Razia vs Sameer

Ramesh Ranganathan, CJ

The application, seeking condonation of delay of 125 days in preferring this Appeal, is not opposed by Mr. Siddharth Singh, learned counsel for the

respondent, and the delay is, therefore, condoned.

This appeal is preferred by the appellant against the order dated 25.02.2017 passed in Case No. 506 of 2016 by the Family Court, Haridwar. The

court below, by its order dated 25.02.2017, decreed the petition evidently under Section 3 of the Dissolution of Muslim Marriage Act, 1939 (hereinafter

referred to as ‘the 1939 Act’), and dissolved the marriage. While the decree of the court below makes no reference to any particular law, it

does appear that the court below had granted the decree under Section 3 of the 1939 Act.

Section 2 of the 1939 Act confers a right on a woman, married under the Muslim law, to obtain a decree for dissolution of marriage on any one of

the grounds referred to therein. The right conferred by the 1939 Act is on a Muslim woman, and not on a Muslim male. It does appear that the court

below has exceeded its jurisdiction, in granting a decree of dissolution of the marriage under the 1939 Act, at the behest of the husband.

Mr. Siddhartha Singh, learned counsel for the respondent, would contend that the Muslim Law permits the husband and the wife to enter into an

agreement providing for dissolution of marriage between them; the respondent-petitioner’s claim for dissolution of marriage was in terms of the

agreement; and while the court below may not have been justified in granting a decree, of dissolution of marriage, under the 1939 Act, that would not

disentitle the respondent-petitioner from seeking dissolution of marriage in terms of the agreement.

While it does appear that a plea was taken by the respondent, in his petition before the court below, that the parties had mutually agreed in writing

for the dissolution of the marriage, the stand taken by the respondent was that the said agreement was obtained on misrepresentation and concealment

of material facts.

While we agree with Mr. Siddhartha Singh, learned counsel for the respondent, that these all matters on which issues ought to have been framed,

and evidence should have been led, the fact remains that no such issues were even framed by the court below, much less were the parties permitted

to adduce evidence on such issues.

Mr. Siddhartha Singh, learned counsel for the respondent, would then request that the matter be remanded to the court below directing them to

frame issues afresh, permit the parties to adduce evidence, and thereafter decide the matter in accordance with law.

While we see no reason, at this belated stage, to reopen the entire proceedings before the court below, suffice it, with a view to protect the interests

of the respondent-husband also, to leave it open to him to seek divorce in terms of the agreement entered into between the parties. In case any such

proceedings are instituted by him, the concerned court shall adjudicate the lis on its merits, uninfluenced by the observations made by us in this order.

Subject to aforesaid observations, the appeal is allowed, and the order under appeal is accordingly set aside.