The Allahabad High Court quashed a family court’s divorce order after noting it was passed under a non-existent law, observing that the judge repeatedly cited the “Muslim Women Marriage Dissolution Act, 1986” instead of the Dissolution of Muslim Marriages Act, 1939.
The Allahabad High Court quashed a divorce order granted by a family court to a Muslim woman, observing that the ruling was passed under a law that does not exist.
A Division Bench comprising Justice Atul Sreedharan and Justice Vivek Saran noted that no such legislation exists in India.
The family court in Banda had held that the marriage stood dissolved under the Muslim Women Marriage Dissolution Act, 1986.
The High Court observed that although the family court may have intended to cite the Dissolution of Muslim Marriages Act, 1939, it repeatedly cited the incorrect and non-existent statute in its judgment.
The Bench said,
“In the present case, after giving the cause title, the learned Trial Court records that the decision has been passed under the Muslim Women Marriage Dissolution Act, 1986. Such a law does not exist in any statute. What perhaps the learned Trial Court intended was to refer to the Dissolution of Muslim Marriages Act, 1939. Thereafter, the entire judgment has referred to the pleadings and evidence that were recorded during the course of the trial, but wherever the law had to be referred to, the learned Trial Court has repeatedly made the error of referring to the same as “मुस्लिम स्त्री विवाह विच्छेद अधिनियम, 1986”,
The Bench added,
“Which is already stated hereinabove, does not exist,”
The Court further noted that merely mentioning the wrong legal provision does not automatically invalidate an order, but in this case the trial court’s mistake was not confined to one instance. It repeatedly relied on the non-existent law throughout the decision.
The Bench also remarked that the senior district judge presiding over the family court was casual in drafting the judgment. It emphasised that it is the family court’s responsibility to ensure the statute it cites actually exists.
The Bench further said,
“Had the error been typographical error in an innocuous place of the order, the same could have been ignored by this Court. However, repeatedly referring to a statute that does not exist and that by holding the respondent-wife eligible to partial relief under a non-existing law, renders the judgment bad in law and facts,”
The decision was issued in an appeal filed by the husband. The wife had been granted divorce on January 28.
The husband’s counsel argued that the family court should not have entertained the claim under the Muslim Women Marriage Dissolution Act, 1986, since such a law does not exist. It was pointed out that the plaint seemed to have been filed under the Muslim Women (Protection of Rights on Divorce) Act, 1986, which is meant to protect the rights and assets of Muslim women who have already been divorced.
There is actually no law in India called the “Muslim Women Marriage Dissolution Act, 1986.”
The confusion happens because two different statutes are often mixed up. The correct law for seeking divorce is the Dissolution of Muslim Marriages Act, 1939, which clearly lists the grounds on which a Muslim woman can approach the court to end her marriage. On the other hand, the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not deal with granting divorce at all; it only covers the rights of a Muslim woman after divorce, such as maintenance, mehr, and matters related to the iddat period. Courts have repeatedly clarified that mixing these two laws or relying on a non-existent Act like the “Muslim Women Marriage Dissolution Act, 1986” is a serious legal mistake.
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The counsel submitted that the woman’s case for dissolution of marriage should instead have been under the Dissolution of Muslim Marriages Act, 1939.
After hearing the arguments, the High Court set aside the divorce order and sent the matter back to the family court for a fresh decision based on the correct provisions of law.
The Court clarified that it was not ordering a complete retrial.
Advocate Moeez Uddin represented the husband.
Advocates Kameshwar Singh and Sudhanshu Kumar Singh represented the respondents.
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