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Judgment
Heard Ms. S.P. Hussain, learned Legal Aid Counsel appearing for the petitioner. Also heard Mr. Y.S. Mannan, learned counsel appearing for
respondent No.4, Mr. M. Rahman, learned counsel appearing for respondent No.3. Mr. R.C. Borpatragohain, learned Advocate General, Assam, who
was requested by the Court to address, is also heard. He is assisted by Mr. T.C. Chutia, learned State counsel.
This writ petition is filed questioning the process of talak initiated by respondent No.3 and for directing the respondent Nos.2 and 3 to cancel, recall
or otherwise forbear from giving effect to the impugned registration of talak.
The respondent No. 2 is the Registrar-cum-Deputy Commissioner, Kamrup and respondent No.3 is the Muslim Marriage and Divorce Registrar,
Hatigaon for the district of Kamrup.
At the outset, facts relevant for the purpose of this case, as stated in the writ petition, may be, briefly, noticed:
       The marriage between the petitioner and the respondent No.4 was solemnized on 21.03.2015 according to Islamic Shariat at
Guwahati. From the beginning of the marital life, the petitioner had been subjected to mental and physical torture by respondent No.4. After she
conceived in the month of April, 2015, she was forced to leave her matrimonial home and during the period of pregnancy, she was not taken care of.
She finally gave birth to a male child in the month of January, 2016. After about 15 days of her release from the hospital, petitioner’s brother had
taken her and the baby to her matrimonial home. Physical torture continued and on 17.02.2017, she went to her parental home for performance of
some religious rituals as well as for vaccination of the baby. When she returned back to her matrimonial home, the respondent No.4 did not allow her
to enter the house and drove her away as a result of which she had to come back to her parental house. The petitioner received a notice dated
20.02.2016 from the office of respondent No.3 under his seal asking the petitioner to appear in his office on 29.02.2016. As the petitioner was advised
complete bed rest because of bleeding, the brother of the petitioner went to the office of the respondent No.3 and submitted an application stating the
physical condition of the petitioner and her inability to appear before him. The petitioner received another notice asking her to appear on 12.03.2016 on
the basis of the application submitted by the brother of the petitioner on 29.02.2016. The petitioner had submitted a medical certificate through her
brother on 16.03.2016, i.e. after the date fixed by respondent No.3 was over. The petitioner also filed a suit for restoration of conjugal rights before
the Family Court which was registered as F.C. (Civil) No.207/2016. She also filed a petition under Section 125 Cr.PC. for grant of maintenance
before the Family Court on 05.05.2016. The petitioner submitted an application on 18.03.2016 to the respondent No.3 along with a copy of the order
dated 16.03.2016 of the Family Court. While the matter rested at that, the petitioner received a notice of second Talaknama issued by respondent
No.3 in the month of April, 2016. From the written statement submitted by respondent No.4 in F.C. (Civil) No.207/2016, the petitioner learnt that in the
month of June 2016, the respondent No.4 had pronounced third and final talk on 17.06.2016 and that the said talak had been registered in the office of
the respondent No.3 as per Sections 6 and 11 of the Assam Muslim Marriages and Divorces Registration Act, 1935 (for short, “the 1935 Actâ€).
In the affidavit, the respondent No.3 stated that as the writ petitioner did not come to his office on 12.03.2016 in terms of the notice dated
01.03.2016, the respondent No.4 decided to divorce his wife and submitted first talak in his office on 14.03.2016 and a copy of the Talaknama along
with a notice were sent to the writ petitioner on 15.03.2016. It is further pleaded that the petitioner is not interested to settle the dispute amicably
before him but is only interested to harass the respondent No.4 by filing cases against him. On 15.04.2016, second talak was pronounced in presence
of witnesses and copy of the second Talaknama dated 15.04.2016 was sent along with the notice dated 15.04.2016 to the petitioner by registered post
on 19.04.2016. Later on, third talak was pronounced in presence of three witnesses on 17.06.2016 and the talak was registered on that day in terms of
Sections 6 and 10 of the 1935 Act and a copy of the third Talaknama dated 17.06.2016 and the Talak Registration Certificate were sent to the
petitioner on 20.06.2016 by registered post.
In the additional affidavit filed, the petitioner has stated that all the notices issued by respondent No.3 were served through the Chandmari Police
Station which had caused great embarrassment, mental harassment and humiliation. It is also averred that respondent No.3 had converted the
Registration Office of Marriage and Divorce to a Court of law. Without any authority the respondent No.3 is also issuing Divorce Certificates.
In the affidavit-in-opposition filed by respondent No.4, allegations made by the petitioner were denied. It is stated that it was the petitioner who had
caused mental torture upon him and had demanded luxurious life style beyond his capacity. Averments are made regarding pronouncement of talak as
stated by respondent No.3. It is averred that the respondent No.4 is paying monthly maintenance of Rs.800/- in terms of the order passed by the
Family Court. It is also stated by him that the petition filed by the petitioner under Section 12 of the Protection of Women from Domestic Violence
Act, 2005, registered as Misc. Case No.104M/2016 and a case being GR Case No.12759/2016 under Section 498(A) IPC are pending in the Court of
the Judicial Magistrate 1st Class, Kamrup (M) and he is facing trial.
Ms. Hussain has submitted that respondent No.3, as the Muslim Marriage and Divorce Registrar, has no authority to issue notice requiring
attendance of a party to a marriage and that apart, the respondent No.3 had abused his position by issuing such notices through a police station,
arrogating himself to the position of a judicial authority and therefore, this Court ought to hold that such action of respondent No.3 is bad in law and
direct the respondent No.3 not to issue in future such notices and to restrict himself to the task assigned under the 1935 Act, which is registration of
marriages and divorces, and not beyond that. She submits that the petitioner will initiate appropriate legal proceedings to challenge the talak but seeks
appropriate directions in respect of powers and duties of a Kazi, as issuance of notices of the kind, as issued by the respondent No.3, instead of
helping reconciliation, aggravates dispute. She has drawn the attention of the Court to the Kazi Act, 1880 (for short, “the Kazi Actâ€), with special
reference to Section 4 thereof. She has placed reliance on a judgment of this Court in the case of Jiauddin Ahmed vs. Anwara Begum, reported in
(1981) 1 GLR 358 and in the case of Shamin Ara vs. State of U.P. & Anr., reported in AIR 2002 SC 3551(1).Â
Mr. Mannan submits that he had approached the respondent No.3 for settlement of disputes between the parties. He has submitted that the
respondent No.4 had validly given talak to the petitioner but he submits that issuance of notice by respondent No.3 through the police may not be
permissible in law.
Mr. Rahman has submitted that respondent No.3 had attempted to make reconciliation between the parties and as the respondent No.4 had given
talak, being satisfied with the talak, he had registered the talak and had issued the Divorce Certificate.
Mr. Borpatragohain has cited the judgment of the Supreme Court in the case of Shayara Bano vs. Union of India, reported in (2017) 9 SCC 1. The
learned Advocate General, in no uncertain terms, has submitted that the respondent No.3 was acting arbitrarily and without any authority of law in
issuing the notices. Drawing the attention of the Court to Para 7 of the affidavit of respondent No.3, he has submitted that it appears to him that the
respondent No.3 was taking cudgels on behalf of respondent No.4 and had taken a biased and partisan stand against the petitioner. He submits that
this Court can go into the question of validity of the talak given by the respondent No.4.
I have heard the learned counsel for the parties and have perused the materials on record.
Kazi Act provides that whenever it appears to the State that any considerable number of the Muhammadans resident in any local area desire that
one or more Kazis should be appointed for such local area, the State Government may, if it thinks fit, after consulting the principal Muhammadan
residents of such local area, select one or more fit persons and appoint him or them to be Kazis for such local area.
From the short title of Kazi Act, it appears that it extended in the first instance, only to the territories administered by the Governor of Fort Saint
George in Council. By virtue of amendment, it is also provided that the Government of any other State may from time to time, by notification in the
Official Gazette, extend it to the whole or any part of the territories under its administration. Section 4 of the 1880 Act shows that no appointment
made under Kazi Act, shall be deemed to confer any judicial or administrative powers on any Kazi.
It has not been brought to the notice of the Court as to whether the State of Assam has extended the application of Kazi Act to the State of
Assam.
It will be relevant to take note of the provisions contained in Sections 2(2), 2A, 3, 6, 9 and 11 of the 1935 Act.
“2(2) ‘Muslim Registrar’ means any person who is duly authorized under this Act to register (Muslim) Marriages and divorces;
2A. Registration of Muslim marriages compulsory.- Subject to other provisions of this Act and the rules made there under, registration of Muslim
marriages and divorces are compulsory within the state of Assam.
State Government may grant licences to register. â€" The State Government may grant a licence to any person, being a Muslim, authorizing him to
register Muslim marriages and divorces which have been effected within certain specified limits, on application being made for such registration; and
may revoke or suspend such licence:
     Provided that not more than two persons shall be licensed to exercise the said function within the same limits; and provided further that,
when two persons are so licensed to Act within the same limits, one shall be a member of the Sunni, and the other of the Shia sect.
Muslim Registrar to keep registers- Every Muslim Registrar shall maintain the following register of books:
     Book 1., Register of Marriages, in the Form (A) contained in the Schedule I to this Act.
     Book II., Register of divorces other than those of the kind known as ‘Khula’ in the Form (B) contained in the Schedule II of this
Act.
     Book III., Register of divorces of the kind known as “Khula†in the Form (C) contained in the Schedule III of this Act.
     9. Duties of Muslim Registrar on application.- On application being made to a Muslim Registrar for registration under the Act of a
marriage or divorce within one month of marriage or divorce being effected, and not otherwise and on payment to him of a fee prescribed as per
Schedule IV to this Act, the Muslim Registrar shall -
(a) satisfy himself whether or not such marriage or divorce was effected, by theperson or persons by whom it is represented to have been effected;
(b) satisfy himself as to the identity of the person appearing before him and allegingthat the marriage or divorce has been effected;
(c) in the case of any person appearing as representative of the man or woman(whether he appears as guardian or Vakil) satisfy himself of the right
of such person to appear.
     If the Muslim Registrar be satisfied on the above points and not otherwise, he shall make an entry of the marriage or divorce in the
proper register:
     Provided that no such entry shall be made otherwise than in the presence of every person who, by Section 10 of this Act, is required to
sign such entry.
 11. Copies of entry to be given to parties.- On completion of the registration of any
marriage or divorce, the Muslim Registrar shall deliver to each of the applicants for registration an attested copy of the entry; and for such copy no
charge shall be made.â€
It will also be relevant to take note of the provisions of Rules 27, 29 and 31 of the Assam Moslem Marriage and Divorce Registration Rules, 1935
(for short, “the 1935 Rulesâ€).
“27. The Moslem Registrar shall satisfy himself whether or not a divorce, other than the Kind known as Khula, was effected by the man by whom
it is represented to have been effected by examining that man; and if he be of the Shia sect, by examining also the two witnesses to the divorce.
Identity of person appearing as witness.- The Moslem Registrar shall satisfy himself of the identity of persons appearing before him as witnesses
of marriage or divorce, unless they are otherwise personally known to him, by examining at least one witness to the identity of each person so
appearing.
Entry of marriage or divorce in register to be signed.- When the entry of the marriage of divorce has been made in the proper register, it shall be
read over by the Moslem Registrar to the person who, by Section 10 of the Act, are required to sign such entry. If they admit its correctness, the entry
shall then be signed by them.â€
The word “Muslim†was substituted for the word “Moslem†in the 1935 Act. However, it does not appear that any substitution has taken
place for the word “Moslem†in the 1935 Rules.
A perusal of the definition of “Muslim Registrar†means any person who is dulyauthorized under the 1935 Act to register Muslim marriage
and divorce. Section 3 of the 1935 Act provides that the State Government may grant a licence to any Muslim person authorizing him to register
Muslim marriages and divorces. From the above, it is crystal clear that role of a Muslim Registrar of Marriages and Divorces is to register marriages
and divorces. Duties of Muslim Registrar of Marriage and Divorce are laid down in Section 9 of the 1935 Act. In the event of his satisfaction in
respect of the clauses mentioned at Section 9(a), (b) and (c), he has to make an entry of the marriage or divorce in the proper Register.
On completion of the registration of any marriage or divorce, the Muslim Registrar, in terms of Section 11, is enjoined to deliver to each of the
applicants for registration an attested copy of the entry and for such copy, no charge shall be made. The form of Register of divorces other than those
of the kind known as “Khula†is given in Schedule II in Form (B) of Book-II.
The provisions of the 1935 Act and the 1935 Rules do not empower the Registrar ofMarriage and Divorce to issue notice requiring any of the
parties to a marriage or divorce to appear before him. When he has no authority to issue notice, the respondent No. 3 acted without any authority of
law and beyond jurisdiction while issuing notices to the petitioner for appearance before him. What is worse, the respondent No. 3 had issued notices
through Chandmari Police Station. It is not understood how the Chandmari Police Station could have executed notices issued by the Registrar of
Muslim Marriage and Divorce. The plea taken by the respondent No. 3 that he had attempted reconciliation on being approached by the respondent
No. 4 does not commend for acceptance. He may be free to volunteer his services as an individual to attempt reconciliation between the husband and
wife but not in his official capacity as Registrar of Muslim Marriage and Divorce. Any such attempt will amount to colourable exercise of power.
The provisions of the 1935 Act and the 1935 Rules do not empower a Registrar of Muslim Marriage and Divorce to issue Divorce Certificate
either. A Muslim Registrar of Marriage and Divorce is only to deliver to each of the applicants for registration of any marriage or divorce an attested
copy of the entry to be made in the appropriate Register. Issuance of Divorce Certificate is not envisaged and such act of the respondent No.3 in
issuing Divorce Certificate falls foul with the provisions of the 1935 Act and the 1935 Rules.
In Jiauddin Ahmed (supra), this Court had held that mere registration of divorce or marriage even if proved, will not render valid a divorce which is
otherwise invalid in law. In Shamin Ara (supra), the judgment of this Court in Jiauddin Ahmed (supra) was quoted with approval.Â
In Shayara Bano (supra), a Constitution Bench of the Supreme Court had essentially dealt with the question as to whether triple talak has any legal
sanctity.
In the writ petition, the prayer made is as follows:-
       “Under the facts and circumstances it is most respectfully prayed that Your Lordships would graciously be pleased to admit this
application, call for the records of the case and issue a Rule to show cause as to why an appropriate writ in the nature of Mandamus should not be
issued against the entire process of talak initiated by Respondent No.3 and directing the Respondent Nos.2 and 3 to cancel, recall or otherwise forbear
from giving effect to the impugned registration of the process of talak and declare the entire process as void and imperative in law.â€
A perusal of the prayer goes to show that there is no challenge to the talak given by the respondent No. 4 and Ms. Hussain has also submitted that
the petitioner will initiate appropriate proceeding challenging the talak. Having regard to the issues raised by the petitioner, I am of the opinion that this
Court ought not to probe validity of the talak given by the respondent No.4 though the learned Advocate General had submitted that it may be
permissible for this Court to venture into that arena.
If the challenge to talak made by the petitioner is upheld, automatically, registration of divorce by the respondent No. 3 will be rendered
inconsequential. That apart, the petitioner can also seek a declaration that the registration of divorce by the respondent No. 3 is inoperative in law in
the proceeding where talak is questioned. Therefore, this Court is of the considered opinion that in the factual matrix, as unfolded, this Court need
not go into the issue relating to registration of the divorce.Â
In view of the above discussions, the writ petition is disposed of declaring that issuance of notice by the respondent No.3 to the petitioner, that too,
through the police station, is without any authority of law and without jurisdiction. The respondent No.3 is Page No.#
directed not to issue any notice requiring any party to a marriage to appear before him. The respondent No.3 is further directed not to engage in any
reconciliation proceeding in his capacity as Registrar of Muslim Marriage and Divorce. The respondent No.3 is further directed to issue only the
extract of the entry in the Register of divorce and not any Divorce Certificate as has been issued in the instant case.
The petitioner will be at liberty to assail the talak given by the respondent No.4 in accordance with law.
For the services rendered by Ms. Hussain, she will be paid a fee of ` 7,500,/- (Rupees Seven Thousand Five Hundred) by the Gauhati High Court
Legal Services Authority.
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