Patna High Court
Md. Zakir HussainversusNikhat Perween
- Decided
- Disposal
- DISMISSED
Holding
The appeal is dismissed and the trial court's dismissal of the divorce suit is affirmed.
Summary
The appellant, Md. Zakir Hussain, filed a divorce suit in 2014 seeking a declaration that his marriage had been dissolved by pronouncing a 'Triple Talaq' under the Hanafi school of law. The trial Family Court dismissed the suit for lack of proof of the talaq, and the appellant appealed. The High Court, hearing ex parte as the respondent did not appear, examined whether the suit was maintainable given the Supreme Court's declaration in Shayara Bano v. Union of India that triple talaq is unconstitutional, and whether the Family Court was obliged to attempt reconciliation. The Court held that the suit was merely declaratory of a divorce already effected, rendering reconciliation irrelevant, and affirmed the trial court's dismissal. Consequently, the appeal was dismissed, leaving the trial court's judgment intact.
Issues considered
- Whether a suit for declaration of divorce by 'Triple Talaq' is maintainable after the Supreme Court declared triple talaq unconstitutional.
- Whether the Family Court erred by not attempting reconciliation under Section 9 of the Family Courts Act, warranting setting aside of the trial court's judgment.
- Whether the trial court correctly dismissed the suit for failure to prove the pronouncement of talaq.
Legislation cited
- Family Courts Act — s. 9
Subjects
- divorce
- triple talaq
- family law
- declaratory suit
- reconciliation
- Family Courts Act
- unconstitutionality
- ex parte
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.315 of 2024
======================================================
Md. Zakir Hussain son of Late Zainul Abedin, resident of village- Sadhua,
Police Station- Rangra Chowk, District- Bhagalpur.
... ... Appellant/s
Versus
Nikhat Perween daughter of Md. Ismayeel, resident of Mohalla- Ishakchak,
Police Station- Ishakchak, District- Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Waliur Rahman, Advocate
Md. Najmul Hodda, Advocate
For the Respondent/s : Mr.
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
6 17-03-2026 We have heard the learned Advocate for the appellant.
2. In spite of service of notice, the respondent has not
turned up. Therefore, the instant appeal is taken up for hearing
ex parte and we proceed to deliver the following judgment.
3. The husband/appellant filed Divorce Suit No. 179
of 2014 before the learned Principal Judge, Family Court at
Bhagalpur with following reliefs:-
“ (i) The court be adjucated and declared
that the defendant is not wife of plaintiff
since 12.08.2013 the day of
pronouncement of divorce by the plaintiff
according to Hanfi School of
Mohammadan Law.
(ii) A decree of divorce be awarded.
(iii) Any after relief or reliefs, which the
court thinks fit and proper be awarded.”
(Reproduced from the plaint without changing the
Patna High Court MA No.315 of 2024(6) dt.17-03-2026
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spellings and grammatical errors.)
4. The wife/defendant appeared in the said suit and had
been contesting the suit by filing a written statement.
5. On the basis of the pleadings, the Trial Court
framed as many as five issues which are reproduced below:-
“4. On the consideration of pleadings of
the parties this court has framed
following issues on 28.01.2016:-
I. Is the matrimonial case as framed,
maintainable?
II. Has the petitioner valid cause of action
for filing the case?
III. Is the petitioner entitled for a decree
declaration of divorce as prayed for
against the respondent?
IV. Is the Opposite party/respondent a
legally wedded wife of the petitioner and
entitled for any permanent
alimony/maintenance along with her
minor son?
V. To what other relief or reliefs, if any,
the petitioner is entitled to?”
5. The appellant as plaintiff examined three witnesses
including himself and deposed that he had divorced his wife by
pronouncement of Talaq. The respondent-wife also examined
three witnesses in the Trial Court including herself while other
two witnesses are her neighbours, they denied the allegation of
pronouncement of Talaq by the plaintiff in course of their
Patna High Court MA No.315 of 2024(6) dt.17-03-2026
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evidence. The Trial Court on careful consideration of evidence
dismissed the said suit on the ground that the appellant failed to
prove the factum of Talaq. The impugned judgment was
pronounced on 12th March, 2024.
6. It is needless to say that declaration of divorce by
pronouncement of ‘Triple Talaq’ has been declared
unconstitutional by the Hon’ble Supreme Court in the case of
Shayara Bano Vs Union of India and Others reported in 2017
9 SCC 1.
7. The learned Trial Court also refers to another
decision of Gauhati High Court in the case of Ruquaiya
Khatoon Vs Abdul Kalique Lashkar reported in 1981 1 Gau
LR 375.
8. The learned Advocate on behalf of the appellant
submits that the judgment of the learned Trial Court does not
suggest that the learned Trial Court took effort to reconcile the
dispute between the parties. In support of his contention, the
learned Advocate for the appellant refers to Section 9 of the
Family Courts Act, where a duty is caste on the Family Court to
make endeavor to assist and persuade the parties in arriving at a
settlement in respect of the subject matter of the suit or
proceedings and should the Family Court feel that there is
Patna High Court MA No.315 of 2024(6) dt.17-03-2026
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reasonable possibility of settlement between the parties, the
proceedings have to be adjourned for a reasonable period to
enable the parties to effect such settlement, only if it comes to
the conclusion after the above exercise that the settlement is
impossible, then the case should be posted for further steps such
as written statement, counter issues, trial and so on. It is
contended on behalf of the appellant that no such step was taken
by the learned Trial Court and therefore, the impugned judgment
should be set aside and the case be remanded back to the learned
Trial Court for taking steps of settlement by and between the
parties.
8. In support of his contention, the learned Advocate
for the appellant also relies on the Family Court (Patna High
Court Rules, 2000) to show that the primary duty of the Family
Court is to conciliate the dispute between the husband and wife.
In other words it is submitted by the learned Advocate on behalf
of the appellant that the object of establishment of Family Court
is not adjudication of adversarial dispute but to maintain and
protect the family relationship between husband and wife, being
the nucleus of the society.
9. Having heard the learned Advocate on behalf of the
appellant and on careful perusal of the plaint filed by the
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appellant, this Court finds that the appellant did not come
forward before the Family Court praying for dissolution of
marriage by decree of divorce. The suit framed by the appellant
is in the nature of declaratory suit praying for declaration that
the appellant has divorced his wife by pronouncement of ‘Triple
Talaq’. In case of a declaratory suit for ratification of divorce
which has already been effectuated, according to the appellant,
contention of the learned Advocate for the plaintiff for failure on
the part of the learned Family Court to reconcile the dispute
between the parties falls flat because while divorce has been
effectuated, the question of reconciliation does not arise.
10. Moreover, the High Court rightly considered the
decision of the Apex Court in Shayara Bano’s case (supra).
11. For the reasons stated above, we do not find any
illegality to set aside the judgment and decree of dismissal by
the learned Trial Court.
12. The instant appeal is, therefore, dismissed.
(Bibek Chaudhuri, J)
(Chandra Shekhar Jha, J)
Jyoti Kumari/-
U
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