High Court Patna High Court

Shahin Wafa vs Wajih Ahmad on 23 April, 2008

Patna High Court
Shahin Wafa vs Wajih Ahmad on 23 April, 2008
Author: S.Nayer Hussain
                                 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.
2

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