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

-2-

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 Tala