Madhya Pradesh High Court
Kamil Khan vs Smt. Sabreen Khan on 31 January, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 31st OF JANUARY, 2025
FIRST APPEAL No. 2350 of 2024
KAMIL KHAN
Versus
SMT. SABREEN KHAN
Appearance:
Shri F.A. Shah - Advocate for the appellant.
Shri Poonam Chand Soni - Advocate for the respondent.
ORDER
Per: Justice Hirdesh
Appellant and respondent are present in person.
Heard on I.A. No. 9126/2024, which is an application filed u/s. 5 of
the Limitation Act for condonation of delay in filing of this appeal.
Learned counsel for appellant submits that due to reasons assigned into
the application, delay has been caused.
Considering the contents of the application and the submission
advanced, application for condonation of delay is hereby allowed and appeal
is directed to be heard on merits.
Heard on admission.
The instant first appeal under Section 19 of the Family Court Act,
1984 is preferred by the appellant/husband against the order dated
25.10.2024 passed by the Principal Judge, Family Court, Gwalior in Case
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No. 450/2023 (HMA), whereby the suit for divorce preferred by the
appellant has been dismissed on the ground of maintainability and also
dismissed the application filed under Order 23 Rule 3 of CPC.
In brief, the facts of the case are that marriage of appellant and
respondent was solemnized on 19.05.2022 through Muslim rites and rituals.
Soon after the marriage, as per allegation of appellant/husband that the
behavior of his wife/respondent became dis-satisfactory and cruel towards
him and his family. She was very brutal and disrespectful towards elders. Her
wife had close relationship with one person namely Fardin and she used to
talk with him over mobile-phone in odd hours and used to express her
willingness to marry Fardin by saying that due to pressure of her family
members, she has performed marriage with appellant/husband. On
19.01.2023, she left her matrimonial home and since then, she is living in her
maternal home at Jhansi, U.P. Further allegations of the appellant that no
cohabitation between them had taken place after their marriage. Therefore,
he filed a suit for grant of a decree of divorce under Section 34 of the
Specific Relief Act, 1963 along with application under Order 23 Rule 3 of
CPC. The trial Court dismissed the suit on the ground of non-
maintainability.
Challenging the impugned judgment, learned counsel for the appellant
submits that the Family Court has committed an error in dismissing the suit
of divorce preferred by appellant/husband. The suit for divorce was very
much maintainable in view of Section 7 of the Family Courts Act, 1984
(hereinafter referred to as "the Act of 1984") as this provision deals with the
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jurisdiction of a Family Court and in the explanation clause, the nature of
proceedings are classified. Section 7(1)(d) of the Act of 1984 provides that a
suit or proceeding for an order and injunction in circumstances arising out of
a marital relationship can be heard by the Family Court.
It is further submitted that Rule 9 of the High Court of Madhya
Pradesh Family Court Rules, 1988 (hereinafter referred to as "the Rules of
1988") provides power to the High Court to issue instruction in relation to
registration of fresh suits or proceedings regarding suits or proceedings
arising out of personal law applicable to muslims including the Muslim
Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as "the
Shariat Act") and Dissolution of Muslim Marriages Act, 1939 (hereinafter
referred to as "the Act of 1939"). Thus, there is ample power entrusted upon
the Family Court by the statutes to entertain the application for divorce of a
muslim male.
According to learned counsel for the appellant, Section 2 of the
Shariat Act covers all the aspect of the life of a Muslim male through the
procedure established by law including dissolution of marriage by Talaq, Ila,
Zihar, Lian, Khula and Mubaraat. Thus, the grave illegality is committed by
the Family Court in not deciding the divorce application of the appellant.
Section 2 of the Act of 1939 also provides a procedure for dissolution of
marriage through judicial process providing several grounds to a Muslim
male. Thus, prayed for setting aside the impugned order passed by the
Family Court.
Learned counsel for the respondent opposed the submissions raised by
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learned counsel for the appellant. He supported the impugned judgment
passed by the Family Court and submitted that once the statute does not
provide any mechanism for dissolution of marriage of a Muslim male, then
no direction in that regard can be issued by the Court. Thus, prayed for
dismissal of this appeal.
Heard learned counsel for the parties at length and perused the
documents appended thereto.
This is a case where a muslim male has sought dissolution of
marriage. As per Section 2 of the Act of 1939 a woman married under
Muslim Law shall be entitled to obtain a decree for the dissolution of her
marriage on any ground as enumerated in Section 2 of the Act of 1939. Here,
it appears from perusal of the provisions as contained into the Act of 1939
that a male does not have any way to obtain the decree for dissolution of
marriage. For that purpose, one has to take recourse to the Act of 1984.
Section 7 of the Act of 1984 is worth reproduction in this regard:
"7. Jurisdiction.- (1) Subject to the other provisions of this
Act, a Family Court shall- (a) have and exercise all the jurisdiction
exercisable by any district court or any subordinate civil court
under any law for the time being in force in respect of suits and
proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such
jurisdiction under such law, to be a district court or, as the case
may be, such subordinate civil court for the area to which the
jurisdiction of the Family Court extends.
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Explanation.- The suits and proceedings referred to in this
sub-section are suits and proceedings of the following nature,
namely:-
(a) a suit or proceeding between the parties to a marriage for
a decree of nullity of marriage (declaring the marriage to be null
and void or, as the case may be, annulling the marriage) or
restitution of conjugal rights or judicial separation or dissolution
of marriage;
(b) a suit or proceeding for a declaration as to the validity of
a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage
with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in
circumstances arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy
of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the
person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act, a Family
Court shall also have and exercise-
(a) the jurisdiction exercisable by a Magistrate of the First
Class under Chapter IX (relating to order for maintenance of wife,
children and parents) of the Code of Criminal Procedure, 1973 (2
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of 1974); and
(b) such other jurisdiction as may be conferred on it by any
other enactment."
Section 7 of the Act of 1984 falls under Chapter III which
contemplates jurisdiction. Section 7(1)(Explanation)(d) of Act of 1984
contemplates that a suit proceeding which can be entertained by Family
Court if the said suit or proceeding is for an order or injunction in
circumstances arising out of a marital relationship. Since this provision does
not distinguish on the basis of Caste and Community, therefore, it is all
pervasive in nature. It is in line with the object of the Act of 1984 which
reads as under:
"An Act to provide for the establishment of Family Courts with a view
to promote conciliation in, and secure speedy settlement of disputes relating
to marriage and family affairs and for matters connected therewith."
Therefore, one has to take cue from the Act of 1984 and then has to
look into the High Court of Madhya Pradesh Family Court Rules, 1988
(hereinafter referred to as "the Rule of 1988") in which rule 9 is produced for
ready reference:
9. Registration of fresh Suites or proceedings.- (1)The High
Court may in relation to any fresh suit or fresh proceeding issue
instructions in writing to Family Courts for registration of fresh
suit or fresh proceeding.
(2) In particular and without prejudice to the generality of
the foregoing power, the instructions to be issued by the High
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Court, may provide for inclusion for the purposes of the
registration of suits or any proceedings of the nature referred to in
Explanation to Sub-Section (1) of Section 7 of the Act and
instituted or taken before a Family Court with reference to related
provisions contained in following laws as amended from time to
time viz.:-
(i) proceeding under chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974);
(ii) suit or proceeding under the Hindu Marriage Act,1955
(25 of 1955):
(iii) suit or proceeding relating to maintenance under the
Hindu Adoptions and Maintenance Act, 1956 (78 of 1956):
(iv) Suit or proceedings in relation to the Guardianship of
the persons or the custody of or access to any minor under the
Hindu Minority and Guardianship Act, 1956 (32 of 1956) (v)
proceedings under Dowry Prohibition Act, 1961 (28 of 1961), for
an order for injunction in circumstances arising out of marital
relationship.
(vi) proceedings in relation to Hindu Marriage (Validation
of Proceedings) Act, 1960 (19 of 1960);
(vii) suits or proceedings arising out of personal law
applicable to muslims including:
(a) Muslim Personal Law (Shariat) Application Act, 1937
(26 of 1937)
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(b) Dissolution of Muslim Marriages Act, 1939 (8 of 1939)
(viii) suites or proceedings under the Parsi Marriage and
Divorce Act, 1936 (3 of 1936), which can be instituted or taken
out before the Parsi District Matrimonial Courts constituted under
Sections (18 and 20) of the said Act;
(ix) suits or proceedings under the Indian Christian Marriage
Act, 1872 (15 of 1872)
(x) suits or proceedings under the Special Marriage Act,
1954 (43 of 1954)
(xi) proceedings under the child Marriage Restraint Act,
1929 (19 of 1954).
(xii) proceedings in relation to Anand Marriage Act, 1909
(7 of 1909)
(xiii) proceedings in relation to Arya Marriage Validation
Act, 1937 (19 of 1937).
(xiv) suits or proceedings arising out of Foreign Marriage
Act, 1969 (19 of 1937).
(xv) suits or proceedings relating to the part B States
Marriages Validating Act, 1952 (1 of 1952)
(xvi) suit or proceedings relating to the Muslim Women
(Protection of Rights on Divorce) Act, 1986 (25 of 1986)
(xvii) suits or proceedings under the Guardians and Wards
Act 1890 (8 of 1890).
(xviii) suits or proceedings relating to the Hindu Marriages
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(Validation of Proceedings) Act, 1960 (19 of 1960).
Rule 9(2)(vii) is framed in respect of suit or proceeding arising out of
personal law applicable to Muslim including the Shariat Act and the Act of
1939. Perusal of these Acts and rules reveals that so far as Shariat Act is
concerned for realization of the issue (like divorce in the present case) has to
be regulated through procedure and procedure as prescribed in the Act of
1984 as well as High Court of Madhya Pradesh Family Court Rules.
Therefore, the procedure established by law is clear that a Muslim male can
sue a suit or proceeding for dissolution of marriage on the grounds as
available to him.
Recently, this Court in the case of Mohammad Shah Vs. Smt.
Chandani Begum passed in First Appeal No.1199/2022 judgment dated
07.01.2025 discussed in detail about all these aspects as discussed above and
came to the conclusion that such suits/proceedings/applications are
maintainable. This Court intends to tread on the same path.
Earlier the Division Bench of this Court in the case of Aqeel Ahmed
(Khan) Vs. Smt. Farzana Khatun in First Appeal No.1017 of 2022 vide order
dated 14-10-2022 considered this aspect and relying upon the order dated 30-
03-2021 passed by the Division Bench of Madras High Court in C.M.A.
No.2192 of 2017 (Settu Vs. Reshma Sulthana) considered the question of
maintainability as well as settlement reached between the parties and allowed
the appeal preferred by the parties on the basis of settlement reached between
them. Therefore, it can be held that parties have additional forum of this
Court also to get the decree for divorce/dissolution of marriage.
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Even the Constitutional Morality and its Spirit also mandates that no
person can be rendered remediless. If the reasoning of trial Court would have
been accepted then a Muslim male would have been denied the valuable
right to access justice or judicial forum to ventilate his grievances. This
could never have been the Constitutional spirit, morality and Constitutional
Vision of Justice.
In view of the foregoing provisions as well as discussions, in the
considered opinion of this Court, trial Court has committed an error in
dismissing the application under Order 23 Rule 3 of CPC and the suit filed
by the appellant under Section 34 of Specific Relief Act, 1963 on the ground
of non-maintainability. Accordingly, the impugned judgment passed by
learned Family Court is hereby set aside and the matter is remanded back to
the Family Court for fresh adjudication. Both the parties are directed to
appear before the Family Court on 12.02.2025.
A copy of this judgment be sent to the Family Court for necessary
information and compliance.
C.c. as per rules.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
Barik/ar
