The Gauhati High Court has ruled that a civil judge cannot declare the talaq (pronouncement of divorce) given by a Muslim husband to his wife to be valid in a declaratory relief suit, and that the appropriate court with jurisdiction over matrimonial matters must be approached for such relief [Javed Pervez Choudhury v Begum Najifa Yasmin Choudhury].
Justice Mitali Thakuria was dealing with an appeal filed by a husband who had earlier approached a civil court for a declaration that his marriage stood dissolved after he gave talaq to his wife.
The civil judge (junior division) had passed a ruling to dissolve his marriage after confirming the talaq given by him to his wife. However, a civil judge (senior division)/ appellate court set aside this ruling, on the ground that the lower civil court lacked the jurisdiction to grant a divorce.
This led the husband to filed an appeal before the High Court. Upholding the appellate court’s judgment, the High Court noted that it was not a simple case where the husband had merely sought a declaration under Section 34 of the Specific Relief Act from the civil court.
Rather, the husband was praying for a decree of divorce which the civil court did not have jurisdiction to grant, the High Court found.
“It is a settled law that the family disputes, the dissolution of marriage, decree of divorce under the Hindu Marriage Act or the Special Marriage Act can only be entertained by the Family Court under Sections 7 & 8 of the Family Courts Act, 1984 and in absence of the Family Court, the District Court can examine the matters,” the Court added.
The “District Court” with family jurisdiction would be a Principal Civil Court of original jurisdiction, the Court explained.
In 2024, the husband had moved a civil judge (junior division) for a declaration of dissolution of marriage on the basis of the talaq given by him to his wife, along with a decree for the confirmation of a written divorce. A judge allowed his plea in May 2025.
However, the decision was later set aside by a senior civil judge on the wife’s appeal. The civil judge (senior judge) ruled that the lower court had no jurisdiction to entertain such a suit.
The husband then moved the High Court and argued that his suit did not seek a decree of divorce but only a declaration that the divorce given by him to his wife was valid.
Disagreeing with the contention, the High Court concluded that in the name of a declaratory suit, the husband had sought a divorce decree.
The civil judge (junior division) had no such authority or power to pass any decree of divorce/talaq, it added.
“Thus, this Court is of the opinion that the learned appellate Court did not commit any error or mistake while disposing the appeal on the point of jurisdiction with a further direction to the parties to approach the appropriate forum, seeking any relief of divorce/talaq. Further, the appellate Court had rightly observed that the decree passed by the learned Civil Judge (Jr. Div.), Hailakandi can be considered as a nullity due to lack of jurisdiction and hence, the question of discussion on merit on the other issues are also does not arise,” the Court further said.
The High Court ruled that the appellate court had rightly directed the husband to approach the competent authority for divorce.
Accordingly, the Court dismissed the husband’s appeal.
Advocate MJ Quadir argued for the husband.
Advocate N Haque argued for the wife.
[Read Judgment]