle that in absence of the Family Court in the District, the only competent authority to deal with such matrimonial matter is by the District Judge or the Civil Court. But the learned Civil Judge (Jr. Div.), Hailakandi had no such authority or power to pass any decree of divorce/talaq," the high court said. The high court said that the appellate court i.e. Civil Judge Senior Division did not commit any error or mistake while disposing the appeal on the point of jurisdiction with a further direction to the parties to approach the appropriate forum, seeking any relief of divorce/talaq. Further, the high court said that the appellate Court had rightly observed that the decree passed by the learned Civil Judge (Jr. Div.), can be considered as a nullity due to lack of jurisdiction and hence, the question of discussion on merit on the other issues are also does not arise.The court thus dismissed the appeal. Case title: X v/s YCase No. : RSA/131/2025 Click Here To Read/Download Order

Civil Judge Can't Authenticate Talaq, Grant Decree Dissolving Muslim Marriage; Family Court Is Competent Forum: Gauhati High Court

LIVELAW NEWS NETWORK

Tags