A Muslim male can seek dissolution of marriage under the Family Court Act, contradicting previous dismissal based on maintainability.

JUDGMENT

Per: Justice Anand Pathak

1. The instant first appeal under section 19 of the Family Court Act, 1984 is preferred by the appellant being crestfallen by the order dated 18.5.2022 passed by the Principal Judge, Family Court, Datia whereby the suit for divorce preferred by the appellant has been dismissed on the ground of maintainability.

2. Precisely stated facts of the case are that marriage of appellant and respondent was solemnized on 19.10.2007 through Muslim rites and rituals. Out of the wedlock, couple was blessed with four children namely, Chahat Bano, Gudiya Bano, Kousar Bano and one son namely Sonu. Domestic incompatibility existed between the couple continued between the parties despite lapse of sufficient time and even after blessed with four children. Since respondent/wife of appellant was of modern outlook lady since beginning and as alleged she had close relationship with one of her relatives namely Sharafat Shah who used to visit regularly the house of appellant, thereafter this was one of the reasons of domestic unrest.

3. On 17.1.2016 when appellant was out of his house, respondent eloped with the said person Sharafat Shah along with son Sonu and took Rs.1,85,000/- in cash as well as jewelry. Since then appellant is taking care of three daughters and respondent is living in adultery with Sharafat Shah. Out of the wedlock of respondent and Sharafat Shah, a child was born on 4.4.2017 at Shri Research Center and Hospital, Kanpur Road, Jhansi (U.P.). Therefore, appellant filed the case for divorce however same was dismissed on the ground of maintainability. According to trial Court, suit at the instance of a party seeking divorce under Muslim law is not maintainable. Therefore, challenging that order, present appeal is preferred.

4. Learned counsel for the appellant submits that the Family Court erred in dismissing the suit of divorce suit preferred by the appellant. 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 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.

5. 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.

6. 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 musli