IMPORTANT POINT
Mohammedan Law – Divorce – Suit for divorce on part of husband is not maintainable under provisions of Mohammedan Law.

JUDGMENT

Heard learned counsel for the appellant Mr. Ashutosh Anand and Mr. Anil Kumar Sinha representing the respondent.

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 27.01.2021 passed in Original Suit No. 510 of 2020 by the court of learned Principal Judge, Family Court, Ranchi. The learned Family Court, Ranchi 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. Learned counsel for the respondent Mr. Anil Kumar Sinha has also relied upon the decision of this Court in the case of Md. Yusuf (supra) and submitted that the learned Family Court, Ranchi has rightly held the suit to be not maintainable. It is also submitted that the decision of this Court in the case of Md. Yusuf (supra) has been followed by Division Bench of the High Court of Karnataka in Miscellaneous First Appeal No. 200834/2019 (FC) dated 13.11.2019 passed in the case of Zuber Vrs. Mahezabeen. Therefore, the appeal may be dismissed without formally admitting it for hearing as there is no error in the impugned judgment passed by the learned Family Court, Ranchi nor was the suit maintainable on any lawful basis.

5. We have considered submissions of learned counsel for the parties and gone through the impugned judgment. The learned Family Court, Ranchi has while considering the prayer of the appellant husband for divorce taken 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