Dismissed

Malina Deb Barman v. the State of Assam and 4 Ors.

Gauhati HC6 Jun 2022WP(C)/2434/2015

Case brief

AI extract

What is this about?

In a writ petition challenging the jurisdiction of Muslim Marriages Registrar to issue talaknama during a marriage registered under the Special Marriage Act, the Court dismissed the proceeding for non-prosecution after the petitioner failed to appear despite service of notice.

What did the court decide?

Writ petition dismissed for non-prosecution; interim order dated 29.04.2015 recalled.

Malina Deb Barman Vs the State of Assam and 4 Ors. — Matrimonial and Divorce | Gauhati HC (2022)

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Page No.# 1/4

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GAHC010116912015

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

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WP(C)/2434/2015

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MALINA DEB BARMAN W/O MD. MAKFUR RAHMAN R/O H./NO.7 BYE LANE NO.9 NAMGHAR PATH LACHITNAGAR P.O. ULUBARI P.S. PALTAN BAZAR DIST- KAMRUP METRO ASSAM

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VERSUS THE STATE OF ASSAM AND 4 ORS THROUGH THE INSPECTOR GENERAL OF REGISTRATION KAMRUP ASSAM 2:THE SUB-REGISTRAR KAMRUP GUWAHATI 3:THE MARRIAGE REGISTRATION OFFICER KAMRUP GUWAHATI 4:THE SADAR KAZI OFFICE OF MUSLIM MARRIAGES and DIVORCES REGISTRAR HATIGAON CHARIALI NILGIRI PATH GHY-38 5:MD. MAKFUR RAHMAN S/O MD. MAKBUL ALI R/O NATUN SARANIA GANDHIBASTI

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Page No.# 2/4

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P.O. SILPUKHURI P.S. CHANDMARI DIST- KAMRUP METRO ASSAM

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-----------Advocate for : MS.S KANUNGOE Advocate for : GA ASSAM appearing for THE STATE OF ASSAM AND 4 ORS

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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06.06.2022

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None has appeared for the petitioner on call. Heard Mr. P.S. Deka, learned Standing Counsel, Registration Department for the respondent nos. 1, 2 and 3; and Mr. A. Das, learned counsel for the respondent no. 5.

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This writ petition has been instituted by the petitioner stating inter alia that the marriage between the petitioner and the respondent no. 5 was solemnized on 24.05.2004 under the provisions of the Special Marriage Act, 1954 and a Marriage Certificate no. 423 dated 24.05.2004 was issued by the office of the Marriage Officer, Kamrup District in that connection.

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2.1. It has been averred by the petitioner that on 12.02.2011, the respondent no. 5 again married the petitioner as per the Islamic rituals but she has not been converted her religion till date. The petitioner has averred that she was served with a first talaknama dated 13.01.2015 by her husband and the same was issued by the respondent no. 4, Muslim Marriages & Divorces Registrar and Sadar Kazi, Guwahati. Thereafter, the petitioner was served a second talaknama dated 15.02.2015 by the respondent no. 5, which was also issued by the respondent no. 4, Muslim Marriages & Divorces Registrar and Sadar Kazi, Guwahati.

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2.2. The contention averred on behalf of the petitioner is to the effect that since the

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marriage was already registered under the Special Marriage Act, 1954, the respondent no. 4 as Muslim Marriages & Divorces Registrar and Sadar Kazi, Guwahati, does not have the authority and jurisdiction to issue such talaknamas. The further contention averred on behalf of the petitioner is that in case the respondent no. 5 intends to seek divorce with dissolution of the marriage with the petitioner, the respondent no. 5 ought to have approached the appropriate forum.

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2.3. The present writ petition has been preferred by the petitioner seeking setting aside and quashing of the proceeding initiated by the respondent no. 4 at the instance of the respondent no. 5 as well as of the first talaknama dated 13.01.2015 and the second talaknama dated 15.02.2015.

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Notices were issued to the respondents on 29.04.2015, suspending the proceedings initiated by the respondent no. 4 till the returnable date recording the fact that the marriage between the petitioner and the respondent no. 5 was already solemnized under the Special Marriage Act, 1954. After institution of this writ petition, the respondent no. 5 has appeared in the case and has preferred an interlocutory application seeking vacation of the interim order dated 29.04.2015. The said interlocutory application has been registered and numbered as I.A. no. 442/2015.

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When the writ petition was listed earlier on 29.05.2020, Ms. S. Kanungoe, learned counsel appearing for the petitioner has submitted that the brief of the case was taken away by the petitioner, Malina Deb Barman. Taking note of the submission of the learned counsel on 29.05.2020, the Court directed the Registry to issue notice to the petitioner, Malina Deb Barman.

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As per the office note dated 08.06.2020, notice was issued to the petitioner by a special messenger on 04.06.2020. When the case was listed again on 23.05.2022, the Lawazima Court was directed to ascertain the status of service of notice upon the petitioner and thereafter, to list the case again today with a report of the Lawazima Court. As per the report dated 31.05.2022 of the Lawazima Court, the notice was handed over by the special

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messenger, namely, Sri Bipul Baruah to the petitioner but the petitioner did not acknowledge receipt of the notice by subscribing her signature on it.

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Since the petitioner has not appeared before the Court even after sending the notice to her through the special messenger, it appears that the petitioner is not interested to pursue this writ petition. In view of the same, this writ petition stands dismissed for nonprosecution. As a result, the interim order dated 29.04.2015 stands recalled. If the petitioner is desirous of pursuing the writ petition, the petitioner is at liberty to seek restoration of the writ petition by showing sufficient cause and by filing appropriate application.

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JUDGE

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Comparing Assistant

Malina Deb Barman v. the State of Assam and 4 Ors.

Case brief

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Malina Deb Barman v. the State of Assam and 4 Ors.

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