Allowed

Smti. Nahid Parbin Nishat v. the State of Assam and 4 Ors.

Gauhati HC2 Aug 2019WP(C)/6942/2016

Case brief

AI extract

What is this about?

The Gauhati High Court allowed a writ petition challenging the issuance of a first talak and ahsan talak registration by the Muslim Marriage and Divorce Registrar. Relying on the precedent Meriza Khatun, the court held the Registrar acted without jurisdiction or authority of law to issue notices, attempt reconciliation, or issue divorce certificates, declaring the talak registration void ab initio

What did the court decide?

Writ petition allowed; issuance of talak registered orders declared void ab initio; Registrar restrained from issuing notices, reconciliation opinions, or divorce certificates.

Smti. Nahid Parbin Nishat Vs the State of… — Pension and Retirement Benefits | Gauhati HC (2019)

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Page No.# 1/5

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GAHC010030042016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 6942/2016

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1:SMTI. NAHID PARBIN NISHAT

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W/O MR. SABIR NISHAT, R/O S.S. ROAD, LAKH TOKIA, GHY-1

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VERSUS

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1:THE STATE OF ASSAM AND 4 ORS

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REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, DEPTT. OF REVENUE REGISTRATION, DISPUR, GHY-6

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2:THE REGISTRAR CUM DY. COMMISSIONER KAMRUP P.O. and DIST- KAMRUP METRO ASSAM

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3:THE MUSLIM MARRIAGE AND DIVORCE REGISTRAR HATIGAON DIST- KAMRUP METRO ASSAM

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4:SABIR NISHAT INDRADHANI FLAT NO.6D BHANGAGARH GHY-5

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5:DWINA BARBARUAH C/O GUWAHATI DOORDARSHAN KENDRA R.G.B.ROAD ZOO ROAD GHY-

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Advocate for the Petitioner : MRS.S P HUSSAIN

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Advocate for the Respondent : MR. S DEKAR-5

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Page No.# 2/5

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BEFORE

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HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 02-08-2019

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Heard Mrs. S.P. Hussain, learned counsel for the petitioner. Also heard Ms. M.D. Bora, learned Govt. Advocate appearing for respondent No.2 and Mr. A.I. Uddin, the learned counsel for respondent No.3, Mr. A. Ganguly, learned counsel for respondent No.4 and Mr. T.H. Hazarika, the learned counsel for the respondent No.5.

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By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the impugned action on part of the Muslim Marriage and Divorce Registrar & Sadar Kazi, Guwahati (respondent No.3) in registering and issuing ahsan talak to the petitioner.

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The case projected by the petitioner is that she was married to the respondent No.4 herein on 10.12.1996. It is projected that on 20.07.2016, the petitioner had received a call from the respondent No.3, asking her to come to his office on 30.07.2016 and upon appearing, she was served with a copy of prayer made by the respondent No.4 to the respondent No.3 for amicable settlement of the marital dispute between the petitioner and the respondent No.4. Accordingly, the petitioner had submitted her written statement. On 17.09.2016, the petitioner was again called by the respondent No.3 and upon appearing, the respondent No.3 had proposed to the petitioner that if she divorced the respondent No.4, she would be paid a considerable amount of money. The said offer was refused by the petitioner. Thereafter on 13.10.2016, the police personnel from Panbazar P.S. served a talaknama to the petitioner, sent under the seal of the respondent No.3, by which the respondent No.4 had declared his first talak to the petitioner. Accordingly, the petitioner has approached this Court with a prayer for directing the respondent No.2 and 3 to cancel, recall or otherwise forbear from giving effect to the impugned registration of ahsan talak and first talak dated 22.09.2016 and to declare the entire process as void and inoperative.

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Page No.# 3/5

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All the learned counsel appearing for the respondents No.2 to 5 have made their respective submissions on the various aspects of ahsan talak and first talak. The points argued is not required to be elaborated because the issue raised by the petitioner is seen to be squarely covered by the decision of this Court rendered in the case of Meriza Khatun Vs. State of Assam, 2018 (4) GLT 380, which is heavily relied upon by the learned counsel for the petitioner. The relevant paragraphs 11 to 15, 20, 21, 27 and 28 is quoted herein below:-

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“11 Mr. Borpatragohain has cited the judgment of the Supreme Court in the case of Shayara Bano Vs. Union of India, reported in (2017) 9 SCC 1. The learned Advocate General, in no uncertain terms, has submitted that the respondent No.3 was acting arbitrarily and without any authority of law in issuing the notices. Drawing the attention of the Court to Para 7 of the affidavit of respondent No.3, he has submitted that it appears to him that the respondent No.3 was taking cudgels on behalf of respondent No.4 and had taken a biased and partisan stand against the petitioner. He submits that this Court can go into the question of validity of the talak given by the respondent No.4.

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I have heard the learned counsel for the parties and have perused the materials on record.

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Kazi Act provides that whenever it appears to the State that any considerable number of the Muhammadans resident in any local area desire that one or more Kazis should be appointed for such local area, the State Government may, if it thinks fit, after consulting the principal Muhammadan residents of such local area, select one or more fit persons and appoint him or them to be Kazis for such local area.

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From the short title of Kazi Act, it appears that it extended in the first instance, only to the territories administered by the Governor of Fort Saint George in Council. By virtue of amendment, it is also provided that the Government of any other State may from time to time, by notification in the Official Gazette, extend it to the whole or any part of the territories under its administration. Section 4 of the 1880 Act shows that no appointment made under Kazi Act, shall be deemed to confer any judicial or administrative powers on any Kazi.

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It has not been brought to the notice of the Court as to whether the State of Assam has extended the application of Kazi Act to the State of Assam.

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The provisions of the 1935 Act and the 1935 Rules do not empower the Registrar of

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Marriage and Divorce to issue notice requiring any of the parties to a marriage or divorce to appear before him. When he has no authority to issue notice, the respondent No. 3 acted without any authority of law and beyond jurisdiction while issuing notices to the petitioner for appearance before him. What is worse, the respondent No. 3 had issued notices through Chandmari Police Station. It is not understood how the Chandmari Police Station could have executed notices issued by the Registrar of Muslim Marriage and Divorce. The plea taken by the respondent No. 3 that he had attempted reconciliation on being approached by the respondent No. 4 does not commend for acceptance. He may be free to volunteer his services as an individual to attempt reconciliation between the husband and wife but not in his official capacity as Registrar of Muslim Marriage and Divorce. Any such attempt will amount to colourable exercise of power.

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The provisions of the 1935 Act and the 1935 Rules do not empower a Registrar of Muslim Marriage and Divorce to issue Divorce Certificate either. A Muslim Registrar of Marriage and Divorce is only to deliver to each of the applicants for registration of any marriage or divorce an attested copy of the entry to be made in the appropriate Register. Issuance of Divorce Certificate is not envisaged and such act of the respondent No.3 in issuing Divorce Certificate falls foul with the provisions of the 1935 Act and the 1935 Rules.

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In view of the above discussions, the writ petition is disposed of declaring that issuance of notice by the respondent No.3 to the petitioner, that too, through the police station, is without any authority of law and without jurisdiction. The respondent No.3 is directed not to issue any notice requiring any party to a marriage to appear before him. The respondent No.3 is further directed not to engage in any reconciliation proceeding in his capacity as Registrar of Muslim Marriage and Divorce. The respondent No.3 is further directed to issue only the extract of the entry in the Register of divorce and not any Divorce Certificate as has been issued in the instant case.

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The petitioner will be at liberty to assail the talak given by the respondent No.4 in accordance with law.”

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The ratio of the said case of Meriza Khatun (supra) if found to squarely apply to the facts of the present case in hand. Hence, in view of the ratio laid down in the case of Meriza Khatun (supra), this writ petition stands allowed. Resultantly, it is held that the issuance of first talak by a writing dated 22.09.2016, as served by the respondent No.3

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through the Panbazar P.S. on 13.10.2016 is void ab initio, without any authority of law and without jurisdiction. The respondent No.3 is again reminded of his duty that he shall scrupulously comply with the directions contained in paragraph 27 of the judgment rendered by this Court in the case of Meriza Khatun (supra).

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The petitioner shall be at liberty to assail the first talak given by the respondent No.4 in accordance with law.

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This writ petition stands allowed to the extent as indicated herein before. The parties are left to bear their own cost.

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Before parting with the record, this Court is inclined to request the learned Govt. Advocate to communicate a copy of the judgment rendered by this Court in the case of Meriza Khatun (supra) as well as a copy of this order to the Director General of Police, Assam so as to enable him to take note of paragraph 20 and 27 thereof and direct his office to issue an advisory to all the police stations in the State not to serve notice of talak issued by the Registrar of Muslim Marriage & Divorce Registrar and Sadar Kazi.

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JUDGE

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Comparing Assistant

Smti. Nahid Parbin Nishat v. the State of Assam and 4 Ors.

Case brief

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What did the court decide?

Smti. Nahid Parbin Nishat v. the State of Assam and 4 Ors.

Case brief

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