Muslim Male Cannot Seek Divorce Under Dissolution Of Muslim Marriages Act But Has Remedy Under Family Courts Act: MP High Court

The Madhya Pradesh High Court has made it clear that even though a Muslim man has no way to seek divorce under the Dissolution of Muslim Marriages Act, 1939, he is not rendered remediless in law and he can seek recourse under Section 7 of the Family Court Act, 1984 to seek divorce from his wife.

The division bench of Justice Anand Pathak and Justice Hirdesh observed,

"it appears from perusal of the provisions as contained into the Act of 1939 that a male does not have any way to obtain the decree for dissolution of marriage. For that purpose, one has to take recourse to the Act of 1984."

Section 7 of the 1984 law contemplates that Family Court can entertain proceedings and pass orders or injunctions in circumstances arising out of a marital relationship.

The Court held that since this provision does not distinguish on the basis of Caste and Community, therefore, it is all pervasive in nature and can be availed by Muslim men to seek divorce.

“…so far as Shariat Act is concerned for realization of the issue (like divorce in the present case) has to be regulated through procedure as prescribed in the Act of 1984 as well as High Court of Madhya Pradesh Family Court Rules. Therefore, the procedure established by law is clear that a Muslim male can sue a suit or proceeding for dissolution of marriage on the grounds as available to him”, the Court said.

The development comes in an appeal filed under Section 19 of the Family Court Act, 1984 against the Family Court order dismissing Appellant's suit for divorce under Section 7 of the Family Courts Ac on grounds of adultery. As per the Trial Court, suit at the instance of a party seeking divorce under Muslim law is not maintainable.

The counsel for the appellant relied on Section 7(1)(d) of the Family Courts Act which provides that a suit or proceeding for an order and injunction in circumstances arising out of a marital relationship can be heard by the Family Court.

The counsel further submitted that Rule 9 of the High Court of Madhya Pradesh Family Court Rules, 1988 empowers the High Court to issue instructions in relation to registration of fresh suits or proceedings arising out of personal law applicable to Muslims including the Muslim Personal Law (Shariat) Application Act, 1937 and Dissolution of Muslim Marriages Act, 1939. Thus, there is ample power entrusted upon the Family Court by the statutes to entertain the application for divorce of a Muslim male.

The Court referred to Section 2 of the Act of 1939 which provides a married woman under Muslim Law the right to obtain a decree for dissolution of her marriage. However, under Act of 1939, a male does not have any way to obtain the decree for dissolution of marriage. For this purpose, the court referred to Section 7(1)(Explanation)(d) of the Family Courts Act, 1984 which contemplates that a suit proceeding which can be entertained by Family Court if the said suit or proceeding is for an order or injunction in circumstances arising out of a marital relationship.

The court thereafter, referred to Rule 9(2)(vii) of the High Court of Madhya Pradesh Family Court Rules, 1988 which is framed in respect of suit or proceeding arising out of personal law applicable to Muslims including the Shariat Act and the Act of 1939. The court observed that so far as Shariat Act is concerned for realization of the issue like divorce, it has to be regulated through procedure as prescribed in the Act of 1984 as well as High Court of Madhya Pradesh Family Court Rules.

The court placed reliance on a judgement of a division bench of MP High Court in Aqeel Ahmed (Khan) Vs. Smt. Farzana Khatun which considered the question of maintainability as well as settlement reached between the parties and allowed the appeal preferred by the parties on the basis of settlement reached between them. “Therefore, it can be held that parties have additional forum of this Court also to get the decree for divorce/dissolution of marriage.”, the Court said.

The court observed, “Even the Constitutional Morality and its Spirit also mandates that no person can be rendered remediless. If the reasoning of trial Court would have been accepted, then a muslim male would have been denied the valuable right to access justice or judicial forum to ventilate his grievances. This could never have been the Constitutional spirit, morality and Constitutional Vision of Justice.”

Thus, the court opined that the Trial Court has erred in rejecting the application for dissolution of marriage on the ground of maintainability.

The impugned judgement was thus, set aside and the matter was remanded back to the Family Court for adjudication.

Case Title: Mohammad Shah Vs. Smt. Chandani Begum, First Appeal No. 1199 Of 2022

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