ZUBER S/O JAHANGIRPASHA KHADIM Vs. MAHEZABEEN

JUDGEMENT

(1.) The appellant is a Muslim husband, he has challenged the dismissal of his suit by the trial court. The facts in brief are that the appellant filed a suit against his wife seeking a decree for dissolution of his marriage with her. He has made several allegations against the wife for seeking dissolution. The wife filed written statement. Based on the pleadings the trial court framed five issues, of which issue no.4 was treated as a preliminary issue. The trial court decided that a Muslim husband cannot file a suit for dissolution of marriage as the divorce is governed by the personal law and dismissed the suit as not maintainable and hence this appeal before this court.

(2.) The learned counsel for the appellant submits that while the personal law provides for divorcing the wife by uttering talaq, but according to Section 307 of Commentary on Mohammedan Law by Mulla, a husband can seek divorce by intervention of the court. He submitted that conjoint application of the Shariyat and Section 307, the husband gets right to approach the court seeking dissolution of marriage with his wife. He also refers to judgment of the High Court of Delhi in the case of Masroor Ahmed vs. State (NCT of Delhi) and others () to argue that the suit is very much maintainable. His further argument is that in para-15 of the said judgment it is very clearly observed that a qazi (judge) is required to deliver a qaza (judgment) based upon the Shariyat and therefore the court has to sit as a witness when the husband proclaims Talaq. It is his argument therefore that looked in this view the suit is 4maintainable and the trial court has committed an error in dismissing the suit as not maintainable.

(3.) Learned counsel for the respondent-wife argues that the trial court has not committed any error in holding the suit as not maintainable. The parties are governed by their personal law. If the husband wants to divorce, he has to follow Shariyat. Inspite of proclaiming Talaq in accordance with the Shariyat, if any dispute arises thereafter, the husband gets a right to seek declaration with regard to marital status according to section 34 of the Specific Relief Act. There is no cause of action for the suit. In support of his argument he places reliance of the judgment of the Division Bench of the High Court of Jharkhand at Ranchi in the case of Md. Yusuf vs. Nasreen Begum. (F.A.No.187 of 2016).