Created by Fuzzy Cloud

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

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
                                             2/5




          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
                                            3/5




          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
                                            4/5




          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
           Patna High Court MA No.315 of 2024(6) dt.17-03-2026
                                                       5/5




                     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


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.