Korba, Chhattisgarh v. Mohsin Khan, S
Case Details
-1- Digitally signed by NADIM MOHLE 2025:CGHC:14545 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 268 of 2021 1- Gulnaaz Akhtar, D/o Shri Pehalwan Hussain, W/o Shri Mohsin Khan, Aged About 30 Years R/o. Village - Tuman, Police Station And Tehsil - Katghora, District - Korba Chhattisgarh. 2- Nashibun Nisha, W/o Shri Pehalwan Hussain, Aged About 50 Years R/o. Village - Tuman, Police Station And Tehsil - Katghora, District - Korba Chhattisgarh.
Legal Reasoning
3- Pehalwan Hussain, S/o. Late Shri Peela Babu Khan, Aged About 60 Years R/o. Village - Tuman, Police Station and Tehsil - Katghora, District – Korba, Chhattisgarh. ... Petitioner(s) versus Mohsin Khan, S/o Shri Maqsood Khan, Aged About 32 Years Caste - Muslim, R/o.- Ekta Nagar, Tehsil Chowk, Pendra Road, Police Station - Pendra Road, District - Gaurela - ... Pendra - Marwahi, District : Gaurela-Pendra-Marwahi, Chhattisgarh. Respondent(s) (Cause Title is taken from Case Information System) For Petitioners : Mr. Surfaraj Khan, Advocate with For Respondent : Mr. Sakib Ahmed, Advocate Mr. Rishi Sahu, Advocate Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board -2- 26.03.2025 1) The present petition has been filed by the petitioners (wife, mother-in-law, and father-in-law) challenging the entire proceedings (Annexure P/1) initiated by the learned Additional District Judge, Pendra Road, District Gaurela-Pendra-Marwahi (C.G.) in Civil Suit No. 02/2021 (Mohsin Khan v. Gulnaaz Akhtar & Others). 2) Mr. Surfaraj Khan, learned counsel appearing for the petitioners would submit that petitioner No.1 and respondent were married on 12.10.2014 as per Muslim rites and there is a daughter Mahira Khan born from their wedlock. It is submitted that the wife/petitioner No.1 was subjected to cruelty, domestic violence, and dowry demands by the husband, which led to her being driven out of the marital home. It is further submitted that despite efforts from family and society to reconcile, the husband continued mistreating her and questioning her character. It also argued that on 17.03.2020, the husband filed a suit for restitution of conjugal rights before the learned Additional District Judge, Pendra Road, which was registered as Civil Suit No. 02/2021. Learned counsel argues that the petitioners filed this writ petition on the ground that restitution of conjugal rights is not recognized under Muslim law and that the learned trial court has no jurisdiction. It is argued that the said Court is not empowered under the provisions of law to entertain the suit for restitution of conjugal rights in the absence of any provision in this regard. He would further submit that the proceedings are illegal and void-ab-initio, and the same may be quashed. -3- 3) On the other hand, Mr. Sakib Ahmed, learned counsel appearing for the respondent would oppose the submissions made by learned counsel for the petitioners and submit that according to the provisions of Section 281 of Mulla's Principles of Mohammedan Law, a husband can sue his wife for the restitution of conjugal rights if she has withdrawn from cohabitation without a lawful cause, as a marriage is considered a civil contract, and the suit enforces the right to consortium. He would also submit that the Family Courts Act, 1984, empowers family courts to deal with matters related to restitution of conjugal rights, including cases involving Muslim personal law, as the Act's jurisdiction extends to all communities, including Muslims. In support thereof, he placed reliance on the judgment passed by the High Court of Tripura in the matter of MD Deepraj Sarkar son of Md. Mia Sarkar v. Tahima Aktar wife of Md. Deepraj Sarkar reported in 2024 LawSuit (TR) 317 and prayed that the instant writ petition may be dismissed. 4) Heard learned counsel for the parties and perused the documents placed on the file. 5) The High Court of Tripura in the matter of MD Deepraj Sarkar son of Md. Mia Sarkar (supra), has held that from a perusal of the Statement of Objects and Reasons of the Family Courts Act, 1984, it is evident that the Act confers exclusive jurisdiction upon Family Courts to adjudicate matters relating to matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, and declarations concerning the matrimonial status of any person. The relevant para- 14 to 18 are reproduced as under:- “14. For proper adjudication of the matter, let us produce Section 281 of the Mulla Principles of the Mohammedan Law:- -4- " 281- Suit for restitution of conjugal rights (1) Where a wife without lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights." 15. Further, the following sections and the objects and reasons provided in the Family Courts Act, 1984, which are relevant to the facts of this case, are as follows:- " State of objects and Reasons.- ......................................(d).exclusively provide within the jurisdiction of the family Courts the matters relating to:- (i) matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, or declaration as to the validity of a marriage or as to the matrimonial status of any person; (ii) the property of the spouses or of either of them; iii) declaration as to the legitimacy of any person; (iv) guardianship of a person or the custody of any minor; (v) maintenance, including proceedings under Chapter IX of the Code of Criminal Procedure;" 1. Short, title extent and commencement-(1) This Act may be called the Family Courts Act, 1984. (2) It extends to the whole of India. 7. .Jurisdiction. (1) Subject to the other provisions of this Act, a Family Court shall (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation. The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- -5- a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;" 16. Having heard the arguments and perused the record, this Court finds that the order of the trial court dismissing the suit on the ground of non-maintainability due to the parties being governed by Mohammedan law is not sustainable in law. The trial Court observed that since the parties belonged to the Mohammedan community, their personal law would govern the matter. As such, the suit for restitution of conjugal rights was deemed non-maintainable. The Court believed that it lacked jurisdiction, stating that passing a judgment would amount to "transgressing the limits of its jurisdiction." However, The Family Courts Act, 1984, was enacted to establish specialized Courts to deal with matrimonial and family-related disputes. Section 7 of the Act clearly vests jurisdiction in Family Courts over suits related to matrimonial relief, including restitution of conjugal rights, nullity of marriage, judicial separation, divorce, and other related matters, regardless of the personal law governing the parties. The mere fact that the parties belong to the Mohammedan community does not oust the jurisdiction of the Family Court. Section 7 of the Family Courts Act, 1984, read with the Explanation, makes it abundantly clear that Family Courts have exclusive jurisdiction to entertain and decide matrimonial disputes, including those related to the restitution of conjugal rights. That unless by way of any expressed provision a person or community or religion is exempted by the law, it is reasonably presumed that law applicable to the law of the land is binding upon all citizens. Section 7(1)(a) of the Family Courts Act, states that "a Family Court shall have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law". Accordingly, Section 7(1)(a) of the 'Act' clearly indicates that the law of the land which is unless expressly prohibited, shall be dealt by the Courts. 17. In view of the Statement of Objects and Reasons of the Family Courts Act, 1984, it is evident that the Act confers exclusive jurisdiction upon Family Courts to adjudicate matters relating to matrimonial relief, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, and declarations concerning the matrimonial status of any person. Therefore, the lower Court's dismissal of the suit was contrary to the express jurisdictional mandate of the Family Courts Act, 1984, which clearly provides for the exclusive jurisdiction of Family Courts over matters such as matrimonial relief, property -6- disputes, legitimacy, guardianship, custody, and maintenance, and applies uniformly across all communities, including Muslims. The Act does not exclude any community from its purview, and as such, the suit was maintainable under the Act. 18. The provision in Section 1(2) of the Family Courts Act, 1984, stating that the Act "extends to the whole of India," ensures that the Act applies uniformly across all regions and communities. This means that matrimonial disputes, regardless of the personal law governing the parties, are to be adjudicated by Family Courts according to the Act's procedural framework.” 6) In the present case, the marriage between petitioner No.1 and respondent was solemnized on 12.10.2014; there is one daughter from their wedlock; on 17.03.2020, the husband filed a suit for restitution of conjugal rights before the Additional District Judge, Pendra Road; the same was registered as Civil Suit No. 02/2021; the present writ petition has been filed primarily on the ground that restitution of conjugal rights is not recognized under Muslim law and that the learned Court below has had no jurisdiction to entertain that suit. 7) Taking into consideration the fact that the Family Courts Act, 1984, confers exclusive jurisdiction upon Family Courts to adjudicate matrimonial matters, including nullity of marriage, judicial separation, divorce, restitution of conjugal rights, and declarations concerning matrimonial status; further, Section 1(2) of the Act, extends its applicability to the whole of India, ensures uniform enforcement across all regions and communities; it establishes that every matrimonial dispute, irrespective of the personal law governing the parties, must be adjudicated by Family Courts in accordance with the procedural framework prescribed by the Act; the Mohammedan Law by Mulla also recognizes the suit for restitution of -7- conjugal rights; also the High Court of Tripura has laid down the law that a petition for restitution of conjugal rights is maintainable before the Family Court, in the considered and firm opinion of this Court, no case is made out for interference. Accordingly, this petition fails and is hereby dismissed. No cost(s). 8) Interim relief granted earlier is hereby vacated. Sd/- (Rakesh Mohan Pandey) Judge NADIM