MP High Court Slams Family Court For Declaring Divorce Between Muslim Couple Without Framing Issues And Recording Evidence

The Madhya Pradesh High Court has expressed surprise and shock at a Family Court order declaring divorce of a Muslim woman from her husband without framing issues and recording the evidence.The division bench of Justice Vivek Rusia and Justice Binod Kumar Dwivedi observed; "We are surprise and shocked the way the Family Court has taken the matter under Order VII Rule 11 of CPC and gave a relief to respondent / plaintiff (husband), which was liable to be given only after framing issue and recording the evidence. The purpose of filing of the suit has been served by getting a declaration of divorce, therefore, even after dismissal of the suit, the respondent / husband has not come in the appeal to get the decree of divorce. This order is unsustainable in law and is accordingly quashed". The marriage between the couple was solemnised in 1976, according to Muslim rituals and customs. During the subsistence of this marriage, the husband (respondent) performed a second marriage in 1987. Subsequently, he filed a suit seeking divorce from the first wife (appellant) on the ground that he had sent notice of divorce to the appellant. After receiving notice, the appellant appeared before the Family Court. The family court, suo motu, took the suit on May 2, 2023, under Order VII Rule 11 of CPC, which deals with the grounds for rejection of the plaint. The Family Court noted that although the notice of divorce was not received by the appellant, she now had the information of the same with the plaint, and therefore, the divorce had come into effect. The Family Court further dismissed the suit as the marriage already stood dissolved by way of divorce, not to be taken from the Court.Aggrieved by these findings, the wife filed an appeal challenging the declaration of divorce at the instance of the husband. The division bench noted that following this declaration, the husband began treating the appellant as a divorced woman and filed an application before his department to change her nomination as wife in his service records. Expressing 'surprise and shock' over the Family Court's approach, the bench noted that the husband was granted relief without framing the issues and recording the evidence. The bench emphasized that the purpose of filing the suit was served by getting a declaration of divorce, and therefore, even after dismissal of the suit, the husband did not file an appeal to get the divorce decree. "This order is unsustainable in law and is accordingly quashed. The respondent cannot be permitted to take undue advantage of appearance of the wife in the Court and receiving the copy of plaint. Had she not appeared apprehending receiving the notice of divorce she would have been proceeded ex parte. The unjust benefit has been given by the learned Judge to the respondent husband by treating the notice of divorced as served", the court added. Consequently, the bench quashed the Family Court's order and restored the husband's suit while directing the parties to appear before the Family Court, for further proceedings. Case Title: I v HK [FA-1389-2023]Citation: 2025 LiveLaw (MP) 236For Appellant: Advocate Rizwan NizamFor Respondent: Advocate Padmnabh SaxenaClick here to read/download the Order

MP High Court Slams Family Court For Declaring Divorce Between Muslim Couple Without Framing Issues And Recording Evidence

Jayanti Pahwa

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