CIVIL REVISION No.535 OF 2002
SHAHIN WAFA --- --- Petitioner
Versus
WAJIH AHMAD --- --- Opposite Party
For the petitioner: Mr. Amit Kr.Anand, Advocate.
For the opposite party: None
PRESENT
THE HON'BLE MR. JUSTICE S.N.HUSSAIN
S.N.Hussain,J. Heard learned counsel for the petitioner. No one appears for the opposite
party, although notices have been validly served and the names of his lawyers appear
on the daily cause list.
2. This civil revision has been filed by the defendant-petitioner challenging
order dated 11.03.2002 passed in Title Suit no.135 of 2001 by which the learned
Munsif, Sadar Purnea, rejected the petition of defendant-petitioner under the provision
of Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as the
‘Code’ for the sake of brevity) for dismissing the suit filed by the plaintiff-opposite
party without any proper cause of action.
3. The aforesaid suit was filed by the plaintiff -opposite party for declaration
that plaintiff had already divorced the defendant on 09.06.2001 by pronouncement of
three divorce and for other ancillary reliefs. During the pendency of the suit the
defendant-petitioner appeared and filed a petition under the provision of Order VII
Rule 11 of the Code for dismissing the suit filed by the opposite party without any
proper cause of action as the suit was not even maintainable as per the provisions of
Mohammedan Law according to which there is no provision for the husband to file a
suit for grant of divorce because the husband had absolute right to divorce and the
defendant had already admitted the divorce with effect from 18.06.2001. A rejoinder
was filed on behalf of the plaintiff on 15.01.2002 against the defendant-petitioner
stating that defendant only wants to delay the process of the suit.
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4. The said petition filed by the defendant has been rejected by the learned
court below by the impugned order dated 11.03.2002 on the ground that since the
divorce was given by the plaintiff to the defendant in absence of defendant and in the
said circumstances, the communication of divorce to the defendant was necessary and
when the plaintiff tried to communicate the divorce to the defendant then the plaintiff
was threatened by the defendant by false implication and hence in the said
circumstances, the plaintiff had no option except to file the suit for confirmation of
divorce to the defendant.
5. From the facts and circumstances of the case as well as from the materials
on record, including the impugned order, it is quite apparent that under the provisions
of Mohammedan law, the husband has absolute authority to divorce his wife and
there is no occasion for filing a suit for declaration of divorce. In the instant case
when the defendant herself has admitted the divorce with effect from 18.06.2001,
there was no dispute left with respect to the factum of divorce and there was no
occasion for getting a decree of divorce from the court as divorce had already taken
effect prior to the filing of the suit as per the admission of the defendant herself. In
the said circumstances, the defendant was quite right in her submission that there was
no cause of action for the suit and the plaint had to be rejected under the provision of
Order VII Rule 11 of the Code. Furthermore, the plaintiff should not be encouraged to
harass the defendant even after divorce by dragging her unnecessarily to the court.
6. In the aforesaid facts and circumstances, the impugned order of the learned
court below suffers from serious illegality and jurisdictional error and is accordingly
set aside and this civil revision is allowed with a direction to the learned court below
to pass an order afresh in accordance with law keeping in view the aforesaid
observations/directions.
(S.N.Hussain,J.)
Patna High Court, Patna
Dated, 23rd April, 2008
Sunil/N.A.F.R