Md. Monawar Alam vs Arshi Begum @ Mrs. Arshi Begam
2021 Latest Caselaw 4404 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        First Appeal No. 36 of 2021
     Md. Monawar Alam                                      --- --- Appellant
                                      Versus
     Arshi Begum @ Mrs. Arshi Begam                        --- --- Respondent
                                      .......

CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant : Mr. Tejo Mistry, Advocate For the Respondent :

05/25.11.2021 Heard learned counsel for the appellant Mr. Tejo Mistry.

2. Appellant is the husband whose suit for dissolution of marriage with the respondent wife under relevant provisions of the Mohammedan Law has been dismissed by the judgment dated 15.06.2021 passed in Original Suit No. 67 of 2021 by the court of learned Principal Judge, Family Court, Jamshedpur. The learned Family Court, Jamshedpur after consideration of the provisions of Mohammedan Laws governing the case of the parties came to a conclusion that the suit for divorce filed on the part of the husband is not maintainable. It also took note of decision of the Division Bench of this Court dated 18.06.2018 passed in F.A. No. 187 of 2016 ( Md. Yusuf Vrs. Nasreen Begum) in which one of us (Aparesh Kumar Singh, J.) was the member.

3. Learned counsel for the appellant has not been able to dislodge the findings rendered by the learned Family Court on the specific grounds that none of the provisions under the Mohammedan Law permits the husband to obtain a decree of divorce through a judicial declaration, though other forms of divorce are available to the husband to be exercised as per the conditions stipulated thereunder.

4. We have considered submissions of learned counsel for the appellant and gone through the impugned judgment. The learned Family Court, Jamshedpur has while considering the prayer of the appellant husband for divorce through a piece of declaration took into account the provisions of Mohammedan Law. The learned Family Court has also relied upon the decision of this Court rendered in the case of Md. Yusuf (supra), which squarely deals with the present situation also. In the case of Md. Yusuf also the appellant husband was aggrieved by the dismissal of the matrimonial suit seeking divorce against the respondent wife under Section 307(3) of the Mohammedan Law. The suit was dismissed on the ground of maintainability by the learned Family Court holding that under Chapter-16 of the Mulla's Commentary on Mohammedan

Law, Muslim husband does not have right to approach the Court for a judicial divorce. This Court upon consideration of rival submissions of the parties and the provisions of the Mohammedan Law as under Chapter-16 of the Mulla's Commentary held that the suit for divorce on the part of the husband was not maintainable under the provisions of the Mohammedan Law. For better appreciation, the relevant extract of the judgment in the case Md. Yusuf (supra) is quoted hereunder:

4. Learned Family Court discussed the provisions of Mohammedan Law under Chapter-16 of the Mulla's Commentary. It also referred to the provision of Section 307(3) of the Mohammedan Law, which provides that the contract of marriage under Mohammedan Law may be dissolved by judicial decree at the suit of the husband or wife. On this contention, raised by the petitioner-husband, learned Trial Court dealt with the relevant provisions under Part A, B and C of Chapter-16 whereunder divorce can be granted by the spouses. Relevant findings of the learned Trial Court on the instant issue are being quoted hereinbelow:

"10. Heard the parties and perused the record. Chapter- 16 of the Mulla's Commentary on Mohammedan Law is divided into three parts i.e. Part A, B and C. First part relates to divorce by husband and it mentioned that when divorce proceeds from husband it is called "Talak" and when it is effected by mutual consent it is called as "Khula" or "Mubarrat". Para 308-316 deals with different forms of Talak and in none of these provisions there is a mandate to go for a decree of divorce by the husband. Thereafter, 317, 318 deals with certain species of constructive divorce where on account of certain acts of the husband some right is created with the wife to obtain a decree of divorce. Here also husband does not have right to approach the court for a judicial divorce. 319 and 320 deals with "Khulla" and 321 and 322 are also modes of separation, but not judicial divorce. The second part i.e. Part-B relates to judicial divorce at suit of a wife and Part-C deals with consequences/affects of divorce, hence under the whole Chapter of divorce at Chapter 16 there is no provision to show that Muslim husband is entitled to approach the court for a decree of divorce."

5. Even though the learned counsel for the appellant has again harped on the same provision under Chapter-16 of the Mohammedan Law to bring home the point that Muslim husband is also entitled to seek divorce through a judicial decree as per Section 307(3) but in none of the subsequent Sections provided in paragraph 308-316, dealing with the different forms of Talak, husband has been given a mandate to go for a decree of divorce. On the contrary, provision under Section 323 under part B refers to the various grounds available to Muslim woman for seeking dissolution of marriage through a suit: (1) the whereabouts of the husband are unknown for a period of four years ( Section 324); (2) failure of the husband to provide for the maintenance of the wife for a period of two years ( Section 325); (3) sentence of imprisonment on husband for a period of seven years ( Section 326); (4) failure

without reasonable cause to perform marital obligations (Section 327) ; (5) impotence of husband (Section 328); (6) insanity of husband (Section 329); (7) repudiation of marriage by wife (Sections 330 and 273); (8) cruelty of husband (Section

331); and (9) any other grounds recognized by Muslim law (Section 332).

First part A relates to divorce by husband and when divorce proceeds from husband it is called "Talak" and when it is effected by mutual consent it is called as "Khula" or "Mubarrat". Sections 308 to 316 deal with different forms of Talak by the husband.

6. Despite indulgence granted, the learned counsel for the appellant has not been able to show any other provision of law or judgment on the point where such a suit for dissolution of marriage on the part of the Muslim husband under Mohammedan Law is maintainable.

7. Learned counsel for the respondent-wife argued in support of the view taken by the learned Family Court. He submits that none of the provisions under Mohammedan Law permits the husband to obtain the decree of divorce through a judicial declaration. However, other forms of divorce are available to the husband to be exercised, as per the condition stipulated thereunder. Learned Family Court has rightly held that the instant suit is not maintainable

8. We have considered the submissions of the learned counsel for the parties, gone through the impugned judgment and the relevant provisions of law relied upon by them, as discussed hereinabove. We find that the appellant has not been able to dislodge the findings of the learned Family Court on the plea of maintainability by citing any precedent on the subject or any other provision of law, apart from those referred above, which could sustain the maintainability of the suit for divorce on the part of the husband.

9. We, therefore, do not find any ground to interfere with the findings in the impugned judgment. Accordingly, present appeal is dismissed."

5. On consideration of the legal position, we are satisfied that the impugned judgment dated 15.06.2021 passed in Original Suit No. 67 of 2021 by the court of learned Principal Judge, Family Court, Jamshedpur does not suffer from any error of law or facts warranting interference in this appeal. Accordingly, this appeal is dismissed at the stage of admission.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary, J.)

A.Mohanty