In an appeal filed before the Gauhati High Court under Section 100 of the Code of Civil Procedure, 1908 (CPC), against a judgment and decree passed by Civil Judge (Sr. Div.), whereby the judgment and decree passed by Civil Judge (Jr. Div.) was set aside, a Single Judge Bench of Justice Mitali Thakuria affirmed the opinion in the impugned judgment and dismissed the present appeal for being devoid of merit.
The appellant had filed a matrimonial suit before the Civil Judge (Jr. Div.), wherein dissolution of marriage was prayed for by way of talaq, along with a decree confirming the written divorces granted by the appellant on three occasions. The Civil Judge (Jr. Div.) dissolved the marriage as prayed and confirmed the written talaq executed by the appellant.
Thereafter, the respondent preferred an appeal against the said judgment. It was alleged that the Appellate Court had, without discussing the merit of the case, allowed the appeal only with the view that the Civil Judge (Jr. Div.) had no jurisdiction to entertain a case of such nature.
The Court framed a substantial question of law in the present matter – whether the lower appellate court had rightly set aside the judgment and decree passed by the Civil Judge (Jr. Div.) on the ground of jurisdiction in the absence of a jurisdictional Family Court.
The Court noted that the appellate court had held that, in the absence of a Family Court, the District Court was competent to deal with matrimonial issues, and that the Civil Judge (Jr. Div.) lacked the jurisdiction, competency, or authority to deal with such cases.
It was noted that the appellant had given written divorces to the respondent on three dates and that even after service of three notices, she did not return to her matrimonial home, which completed the talaq within the meaning of talaq-e-hasan. However, the Court noticed that while passing the decree, the Civil Judge (Jr. Div.) had passed a decree to dissolve the marriage between the parties while confirming the talaq executed by the appellant.
Hence, the Court stated that, in the garb of a declaration of valid talaq, the Civil Judge (Jr. Div.) had authenticated the divorce. It was said that in the absence of a Family Court in the district, the only competent authority to deal with a matrimonial matter is the District Judge or the Civil Court. The Court held that the Civil Judge (Jr. Div.) had no authority or power to pass any decree of divorce.
Further, the Court opined that the appellate court did not commit an error in disposing of the appeal for lack of jurisdiction, and that it had rightly observed that the decree passed by the Civil Judge (Jr. Div.) could be considered null. Thus, the Court dismissed the present appeal.
Appearances:
For Appellant – Mr. A.K. Hannan, Mr. M.J. Quadir
For Respondent – Ms. S.K. Laskar, Mr. S.R. Barbhuiya, Mr. M. Hussain, Mr. N. Haque, Mr. A.K. Azad
