Naib Nazir Cannot Decide Maintainability Of Plea For Mutual Divorce, Should Be Left To Discretion Of Family Court: MP High Court
Anukriti Mishra
8 Jan 2025 5:30 PM IST
The Indore Bench of Madhya Pradesh High Court has held that a Naib Nazir cannot decide the maintainability of an application and should leave it to the discretion of the Court. The court thus, directed the Naib Nazir to refrain from making such endorsements on applications filed by the parties.
Naib Nazir is a member of the Nazarat, which is a process serving agency of the district courts.
A single-judge bench of Justice Subodh Abhyankar observed, “…the aforesaid rejection of the petitioners' application at the threshold cannot be countenanced in the eyes of law. The maintainability of an application cannot be decided by the Naib Nazir for whatever be the reasons, thus apparently, the Naib Nazir clearly exceeded his jurisdiction to refuse to accept the application filed by the petitioners.”
Grievance of the petitioner was that they had filed an application for mutual divorce under Section 13-B of the Hindu Marriage Act, 1955 which was refused by the Naib Nazir of the Family Court, endorsing that they have not yet completed one year of marriage.
The couple had solemnized marriage on 09.07.2024 and the application was filed on 13.11.2024, i.e. only after four months of their marriage, on the ground that they are residing separately since 16.08.2024.
The counsel for the petitioners submitted that the application filed by the petitioners was not even allowed to be placed before the concerned Judge of the Family Court for its proper disposal in accordance with law, which has resulted in miscarriage of justice.
The court took notice of the fact that the couple filed the divorce application only after four months of their marriage, on the ground that they are residing separately since 16.08.2024. Thereafter, the court opined that by rejecting petitioners' application, the Naib Nazir exceeded his jurisdiction, thus, the endorsement made by him was liable to be struck off.
“The endorsement made by the Naib Nazir is hereby directed to the struck off by the concerned Judge of the Family Court after accepting the petitioners' application, and decide the same in accordance with law.”, the Court said.
The court, hence, allowed the present petition with a further direction to the Naib Nazir to refrain from making such endorsements on applications filed by the parties and leave it to the discretion of the Court only.
Case Title: Smt. Yashika Shah and Others versus The Registrar, Writ Petition No. 36223 of 2024
Counsel for Petitioner: Adv. Abhinav Dhanodkar