Staff Reporter
Guwahati: The Gauhati High Court passed a ruling that a civil judge cannot declare the talaq (pronouncing of divorce) given by a Muslim husband to his wife to be valid in a declaratory relief suit, and that the appropriate court with jurisdiction over matrimonial matters must be approached for such relief. The HC upheld the decision of the civil judge (senior division)/appellate court on the ground that the lower civil court lacked the jurisdiction to grant a divorce.
Justice Mitali Thakuria was dealing with an appeal (Case No.: RSA/131/2025) filed by a husband who had earlier approached a civil court for a declaration that his marriage stood dissolved after he gave talaq to his wife. In the present case, it is the plea of the appellant that he has not sought for any decree of divorce or talaq before the Court of Civil Judge (Jr Div.), Hailakandi. It is the further claim of the appellant that on three consecutive dates, i.e., on November 12, 2023, December 17, 2023, and January 30, 2024, the appellant had already given written talaq to the respondent, and even after service of those three notices, the respondent did not return to her matrimonial house, and thus the talaq is complete within the meaning of talaq-e-hasan.
Talaq-e-Hasan is a classical Islamic divorce method where a man pronounces “talaq” (I divorce you) once a month for three consecutive months, with a mandatory one-month gap (or period of abstinence/iddat) between pronouncements, ensuring no conjugal relations.
The Court of Civil Judge (Jr. Div.), Hailakandi, had passed a ruling to dissolve his marriage after confirming the talaq he gave his wife. However, the Court of Civil Judge (Sr Div), Hailakandi, or the District Court set aside this ruling on the ground that the lower civil court lacked the jurisdiction to grant a divorce.
This prompted the husband to file an appeal before the High Court. Upholding the District Court’s judgement, the High Court noted that it was not a simple case where the husband had merely sought a declaration under Section 34 of the Specific Relief Act from the civil court. Rather, the husband was praying for a decree of divorce, which the civil court did not have jurisdiction to grant, the High Court observed.
The Court stated, “It is a settled law that the family disputes, the dissolution of marriage, decree of divorce under the Hindu Marriage Act or the Special Marriage Act can only be entertained by the Family Court under Sections 7 & 8 of the Family Courts Act, 1984, and in the absence of the Family Court, the District Court can examine the matters.”
The “District Court” with family jurisdiction would be a Principal Civil Court of original jurisdiction, the Court explained.
In 2024, the husband had moved a civil judge (junior division) for a declaration of dissolution of marriage on the basis of the talaq he had given his wife on three occasions, along with a decree for the confirmation of a written divorce. A judge allowed his plea in May 2025.
However, the decision was later set aside by a district or senior civil judge on the wife’s appeal. The civil judge (senior div.) ruled that the lower court had no jurisdiction to entertain such a suit.
The husband then moved the High Court and argued that his suit did not seek a decree of divorce but only a declaration that the divorce he had given his wife was valid.
Disagreeing with the contention, the High Court concluded that in the name of a declaratory suit, the husband had sought a divorce decree. The civil judge (junior division) had no such authority or power to pass any decree of divorce/talaq, it added.
“Thus, this Court is of the opinion that the learned appellate Court did not commit any error or mistake while disposing of the appeal on the point of jurisdiction with a further direction to the parties to approach the appropriate forum, seeking any relief of divorce/talaq. Further, the appellate court had rightly observed that the decree passed by the learned Civil Judge (Jr. Div.), Hailakandi, can be considered as a nullity due to lack of jurisdiction, and hence, the question of discussion on merit on the other issues also does not arise,” the court further said.
The High Court ruled that the district or appellate court had rightly directed the husband to approach the competent authority for divorce. Accordingly, the HC dismissed the husband’s appeal.
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