Allahabad High Court pulls up family court for granting divorce to Muslim woman under non-existent law

The Allahabad High Court recently set aside a divorce granted by a family court to a Muslim woman after finding that the order was passed under a non-existent law [Hafij v Parveen Khatoon]

The family court in Banda district had ruled that the marriage stood dissolved under the Muslim Women Marriage Dissolution Act, 1986. 

However, a Division Bench of Justice Atul Sreedharan and Justice Vivek Saran noted that no such law exists in India.

The family court perhaps intended to refer to the Dissolution of Muslim Marriages Act, 1939, the High Court said.

The Court observed that mere mention of a wrong provision of law does not invalidate the final order. However, it found that the trial court had repeatedly relied on the non-existent law in its judgment.

“In the present case, after giving the cause title, the learned Trial Court records that the decision has been passed under the Muslim Women Marriage Dissolution Act, 1986. Such a law does not exist in any statute. What perhaps the learned Trial Court intended was to refer to the Dissolution of Muslim Marriages Act, 1939. Thereafter, the entire judgment has referred to the pleadings and evidence that were recorded during the course of the trial, but wherever the law had to be referred to, the learned Trial Court has repeatedly made the error of referring to the same as "मुस्लिम स्त्री विवाह विच्छेद अधिनियम, 1986", which is already stated hereinabove, does not exist,” the Bench said.

The Court said the trial court, presided over by a senior district judge, had been rather casual in writing the judgment.

The Bench emphasised that it was for the family court to ensure that the statute referred to by it actually exists. A mere error in the plea or the proceedings does not justify the trial court repeating the same error in the final judgment, it added.

“Had the error been typographical error in an innocuous place of the order, the same could have been ignored by this Court. However, repeatedly referring to a statute that does not exist and that by holding the respondent-wife eligible to partial relief under a non-existing law, renders the judgment bad in law and facts,” the Bench further said.

The decision was passed on an appeal moved by the husband whose wife was granted divorce on January 28.

His counsel argued that the trial court had committed a mistake by even entertaining the plea filed under the provisions of the Muslim Women Marriage Dissolution Act, 1986, since such a law does not exist.

“The plaint was filed apparently, (looking at the year of the Act, which is 1986), under the Muslim Women (Protection of Rights on Divorce) Act, 1986, which is a law that was brought out for the protection of Muslim Women with regard to their assets and rights, who have already been divorced . However, the respondent had filed the said case for the dissolution of her marriage, which necessarily ought to have been under the Dissolution of Muslim Marriages Act, 1939, which in Hindi reads as " मुस्लिम विवाह विघटन अधिनियम, 1939",” the Court was told.

Considering the submissions, the Court set aside the divorce order and remanded the matter to the family court for a fresh judgment under correct provisions of law.

However, the Court also clarified that it was not ordering a fresh trial in the matter.

“It is made clear that the Court is not directing a de novo trial and that while passing the final judgment, the Court may rely upon the material and evidence already available on record, unless it is of the firm opinion that additional evidence requires to be adduced. The learned Family Court is further requested to pass the final order, expeditiously, if possible, within a period of three months from the date of communication of this order," the Bench said.

Advocate Moeez Uddin represented the husband.

Advocates Kameshwar Singh and Sudhanshu Kumar Singh represented the respondents.

[Read Judgment]