MOHAMMAD ABDUL ZALIL AHMED Vs. MUSTT MARINA BEGUM

JUDGEMENT

(1.) An application for divorce was filed by the wife under the Dissolution of Muslim Marriage Act, 1939 to dissolve her marriage which was celebrated on 20th March, 1990. The main ground in the application for divorce was that the husband has failed to perform without reasonable cause his marital obligation and that husband treated with cruelty i.e. physical torture and ill-treatment and making her life miserable by cruelty of conduct. The Dissolution of Muslim Marriage Act, 1939 was enacted with the object to ameliorate the lot of a Mohammedan wife and enlarge her right. There is no provision in the Hanafi Code of Muslim Law to enable a Muslim woman to obtain a decree from the Court dissolving her marriage, in case the husbandneglects to maintain her, makes her life miserable by deserting or persistently mal-treating her or absconds leaving her unprovided for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women throughout the country and it was on this background that this Act i.e. the Dissolution of Muslim Marriage Act, 1939 was enacted by the legislature, in order to give certain rights to the married women and it was further pointed out in the object and reasons that this is not against the tenets of Quran. It was further pointed out in the object and reasons that it does not add anything with the provisions of the personal Muslim Law and it does not impinge on the personal law of the Muslim. Section 2 of that Act provides the grounds for decree for dissolution of marriage. Section 2(iv)(viii)(a) are quoted below :-"2. Grounds for decree for dissolution of marriage -. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(viii) that the husband treats her with cruelty, that is to say,-(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or"

(2.) It is found that the application which was filed for divorce by the wife conforms to the provisions as mentioned. Thereafter, a joint application was filed both by the husband and wife to pass a decree in terms of the application filed by the wife. The learned Family Court by order dated 6-5-95 passed the following order :-"6-5-95O R D E RBoth the parties are present. Issue have been framed. Seen the joint petition No. 69/95 dated 25-4-1995 for a decree of divorce on mutual consent. Heard the parties. Decree of divorce on mutual consent is not known to the dissolution of Muslim Marriage Act 1993 and therefore the petition is not acted upon. Fix 12-6-95 for steps before P. hearing. Parties will produce their documents, list of witnesses and summons etc. on or before the date fixed.Sd/- S. N. Bezbaruah,Principal Judge, Family Court,Kamrup, Gauhati."

(3.) No doubt, the finding arrived at by the Family Court that there is no provision for divorce by mutual consent under Muslim Marriage Act, 1939 is correct, but at the same time, it should be borne in mind that the parties can compromise such a matter and a decree may be passed in terms of the compromise if otherwise it does not militate against the grounds as mentioned in S. 2 of the Dissolution of Muslim Marriage Act, 1939. If any authority is required for this proposition of law, one can look at AIR 1989 Calcutta (P) 115, that of course is a case under the Hindu Marriage Act, 1955 it is pointed out that a decree of divorce solely on the basis of compromise, without any advertence as to the existence of any of the permissible grounds is not permissible under the Law. Even under the Muslim Marriage Act, 1939, a divorce by mutual consent cannot be passed without being satisfied with regard to the grounds provided for granting a decree of divorce. When a statute requires certain things in existence, the Court must find out whether it is there for granting the relief, because the Court cannot grant the relief sought for in absence of the things the statute requires. In this particular case it is submitted at the Bar that already the husband the present appellant has remarried and the marriage of the respondent is already fixed up. But, because of the refusal of the Court to grant a decree in favour of the petitioner she is not in a position to marry for the 2nd time. The wife is a young lady and it will not be just and proper to keep her hanging in air and now the situation is that she is not in a position to go back as her husband has already married.