Jurisdiction – Suit for Dissolution of Muslim Marriage Initial Jurisdiction: Suit for dissolution of marriage (O.S. No. 207 of 2023) filed by the Muslim husband was maintainable before the Principal Junior Civil Judge, Piler, under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, where a Family Court's jurisdiction was not invoked or available.

1. Civil Procedure Code, 1908 – Section 24 – Transfer Petition (Matrimonial)

• Grounds for Transfer: A petition filed by the wife under Section 24 CPC seeking the transfer of a suit for dissolution of marriage from the court of the Principal Junior Civil Judge, Piler, to a court in Kadapa.

• Wife's Convenience: The cardinal principle in matrimonial proceedings for exercising power under Section 24 CPC is the convenience of the wife, overriding the inconvenience of the husband (N.C.V. Aishwarya Vs A.S. Saravana Karthik Sha followed).

• Hardship: Transfer is warranted where the wife has to travel a significant distance (more than 105 Kms from Kadapa to Piler) without male support, making it difficult to pursue the litigation.

• Consolidation of Cases: Transfer is further justified when the wife has already instituted multiple related proceedings (498-A/DP Act case, DVC, and RCR petition) that are all pending before competent courts in Kadapa.

2. Jurisdiction – Suit for Dissolution of Muslim Marriage

• Initial Jurisdiction: Suit for dissolution of marriage (O.S. No. 207 of 2023) filed by the Muslim husband was maintainable before the Principal Junior Civil Judge, Piler, under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, where a Family Court's jurisdiction was not invoked or available.

• Final Jurisdiction: Given the existence of a Family Court, Kadapa, and the convenience of the wife, the suit is ultimately directed to be transferred to the Family Court, Kadapa, recognizing it as the specialized forum for adjudication of matrimonial disputes.

Result

Transfer Civil Miscellaneous Petition Allowed. O.S. No. 207 of 2023 withdrawn from the Principal Junior Civil Judge, Piler, and transferred to the Family Court, Kadapa.

. Jurisdiction (Implied) The proceeding originated in the court of the Principal Junior Civil Judge, Chilakaluripet, confirming that such a court is the competent authority to entertain suits for dissolution of marriage in an area where the Family Courts Act, 1984, has not yet extended its exclusive jurisdiction.

. Muslim Law – Triple Talaq (Talaq-e-Biddat) – Retrospective Application & Constitution

• Legality of Triple Talaq: The practice of instant Triple Talaq (Talaq-e-Biddat), pronounced by a Muslim husband, is illegal, unconstitutional, and void ab initio, as declared by the Supreme Court in Shayara Banu v. Union of India (2017).

• Retrospective Effect: The law declared by the Supreme Court in Shayara Banu applies retrospectively to all pending proceedings, as there was no indication in the judgment for prospective application only.

• Effect on Shariat Act: Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, is held to be unconstitutional to the extent it recognizes and enforces Triple Talaq.

2. Civil Procedure Code (CPC) – Order VII Rule 11(d) – Rejection of Plaint

• Plaint Filed in Subordinate Court: A suit (O.S. No. 195 of 2016) filed by the husband before the Principal Junior Civil Judge, Chilakaluripet, seeking a declaration of divorce based on an alleged Triple Talaq pronounced in 2016, is not maintainable.

• Suit Barred by Law: Since the foundation of the suit (Triple Talaq) is void by virtue of the retrospective application of the Shayara Banu judgment, the suit is deemed to be barred by law.

• Mandatory Rejection: The trial court's order refusing to reject the plaint was incorrect and resulted in a miscarriage of justice. The plaint must be rejected under Order VII Rule 11(d) CPC.

3. Jurisdiction (Implied)

• The proceeding originated in the court of the Principal Junior Civil Judge, Chilakaluripet, confirming that such a court is the competent authority to entertain suits for dissolution of marriage in an area where the Family Courts Act, 1984, has not yet extended its exclusive jurisdiction.

Judicial Fora – Informal justice delivery system – ‘Court of Kazi’, ‘Court of (Darul Kaja) Kajiyat’, ‘Sharia Court’ – Legal status – Decisions/fatwas – Whether binding – Whether enforceable Held, bodies styled as Court of Kazi, Court of (Darul Kaja) Kajiyat, Sharia Court, etc., have no recognition in law. Any declaration/decision or fatwa issued by such bodies is not binding on any person, is unenforceable through any coercive process, and has no legal sanction. Such decisions can at best be valid inter se the parties who willingly accept and act upon them, provided they do not conflict with any law. They do not bind third parties. Reaffirmed principles in Vishwa Lochan Madan v. Union of India, (2014) 7 SCC 707. [Para 23]

Code of Criminal Procedure, 1973 – S.125 – Maintenance – Muslim parties – Divorce before informal religious fora (Court of Kazi/Darul Kaja/Kajiyat) – Effect – Wife’s right to maintenance – When denial impermissible – Erroneous reasoning of Family Court – Date from which maintenance payable – Principles reaffirmed

Appellant-wife, married to respondent no.2 according to Islamic customs, and having two children, was subjected to alleged cruelty and dowry demand. Husband filed a “divorce suit” before the Court of Kazi which was dismissed on a compromise. Three years later, he again filed a divorce proceeding before the so-called Court of (Darul Kaja) Kajiyat, which was allowed. Appellant thereafter filed application u/s 125 CrPC for maintenance for herself and the two children. Family Court awarded maintenance only for the children and rejected the appellant’s claim on the basis that (i) the marriage was a second marriage for both parties, hence no dowry could be demanded; and (ii) compromise deed reflected that the appellant had admitted her mistake, indicating her conduct caused the rift. High Court upheld the rejection.

Held, reasoning of the Family Court that no dowry could be demanded because it was a second marriage is unknown to the canons of law and based on mere conjecture and surmise. Presumption that second marriages necessarily rule out dowry demands is impermissible. Further finding that compromise deed recorded admission of wrongdoing by the appellant is factually incorrect; the deed contains no such admission. Very basis for denying maintenance is ex-facie unsustainable. Maintenance could not have been denied under the prevailing circumstances.

Respondent no.2 directed to pay Rs.4,000 per month as maintenance to the appellant-wife, from the date of filing of the maintenance petition. Maintenance granted to the children also to be payable from the date of filing of the application. Maintenance to daughter payable only till she attained majority. Orders of Family Court and High Court set aside. [Paras 14, 15, 18]

Judicial Fora – Informal justice delivery system – ‘Court of Kazi’, ‘Court of (Darul Kaja) Kajiyat’, ‘Sharia Court’ – Legal status – Decisions/fatwas – Whether binding – Whether enforceable

Held, bodies styled as Court of Kazi, Court of (Darul Kaja) Kajiyat, Sharia Court, etc., have no recognition in law. Any declaration/decision or fatwa issued by such bodies is not binding on any person, is unenforceable through any coercive process, and has no legal sanction. Such decisions can at best be valid inter se the parties who willingly accept and act upon them, provided they do not conflict with any law. They do not bind third parties. Reaffirmed principles in Vishwa Lochan Madan v. Union of India, (2014) 7 SCC 707. [Para 23]

Maintenance – Date from which maintenance payable – Judicial principles – Beneficial legislation – Delay in disposal – Directions in Rajnesh v. Neha applied

Following Rajnesh v. Neha, (2021) 2 SCC 324, maintenance under S.125 CrPC ordinarily should be granted from the date of application, especially considering delays in court processes and the beneficial nature of the legislation to prevent destitution and vagrancy. [Paras 17, 18]

Case Law Cited

1. Rajnesh v. Neha, [2020] 13 SCR 1093 : (2021) 2 SCC 324 – relied on.

2. Nagarathinam v. State, [2023] 4 SCR 1124 : 2023 SCC OnLine SC 559 – referred to.

3. Vishwa Lochan Madan v. Union of India, [2014] 8 SCR 195 : (2014) 7 SCC 707 – referred to.

Muslim Law – Divorce – Mubaraat – Dissolution by mutual consent – Maintainability of suit – Jurisdiction of Family Court – Scope of Section 7 of Family Courts Act – Recognition of Mubaraat as valid form of dissolution. Held: Mubaraat is a well-recognized mode of dissolution of marriage under Muslim Personal Law (Shariat). When parties governed by Shariat mutually enter a valid Mubaraat agreement dissolving marriage, the Family Court is competent to entertain a suit seeking declaration of dissolution of marriage on the basis of such agreement.

Muslim Law – Divorce – Mubaraat – Dissolution by mutual consent – Maintainability of suit – Jurisdiction of Family Court – Scope of Section 7 of Family Courts Act – Recognition of Mubaraat as valid form of dissolution.

Held: Mubaraat is a well-recognized mode of dissolution of marriage under Muslim Personal Law (Shariat). When parties governed by Shariat mutually enter a valid Mubaraat agreement dissolving marriage, the Family Court is competent to entertain a suit seeking declaration of dissolution of marriage on the basis of such agreement.

Rejection of the suit by the Family Court on the ground that “mutual consent divorce is not contemplated under the Dissolution of Muslim Marriages Act, 1939” is legally erroneous. DMMA 1939 governs only the wife’s statutory grounds; it does not override or exclude other personal-law modes of dissolution.

Section 7 of the Family Courts Act confers exclusive jurisdiction to Family Courts to adjudicate suits relating to dissolution of marriage and declaration of matrimonial status. A declaration sought on the basis of Mubaraat falls squarely within Section 7(1)(a). Family Court is duty-bound to accept the consensual dissolution and grant declaration.

Held, further: Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1, has recognized the various forms of divorce under Muslim Personal Law, including Mubaraat. Kerala High Court in Raseena Pareekunju v. Muhammed Asif, AIR 2021 Ker 124, and Karnataka High Court in Asif Iqbal v. Rafiah @ Feenaz, MFA No.101928/2021, have affirmed maintainability of suits seeking recognition of Mubaraat.

Accordingly, the Family Court erred in dismissing the suit as not maintainable.

Appeal allowed. Marriage declared dissolved by Mubaraat dated 03-04-2021.

HIGH COURT OF A.P. FAMILY COURTS (COURT) RULES, 2005

HIGH COURT OF A.P. FAMILY

COURTS (COURT) RULES, 2005

Notification No. 2/SO/2005

Roc.No. 679/SO/2003: In supersession of the Family Court Rules,

1995 made under Rule 21 of the Family Courts Act, 1984 by the High

Court and in exercise of the powers conferred on the High Court under

Section 21 of the Family Courts Act, 1984 and all enabling provisions in

that behalf prescribes the following rules to regulate the proceedings of the

Family Courts in the State of Andhra Pradesh.

RULES

1.(a) Short Title:- These rules may be called the "High Court of

Andhra Pradesh Family Courts (Court) Rules, 2005".

(b) Commencement- These rules shall come into force with effect

from the date of publication of these rules in A.P. Gazette.

(c) Application- These rules shall apply to the Family Courts

established in the State of Andhra Pradesh under Section 3 of the

Family Courts Act, 1984.

2. Definitions- In these rules, unless the context otherwise requires:

(a) 'Act' means the Family Courts Act, 1984.

(b) 'Centre' means a counselling centre.

(c) 'Counsellor' means a person referred to in Section 6 of the Act.

(d) 'Court' means the Family Court established under Section 3 of

the Act.

(e) 'High Court' means the High Court of Andhra Pradesh.

(f)

or

'Institution' means any institution or organization engaged in social

welfare, registered and recognized by the Government

recognized by the High Court.

(g) 'Petition' shall include an application under Chapter IX of the

Criminal Procedure Code, 1973 unless the subject matter or context

requires otherwise.

1. Pub. in the A.P. Gaz. R.S. to pt.II, Ext. No. 10-A. dt. 6-4-2005.

422

f

1

r

e

t

R.4] High Court of A.P. Family Courts (Court) Rules, 2005 423

(h) All other words and expressions used but not defined in these

rules shall have meaning respectively assigned to them in the

retrospective Acts mentioned in Rule 5(d) as well as in the Code

of Civil Procedure and Criminal Procedure Code.

(i) 'Service' means Higher Judicial Service of the State.

(j) 'Judge' includes Principal/Additional Judge and Judge of Family

Court.

3. Working hours- The working hours and sittings of the Family

Courts shall be as determined by the High Court in their application to the

Civil Courts, except that the High Court shall fix in each calendar year the

working hours and sittings ofthe Family Courts during vacations and holidays.

4. Place of sitting-

(a) The place or places where the Family Court shall sit shall be as

specified by the High Court from time to time by an order in this

regard.

(b)

(c)

The Judge can also hold sittings outside notified place in consultation

with the parties to the proceeding after obtaining permission from

the High Court.

Notwithstanding anything contained above, if in any particular

case the Judge is of the opinion that it will tend to the general

convenience of the parties or of the witnesses or for any other

parties to hold its sittings at a place other than its ordinary place

of its sittings but within its limits of territorial jurisdiction, the

Judge may do so for reasons to be recorded in writing and prior

notice to all parties and to such other persons as the Judge may

consider necessary. The Judge shall intimate the High Court about

such sittings soon after a decision is taken in this behalf.

(d) The Family Court shall function on all days throughout the year

except on authorized holidays as declared by the High Court.

(e) The Subordinate Courts calendar shall be the calendar of the

Family Court except that there will be no vacations.

(f) The Judges may, for expedience, hold proceedings of the Court

beyond the working hours as prescribed in this rule and even on

holidays.

uch proceedings shall be held under

of the parties to the

le except

424 High Court of A.P. Family Courts (Court) Rules, 2005 [R.5

(g) The Family Court shall hold its sitting in open or in camera as

determined by it in each case, but shall hold the proceedings in

camera if either party so desires.

(h) No act of the Family Court shall be invalid by reason of holding or

continuing its sitting at any place of its choice or on any holiday or

outside normal working hours, when such sitting is informed to

the parties in advance.

(i) Normally the Family Court shall hold sitting in between 10.30

a.m. to 1.00 p.m. and 1.30 p.m. to 5.00 p.m., and the office shall

work in between 10.00 a.m. to 5.00 p.m., except on Sundays and

holidays declared by the High Court.

5. Institution of Proceedings-

(a) All proceedings instituted before a Family Court shall be by way

of petition as per Form No. 1 appended to these rules which

should be duly verified by the petitioner. Interlocutory application

in the proceeding to be instituted or already instituted shall be filed

in Form No. 2 after being duly verified by the applicant. The

petition in Form No. 1 or the Interlocutory Application in Form

No. 2 can be in any language falling in Schedule VIII to the

Constitution. A translated copy shall be affixed whenever it was

sent to different States.

(b) There shall be fixed court fee in respect of any petition or any

Interlocutory Application filed before the Family Court.

(c) Whenever Court fee is prescribed under the provisions of rules of

other Acts mentioned in clause (d) it shall be paid.

(d) The application may be filed before Family Court as permitted

under any law which also includes provisions contained in the

following laws viz.,

(i) Chapter IX of the Criminal Procedure Code, 1973 (2 of

1974).

(ii) Hindu Marriage Act, 1955 (25 of 1955).

(iii) Maintenance under the Hindu Adoptions and Maintenance

Act, 1956 (78 of 1956).

(iv) Guardianship of the person or custody of or access to any

minor under the Hindu Minority and Guardianship Act,

1956(32 of 1956).

R.7] High Court of A.P. Family Courts (Court) Rules, 2005 425

(v) Dowry Prohibition Act, 1961 (28 of 1961) for an order for

injunction in circumstances arising out of marital relationship.

(vi) Hindu Marriages (Validation of Proceedings) Act, 1960 (19

of 1960).

(vii) Personal law applicable to Muslims including:

(a) Muslim Personal Law (Shariat) Application Act, 1937

(26 of 1937).

(b) Dissolution of Muslim Marriages Act, 1939 (8 of 1939).

(c) Muslim Women (Protection of Rights on Divorce) Act,

1986 (25 of 1986).

(viii) Parsi Marriage and Divorce Act, 1936 (3 of 1936) which

can be instituted or taken out before the Parsi District

Matrimonial Courts constituted under Sections 18 and 20 of

the said Act.

(ix) Indian Christian Marriage Act, 1872 (15 of 1872).

(x) Indian Divorce Act, 1945.

(xi) Special Marriage Act, 1954 (43 of 1954).

(xii) Child Marriage Restraint Act, 1929 (19 of 1929).

(xiii) Anand Marriage Act, 1909 (7 of 1909).

(xiv) Arya Marriage Validation Act, 1937 (19 of 1937).

(xv) Foreign Marriage Act, 1969 (33 of 1969).

(xvi) Suits or proceedings relating to Part B States Marriages

Validating Act, 1952 (1 of 1952).

(xvii) Guardians and Wards Act, 1890 (8 of 1890).

6. Filing of Petition- A petition or any other application shall be filed

with two copies signed by the parties along with as many copies to be sent to

all the respondents by an officer designated for this purpose. One copy of

such petition or application shall be forwarded by the designated officer of

the Family Court to the Counsellor forthwith.

7. Notice to Respondent- Notice of the proceeding including

interlocutory application, shall be issued in Form No. 3 appended to these

les along with a copy of the petition or ation as the case may be.

et of matter under Cha Procedure Code the

426 High Court of A.P. Family Courts (Court) Rules, 2005 [R.13

summons to appear and answer shall be in Form No. 4. If any act prescribed

in any form for issuing summons, notices shall be issued in the said form.

8. Name and address of the party or of the representative to be

stated in every process- The name and address of a party or of the

representative appearing or a party shall be stated in every notice, summons,

witness summons, interim application, warrant and every process of the

Court issued at the instance of such party or representative.

9. Notice, summons etc. how attested and signed- All Notices,

Summons, Rules, Orders, Warrants and other mandatory processes shall be

sealed with the seal of the Court and shall be signed by the designated officer

of the court.

10. Returnable date of notice summons- Unless otherwise ordered,

the notice/summons shall be made returnable in three weeks after the date of

the filing of the petition, if the respondent resides within the local limits of the

Court and five weeks after the date of the filing of the petition ifthe respondent

resides outside the said limits.

11. Mode of Service of notice, summons-

(a) The notice/summons shall be served in the manner prescribed in

the Code of Civil Procedure, save and except in proceedings

under Chapter IX of the Criminal Procedure Code where the

provisions of that Code will apply. Along with the notice, summons

a copy of the petition and exhibits/Documents annexed thereto

shall be sent.

(b) In addition to the normal process of service by the Court, the

applicant will be at liberty to serve upon the respondent the notices/

summons of the Court along with copy of the petition and exhibits/

documents either through person or through other recognizable

mode of service including registered post and shall file affidavit of

service upon the respondent.

12. Proof of service of Summons-It has to be shown either by way

of affidavit or application or other evidence that the notices/summons were

served upon the respondents.

13. Substituted Service- In case of failure to serve by normal

process, the Court, on an oral/written application of the applicant, may direct

for serving upon the respondents by substituted mode i.e., through affixture,

publication in the newspaper, etc. and applicant shall file affidavit stating as

to the mode adopted for service of summons.

R.16] High Court of A.P. Family Courts (Court) Rules, 2005 427

14. Copy of petition to be furnished to the respondent- The

applicant shall furnish the complete copy with all exhibits to the respondents,

who asks for the copy on the ground that he has not received the copy ofthe

petition or that he has not received complete coру.

15. The provisions under Order I of the Civil Procedure Code for

addition of a necessary party or a proper party shall be applicable to a

proceeding before the Family Court.

16. Appointment of Legal Aid and Amicus Curiae-

(a) Proceedings before the Court shall be taken up in the presence of

the parties, and a legal practitioner on either side shall be allowed

to appear only as amicus curiae, if the Court finds it necessary

in the interest of justice.

(b)(1) Appearance of Legal Practitioners or Advocates in the Family

Court:-Notwithstanding anything contained in law, for the time

being in force, no party to a suit or proceeding before a family

court shall be entitled as of right to be represented by a Legal

Practitioner or Advocate. Provided that if the Family considers it

necessary in the interest of justice, it may seek assistance of a

legal expert as amicus curiae.

(2)

Explanation: It does not preclude the family court from granting

permission in the exercise of its discretion, where the circumstances

justify, to a party to be represented by Legal Practitioner or

Advocate.

Appointment of Amicus Curiae: A Judge will maintain a panel

of legal experts as Amicus Curiae. At least a panel of five

Amicus Curiae will be maintained by each court. Panel of Amicus

Curiae will be maintained out of legal experts and also from the

retired Judges of local area who have expertise in the field. The

Amicus Curiae shall be paid a fee by the State Governments in a

case or proceeding which may be determined by the Court not

exceeding Rs. 500/- per day.

(3) Party entitled to free legal advice: A party will be entitled to

take legal advice at any stage of the proceedings before the

Court. A party in indigent circumstances will be entitled to free

legal aid and advice from the State Legal Services Authority in

accordance ales made thereunder by the State.

428 High Court of A.P. Family Courts (Court) Rules, 2005 [R.18

(4) Panel of Lawyers for free legal advice: The Court shall maintain

a panel of lawyers willing to render free legal aid and advice. A

party entitled to free legal aid and advice will be entitled to select

any of the lawyers from the said panel provided the lawyer is

available and willing to accept the case.

17. Directions on the returnable date- On the returnable date of

the notice, summons, the petition shall be placed for directions before the

Judge ofthe Family Court. On that day, the designated counsellor shall attend

the Court ofthe Judge giving directions. The Judge shall, in consultation with

the counsellor, direct the parties to attend before a specified counsellor

appointed for the purpose of counselling. The Judge shall fix a specified date

by which counsellor shall file a memorandum setting out the outcome of the

proceeding before him. On that day the Court will pass further order and

directions, as it deems fit and proper.

18. Role of the Counsellor- The counsellor appointed to counsel

the parties shall fix time and date of appointment. The parties shall be bound

to attend the counsellor on the date and at the time so fixed.

If either of the parties fails to attend the counsellor on the date and time

so fixed, the counsellor may fix another date and shall communicate the same

to the absentee party by registered post. In case of default by either of the

parties on the adjourned date, the counsellor shall submit a report to the Court

and on receipt of such report, the Court may proceed with the matter without

prejudice to other powers of the Court to take action against the defaulting

parties.

The counsellor entrusted with any petition on appearance of the parties

before her/him shall assist and advice the parties regarding the settlement of

the subject matter of dispute and shall endeavour to help the parties in

arriving at conciliation.

The counsellor may, in discharge of her/his duties visit the home of

either of the parties and interview the relatives, friends and acquaintances of

either of the parties.

The counsellor in discharge of her/his duties may also seek such

information as she/he deems fit from the employer of either of the parties

and such requisition for information shall be made through the Court.

The counsellor may take the assistance of any organization, institution

or agency in discharge of her/his duties.

R.19] High Court of A.P. Family Courts (Court) Rules, 2005 429

The counsellor shall submit a report to the Court as and when called for

to assist the Court in deciding the case on hand. The report may, inter alia

contain the following points:

(a) Living environment of the parties concerned.

(b) Personalities.

(c) Relationship.

(d) Income and standard of living.

(e) Educational status ofthe parties.

(f) Status in society.

(g) Counsellor's findings.

The counsellor may also supervise the child/children if and when called

upon by the Court.

19. Duties and Functions of a counsellor

(1) The Counsellor shall perform such work and duties as may be

entrusted by the Family Court.

(2) Counsellor entrusted with any petition shall assist and advise the

parties regarding the settlement of the subject matter of dispute

between the parties or any party thereof. The counsellor shall

also help the parties in arriving at reconciliation.

(3) The Counsellor in the discharge of his duties shall be entitled to

visit the homes of any of the parties.

(4) The Counsellor in the discharge of his duties shall be entitled to

interview relatives, friends and acquaintances of parties or any of

them.

(5) The Counsellor in the discharge of his duties may seek such

information as he may deem fit from the employer of any of the

parties.

(6) The Counsellor may in the discharge of his/her duties refer the

parties to an expert in any other area such as psychiatry. Refer

the parties to an expert only after taking permission from the

concerned Court and after obtaining consent from the parties.

(7) The Counsellor shall

institution an

endeavour to uphold the familk

ball conduct proceedings h

430 High Court of A.P. Family Courts (Court) Rules, 2005 [R.22

sunset and make visits only before sunset. The wishes of the

children shall be given paramount consideration for reconciliation.

He shall use persuasive methods and shall not use

misrepresentation of false promise or threats.

20. Confidentiality of Information- The information gathered by

the Counsellor any statement made before the Counsellor, any notes or

report prepared by the Counsellor shall be treated as confidential. Counsellor

shall not be called upon to disclose the information statements, notes or report

to any Court, except with the consent of both the parties and the extent

mentioned in Rule 25.

Such notes of report or statements or any material lying with the

Counsellor shall be kept in sealed cover by the Counseltor and shall not form

a part of evidence before the Court but form part of record.

If the case is reported in the journals the information can be used for

research or education after obtaining permission from the High Court.

21. Counsellor's right to supervise custody of children- The

counsellor shall be entitled to supervise the placement of children in the

custody of party and shall be entitled to pay surprise visits to the home where

the child resides. In the event of the Counsellor coming to a conclusion that

any alteration is required in the arrangement relating to custody of a child or

children, the Counsellor shall make a report to the Court in that connection.

Thereupon, the Court may, after giving notice to the parties to appear before

it, pass such orders in that connection as the Court may deem fit.

Female children shall be entrusted to the female counsellor. During

surprise visits, and during conducting proceeding, it shall be the endeavour of

the counsellor to show utmost respect to the women and children and not

intimidate them.

22. Counsellor not to give evidence- The counsellor shall not be

permitted to give evidence in any Court in respect of the information,

statements, notes or report referred to in Rule 23:

Provided that the Counsellor shall submit to the Court a report relating

to the home environment of the parties concerned their personalities and their

relationship with the child or children in order to assist the Court in deciding

the question of custody, guardianship of the child or children of the marriage:

Provided further that the Counsellor shall submit to the Court a report

relating to home environment. income, standard of living of the party or

R.26] High Court of A.P. Family Courts (Court) Rules, 2005 431

parties concerned in order to assist the Court in determining the amount of

maintenance or alimony to be granted to one of the parties.

23. Settlement before Counsellors- When the parties arrived at a

settlement before the Counsellor relating to the dispute or any part thereof,

such settlement shall be reduced in writing read over and explained to the

parties and obtain thumb mark or signatures as the case may be, and

countersigned by the Counsellor and shall be filed before the Court promptly.

24. Panel of Experts- The Family Court in consultation with the

Counsellor or Counsellors may avail of the services of a medical and other

such experts as may be required in a particular case. The expert so engaged

shall be paid a fee of Rs. 200/- (Rupees Two Hundred only) per case and

Rs. 50/- (Rupees Fifty only) as a daily allowances per day and actual expenses

of travelling allowance by an order to be made in this behalf. The Family

Court Judge shall be the sanctioning authority. For this purpose a reasonable

amount may be placed at the disposal of each Family Court.

25. List of Institutions, Agenda, etc.-

(1)

(2)

The Family Court in consultation with the Counsellors shall prepare

in the month of January of each year, a list of about ten Institutions,

Organizations or Agencies working in the area of Family Welfare,

Child Guidance, Employment or any other area that the Court

may deem fit, in order to enable the Counsellor or parties to

obtain the assistance of such institution, organization or agency

and submit it to the High Court for approval. The list shall be valid

till the approval of the next list by the High Court.

The Court may lay down the manner and the conditions for

association of such Institutions, Organizations or Agencies. The

association of such Social Welfare Agencies etc., may extend to

their active participation in resurrecting family bond and its

rehabilitation.

(3) Such Institutions, Organizations or Agencies may also be entrusted

with the duties of supervising guiding and assisting the parties,

even after the case is disposed of by the Court.

26. Efforts for arriving at settlement-(1) Every Family Court shall

maintain separate lists of:

(a) Institutions and Organization

with names and ada

red in social welfare together

ives of such institutions

432 High Court of A.P. Family Courts (Court) Rules, 2005 [R.31

(b) Persons professionally engaged in promoting the welfare of the

family with their addresses;

(c) Persons working in the field of social welfare with their addresses.

Report from institution, organisation etc.- A Family Court may

call for report as regards efforts made or to be made by the institution,

organisation or persons referred to in Section 5 ofthe Act:

Provided that where efforts for amicable settlement are continuing or

are deferred, the Family Court may require the institution, organisation or

person to submit before it an 'interim' report.

Hearing of Petitions in Court

27. Adjournment by the Court- The date of hearing, so fixed shall

not be adjourned by the Court unless there are circumstances justifying such

adjournment and to meet the ends of justice. The Court shall record its

reasons for adjourning a matter.

28. Memorandum of Evidence- The Court shall record only the

substance of what the witness deposes and prepare a memorandum

accordingly, which shall be read and explained to the witness and the

memorandum of the said substance recorded by the Court shall be signed ty

the witness and the presiding officer of the Court and shall form part ofthe

record. The evidence taken on affidavit, if any, shall also form part of the

record of the Court.

The judgment shall contain a concise statement of the case, the point

for determination, the decision thereon and the reasons for such decision.

If any particular mode of recording of evidence is prescribed under the

special acts referred to in Rule 5(d) they shall be followed.

29. The Court shall furnish to the parties to the proceedings before it a

copy of the judgment certified to be a true copy free of cost.

30. Appeal under Section 19(1) of the Act shall be in the manner of

appeals against the original decree or order in a civil proceedings, but there

shall be no court fee payable for the appeal.

If any court fee is prescribed under various special Acts, they shall be

paid in respect of the appeal.

31. The rules framed under the Guardians and Wards Act, 1890 by the

High Court shall be applicable in matters relating to Guardian and Wards Act.

R.39] Interim Applications 433

1890 to the Extent they are not inconsistent with the provisions ofthe Act or

the Rules framed thereunder.

32. Application for Guardianship- All petitions for guardianship

other than applications over which the High Court has jurisdiction, shall be

filed before the Family Court.

33. Contents of the Application- Every petition for guardianship

when it is a person other than the natural parent or natural guardian of the

child shall be accompanied by a home study report of the person asking for

such guardianship and his/her spouse, if any.

34. In case of a child placed in guardianship the Court may, at any time

direct the Counsellor attached to the Court to supervise the placement of the

child and submit a report thereon to the Court in such manner as the Court

may deem fit.

35. A child study report ofthe child proposed to be taken in guardianship

together with a photograph of the child should also be filed in all petitions for

guardianship, as required under the Rules of the Rules framed under the

Guardians and Wards Act, 1890. Such report shall be in Form No. V when

the child is institutionalized (or Court committed). The report shall be

countersigned by the petitioner.

36. A proceeding before the Family Court shall not become invalid by

reason only of non-compliance with any of the procedural requirements

prescribed herein.

Interim Applications

37. Interim Applications-All interim applications to the Court shall

be separately numbered as 'Interim Application No. . In

Petition No.

38. Interim Application while matter is pending before

Counsellor- An interim application may be made even while the matter is

pending before a Counsellor.

39. Report from the Counsellor- The Court may ask the Counsellor

to submit an interim report of the purposes of such an application before

deciding an interim application. The Family Court Rules, relating to reports to

be submitted by Counsellors, shall mutatis mutandis apply to interim reports

also.

434 High Court of A.P. Family Courts (Court) Rules, 2005 [R.47

40. Officers- The District Judge shall appoint the staff and other

ministerial officers as may be necessary for the administration of justice and

due execution of all powers and authorities exercisable by a Family Court:

Provided that the appointments of ministerial officers and ministerial

staff shall be under the administration and disciplinary control of District

Judge subject to any rules or restrictions as may be prescribed or imposed

under the Act. The powers of postings and transfers of the staff shall vest

with the District Judge concerned.

41. The proceedings before the Court shall be heard and disposed of as

expeditiously as possible, preferably within 3 months after failure of

reconciliation attempt.

42. Control of High Court- Every Principal Judge, and Judge of

Family Court shall be subordinate to the District Judge and under administrative

and disciplinary control of the High Court.

43. Power of High Court to transfer Judges- Without prejudice to

the administrative and disciplinary control of the High Court, such Court or a

Judge thereof authorized under general or special order in this behalf by such

Court, may where it is considered necessary or expedient so to do, transfer

any Principal Judge, Additional Judge, Judges.

44. Power of High Court to issue directions- For carrying out the

purposes of the Act and for ensuring the uniformity of practice to be observed

by Family Courts and for expeditious disposal, the High Court from time to

time, supervise and inspect the Family Courts and issue directions/circulars

etc., to the Family Courts.

45. The Family Courts may use such forms and containing such

particulars as may be approved by the High Court or provided under the Civil

Rules of Practice/Criminal Rules of Practice and Circular Orders as well as

under the special Acts mentioned supra.

46. Powers to call for information etc.- The High Court may

require Family Courts to maintain such registers and records and containing

such particulars as may be approved by the High Court and call for necessary

information as and when required. The Family Court shall have permanent

advance to the tune of Rs. 5,000/-. The amount payable to the counsellors

and experts and to be spent towards refreshments shall be met out of the

permanent advance sanctioned to the Judge of Family Court.

47. In addition to the rules referred above.

e and Circular Orders. Crimin

the other rules such as Civil

e and Circular

R.48] Interim Applications 435

Orders and any other rules which are not in consistence with these rules shall

also be applicable to the proceedings before the Family Court.

48. In settlement of immovable properties, court fee or stamp duty

whichever is payable shall be collected as per the A.P. Court Fee and Suits

Valuation Act or any other enactment.

Notification

Family Courts-cum-Additional District and

Sessions Courts in the State

Courts - Family Court - Redesignation of newly sanctioned family

courts also as "Family Courts-cum-Additional District and Sessions Courts"

in the State - Orders - Issued.

G.O.Ms.No.15, Law (LA&J Home (Courts.C) Department,

dt. 03-02-2009.

Read the following:

1. G.O.Ms.No.46, Law (LA & J Home Courts.C) Department.

2. G.O.Ms.No. 11, Finance (SMPC) Department, 17:1.2008.

3. From the Registrar (Vigilance), Andhra Pradesh High Court,

Hyderabad, Lr.R.O.C.No.3563 /El/ 1999, dt.5.11.2008.

ORDER:

In the circumstances reported by the Registrar (Vigilance), High Court

of Andhra Pradesh, Hyderabad in the reference third read above, the

Government hereby ordered for redesignation of following the newly sanctioned

Family Courts in Column (2) also as "Family Courts-cum-Additional District

and Sessions Courts", as mentioned in Column (3) except the Family Courts,

Ranga Reddy at L.B.Nagar, Hyderabad and Visakhapatnam, as shown in the

Table:

TABLE

SI.No. Name of the newly established

Family Court

(1)

1.

(2)

Family Court, Guntur

nagar

Nomenclature of the Family

Courts after redesignation

(3)

Family Court-cum-Additional

District and Sessic Court. Guntur.

Fam

436 High Court of A.P. Family Courts (Court) Rules, 2005

(1) (2)

3. Additional Family Court,

Visakhapatnam

4. Family Court, West -Godavari

at Eluru

5. Family Court, Anantapur

6. Family Court, Ranga Reddy at

L.B.Nagar

7. Family Court, khammam

8. Family Court, Vizianagaram

9. Family Court, Cuddapah

10. Additional Family Court,

Hyderabad.

11. Family Court, Nellore

12. Family Court, Prakasam at

Ongole

13. Family Court, Adilabad

14. Family Court, Srikakulam

(3)

Additional Family Court,

Visakhapatnam

Family Court-cum-Additional District

and Sessions Court, West Godavari

at Eluru

Family Court-cum-Additional District

and Sessions Court, Anantapur

Family Court, Ranga Reddy at

L.B.Nagar.

Family Court-cum-Additional District

and Sessions Court, Khammam.

Family Court-cum-Additional District

and Sessions Court, Vizianagaram.

Family Court-cum-Additional District

and Sessions Court, Cuddapah

Additional Family Court, Hyderabad

Family Court-cum-Additional. District

and Sessions Court, Nellore

Family Court-cum-Additional District

and Sessions Court, Prakasam at

Ongole.

Family Court-cum-Additional District

and Sessions Court, Adilabad.

Family Court-cum-Additional District

and Sessions Court, Srikakulam

15 Family Court, Mahabubagar Family Court-cum-Additional District

16. Family Court, Nalgonda

17. Family Court, Medak at

Sangareddy

18. Family Court, East -Godavari at

Rajahmundry

and Sessions Court, Mahabubnagar

Family Court-cum-Additional District

and Sessions Court, Nalgonda'

Family Court-cum-Additional District

and Sessions Court, Sangareddy

Family Court-cum-Additional District

and Sessions Court, East Godavari at

Rajahmundry.

2. The Registrar(Vigilance), High Court of Andhra Pradesh, Hyderabad

is requested to take further necessary action accordingly.

Civil Procedure Code, 1908 – Territorial jurisdiction – Cause of action – Suit for dissolution of marriage – Where cause of action arises within territorial limits of District Munsiff Court – District Munsiff Court has jurisdiction.

A. Dissolution of Muslim Marriages Act, 1939 – Ss.1–5 – Forum/Jurisdiction – Suit by Muslim woman for dissolution of marriage – Act contains no provision indicating in which Court such suit is to be filed – Effect.

The Act 26 of 1939 is a short enactment of six Sections. Sections 1 to 5 do not identify the Court competent to entertain a suit for dissolution of marriage by a Muslim married woman. There is no provision in the Act specifying the forum for filing such suits. In the absence of statutory indication, the plaintiff must invoke the general procedural law. (Paras 5–7)

B. Civil Procedure Code, 1908 – S.15 – Institution of suits in Court of lowest grade – Applicability to suits under Dissolution of Muslim Marriages Act, 1939.

Since the 1939 Act does not prescribe the Court in which the suit is to be filed, S.15 CPC applies. A suit for dissolution under the Act 1939 can be instituted before the District Munsiff Court, being the Court of lowest grade competent to try such matters. (Paras 5, 7, 12)

C. Civil Procedure Code, 1908 – Territorial jurisdiction – Cause of action – Suit for dissolution of marriage – Where cause of action arises within territorial limits of District Munsiff Court – District Munsiff Court has jurisdiction.

The pleadings disclose that the cause of action for dissolution of marriage arose within the territorial jurisdiction of District Munsiff Court, Maduranthakam. Hence, that Court is competent to try the suit. (Para 8)

D. Tamil Nadu Court Fees and Suits Valuation Act, 1955 – S.50(ii) – Valuation of relief for dissolution of marriage – Jurisdiction of District Munsiff Court.

Relief valued at Rs.100/- under S.50(ii). The District Munsiff Court did not dispute valuation. Read with S.15 CPC, the District Munsiff Court is the proper forum to entertain the suit. (Para 12)

E. Family Courts Act, 1984 – Ss.3 & 7 – Territorial jurisdiction of Family Courts – Notification specifying extent of jurisdiction – Family Court at Chengalpattu – Jurisdiction confined to Chengalpattu Taluk – No Family Court constituted for Maduranthakam – Effect.

Under G.O.Ms.No.1136 dated 11.12.2013, the Family Court at Chengalpattu exercises jurisdiction only over Chengalpattu Taluk. Its territorial jurisdiction does not extend to Maduranthakam. Therefore, even if suits under the 1939 Act were to be filed before a Family Court, the Family Court at Kancheepuram District lacks territorial jurisdiction over Maduranthakam. The District Munsiff Court, Maduranthakam remains the proper forum. (Paras 10–11)

F. Practice and Procedure – Return of plaint – Return by District Munsiff Court directing filing before Family Court based on earlier High Court decision – Improper when Family Court has no territorial jurisdiction.

The Trial Court returned the plaint relying on Mohamed Saif Pasha v. Madiha Arif, 2021 (4) MLJ 30. Held, the facts of that case differ; and in the absence of a Family Court with territorial jurisdiction over Maduranthakam, the District Munsiff Court must entertain the suit. (Paras 9–11)

G. Result – Civil Revision Petition allowed – District Munsiff Court directed to receive plaint and dispose of suit expeditiously.

(Para 13)

ANALYSIS

1. Core Issue

The central question before the Madras High Court was:

Whether a suit for dissolution of marriage filed by a Muslim woman under Section 2(viii)(a) of the Dissolution of Muslim Marriages Act, 1939 can be entertained by the District Munsiff Court, Maduranthakam, or whether it must be filed before the Family Court.

The Trial Court had returned the plaint, relying on an earlier Madras High Court decision (Mohamed Saif Pasha v. Madiha Arif), directing that such matters must be filed in the Family Court.

The petitioner challenged this return.

2. Statutory Silence in the DMMA, 1939

The Court undertakes a direct examination of the Dissolution of Muslim Marriages Act, 1939.

Key finding:

• The Act does not contain any provision identifying the forum or the class of court before which a Muslim woman must file a suit for dissolution.

• The Act consists of six sections, none of which allocate jurisdiction.

This statutory silence is the turning point of the judgment.

Since the Act does not specify forum, the Court must rely on the general procedural framework.

3. Application of CPC – Section 15 and Territorial Jurisdiction

The Court applies Section 15 CPC, holding:

• “Every suit shall be instituted in the Court of lowest grade competent to try it.”

• That Court, in this case, is the District Munsiff Court.

The Court then examines territorial jurisdiction:

• It finds no dispute that the cause of action arose within the territory of Maduranthakam.

• Therefore, the District Munsiff Court, Maduranthakam has territorial jurisdiction.

Although the judgment does not expressly cite Section 20 CPC, the Court’s reasoning—based on cause of action arising within the territorial jurisdiction—reflects Section 20(c) principles.

Thus, both subject competence (Section 15 CPC) and territorial competence (cause of action test) point to the District Munsiff Court.

4. Addressing the Trial Court’s Reliance on Mohamed Saif Pasha v. Madiha Arif

The Trial Court had returned the plaint on the basis of Madiha Arif (2021 (4) MLJ 30).

The High Court distinguishes this precedent:

• Madiha Arif concerned a suit filed by a Muslim person seeking recognition of a mutual consent divorce (Mubaraat).

• The Court in that case directed the parties to approach the Family Court under Section 7(1)(b) of the Family Courts Act.

But, critically:

• In Ummusalma, there is no Family Court exercising territorial jurisdiction over Maduranthakam.

• The Family Court at Chengalpattu covers only the limits of Chengalpattu Taluk, and its territorial jurisdiction does not extend to Maduranthakam.

Hence, Madiha Arif does not govern the present case.

The Trial Court’s reliance was therefore misplaced, and its return of the plaint legally incorrect.

5. Family Courts Act – Limited Territorial Authority

The Court examines G.O.Ms.No.1136 dated 11.12.2013:

• It confirms that the Family Court, Chengalpattu, has territorial jurisdiction only over Chengalpattu Taluk.

• Maduranthakam does not fall within its limits.

• Therefore, even if all Muslim dissolution suits must go to the Family Court, that Family Court must have territorial jurisdiction, which is absent here.

This reinforces the conclusion that:

• The District Munsiff Court remains the appropriate forum, because no Family Court has authority over the geographical area where the cause of action arose.

6. Applicability of Tamil Nadu Court Fees and Suits Valuation Act

The Court notes:

• The plaintiff valued the relief at Rs.100/- under Section 50(ii).

• The District Munsiff Court had no objection to the valuation.

• Therefore, the District Munsiff Court is not only territorially competent but also pecuniarily competent.

7. Outcome

Based on the integrated reading of:

• statutory silence under the 1939 Act,

• Section 15 CPC,

• territorial cause of action within Maduranthakam,

• non-extension of Family Court jurisdiction over the area, and

• correct valuation under the TN Court Fees Act,

the High Court holds:

• The plaint was wrongly returned.

• The District Munsiff Court, Maduranthakam must receive and try the suit.

• Civil Revision Petition is allowed.

The judgment closes with a direction to dispose the suit expeditiously.

8. Significance of the Judgment

This decision clarifies an important procedural point under Muslim personal law:

1. DMMA 1939 does not prescribe forum or territorial jurisdiction.

2. In the absence of contrary statutory direction, CPC governs.

3. Section 15 CPC + territorial cause of action principles determine the proper Court.

4. Family Courts Act jurisdiction is not automatic; it is limited by notified territorial boundaries.

5. Where no Family Court is notified for the area, the ordinary civil court (District Munsiff) is the correct forum.

This case is now a directly applicable precedent for all suits filed by Muslim women under the Dissolution of Muslim Marriages Act, particularly when territorial jurisdiction is disputed.

Family Courts Act, 1984 – S.7(1) & Explanation (a),(b),(d) – Jurisdiction – Dissolution of marriage – Muslim parties – Maintainability of suit for divorce by Muslim male – Scope. Held, S.7 of the Act of 1984 is all-pervasive and not religion-specific; it covers suits/proceedings concerning dissolution of marriage irrespective of community. Explanation (d) permits suits for orders/injunctions arising out of marital relationships. When read with the Madhya Pradesh Family Court Rules, 1988, r.9(2)(vii), suits or proceedings arising out of personal law applicable to Muslims including the Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939 fall within the cognizance of Family Courts. Therefore, a Muslim male can maintain proceedings for dissolution of marriage before the Family Court. (Paras 10–12)

MOHAMMAD SHAH v. SMT. CHANDANI BEGUM
FIRST APPEAL No. 1199 of 2022 (High Court of Madhya Pradesh, Gwalior Bench)
Decided on: 07-01-2025
Coram: Anand Pathak, J. & Hirdesh, J.

1. Family Courts Act, 1984 – S.7(1) & Explanation (a),(b),(d) – Jurisdiction – Dissolution of marriage – Muslim parties – Maintainability of suit for divorce by Muslim male – Scope.
   Held, S.7 of the Act of 1984 is all-pervasive and not religion-specific; it covers suits/proceedings concerning dissolution of marriage irrespective of community. Explanation (d) permits suits for orders/injunctions arising out of marital relationships. When read with the Madhya Pradesh Family Court Rules, 1988, r.9(2)(vii), suits or proceedings arising out of personal law applicable to Muslims including the Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939 fall within the cognizance of Family Courts. Therefore, a Muslim male can maintain proceedings for dissolution of marriage before the Family Court. (Paras 10–12)

2. Muslim Law – Dissolution of Muslim Marriages Act, 1939 – S.2 – Remedy available only to Muslim women – Effect.
   Although S.2 of the 1939 Act provides specific grounds for a Muslim woman to obtain dissolution, absence of an equivalent statutory provision for a Muslim male does not bar him from invoking jurisdiction under the Family Courts Act, 1984. Dissolution of marriage by a Muslim husband through judicial forum must be regulated through the procedure under the Act of 1984 and the Family Court Rules. (Paras 9, 12)

3. Muslim Personal Law (Shariat) Application Act, 1937 – S.2 – Modes of dissolution (Talaq, Ila, Zihar, Lian, Khula, Mubaraat) – Judicial recourse.
   Shariat Act covers dissolution forms recognised under Muslim Law. For securing judicial intervention, the statutory mechanism under the Family Courts Act must be invoked. (Paras 6, 12)

4. Interpretation of Statutes – Constitutional Morality – Access to Justice – Denial of remedy – Effect.
   A Muslim male cannot be rendered remediless. To deny him access to judicial forum for dissolution of marriage would run contrary to Constitutional morality, access to justice principles and constitutional vision of justice. (Para 14)

5. Family Court – Maintainability – Divorce suit filed by Muslim male – Erroneous dismissal by Family Court.
   Trial Court’s dismissal of divorce proceedings on ground of non-maintainability held unsustainable. Judgment set aside; matter remanded for adjudication on merits. (Para 15)

6. Precedents – Aqeel Ahmed (Khan) v. Smt. Farzana Khatun, FA No. 1017/2022 (MP HC) – Settu v. Reshma Sulthana, C.M.A. No.2192/2017 (Madras HC) – Followed.
   Division Bench relied on earlier judgments where maintainability of similar proceedings was recognized. (Para 13)

7. Family Courts – Settlement – Liberty to parties.
   Since proceedings are maintainable, parties are permitted to appear before the trial Court and pursue dissolution/settlement. (Paras 16–17)

8. Direction – Circulation of Judgment.
   Order directed to be circulated to all Civil/Family Courts through Registrar General. (Para 19)

ANALYSIS

The Division Bench addressed a narrow but significant question: whether a Muslim male can maintain a suit for dissolution of marriage before a Family Court under the Family Courts Act, 1984, despite the Dissolution of Muslim Marriages Act, 1939 conferring an express statutory right of judicial divorce only upon Muslim women.

1. Statutory Context and Core Issue

The trial Court dismissed the husband’s divorce petition solely on the ground that no statutory provision exists enabling a Muslim male to seek dissolution through a judicial decree, unlike a Muslim woman who has recourse under Section 2 of the 1939 Act.

Thus, the maintainability question was strictly jurisdictional.

2. Scope of Section 7 of the Family Courts Act, 1984

The High Court firmly rooted its reasoning in Section 7(1) and the Explanation to the Act of 1984. The Explanation lists suits that fall within Family Court jurisdiction, including:

• dissolution of marriage

• declaration of matrimonial status

• injunctions arising out of marital relationships

Crucially, Section 7 does not distinguish between personal laws or communities.

Therefore, the Bench interpreted Section 7 as an enabling jurisdictional provision, allowing the Family Court to entertain dissolution-related proceedings irrespective of the religion of the parties.

3. Support from the Madhya Pradesh Family Court Rules, 1988

Rule 9(2)(vii) is pivotal. It directs Family Courts to register suits arising out of:

• Muslim Personal Law (Shariat) Application Act, 1937, and

• Dissolution of Muslim Marriages Act, 1939

This indicates that the High Court is empowered to issue instructions for registering suits arising under Muslim personal law generally, not only those filed by women under the 1939 Act.

The Court read these rules harmoniously with Section 7, concluding that a Muslim male’s petition grounded in personal law or marital circumstances falls squarely within Family Court jurisdiction.

4. Position under Muslim Personal Law

Muslim law recognises modes of dissolution available to the husband—Talaq, Ila, Zihar, Lian, Khula, Mubaraat—but these are non-judicial.

The Court held that, when a Muslim husband seeks judicial recognition or adjudication, the proper mechanism is through the Family Courts Act, which provides procedural access to the judicial forum.

5. Access to Justice and Constitutional Morality

A notable dimension of the judgment is constitutional:

• Denying a Muslim male access to judicial dissolution would render him “remediless”.

• Such denial would contravene constitutional morality, the “vision of justice”, and the principle that no person should be barred from judicial remedy for marital disputes.

This constitutional grounding strengthens the holding beyond statutory interpretation.

6. Precedent: MP High Court and Madras High Court

The Division Bench relied on earlier decisions:

• Aqeel Ahmed (Khan) v. Farzana Khatun (MP High Court, DB, 2022)

• Settu v. Reshma Sulthana (Madras High Court, DB, 2021)

Both recognized the maintainability of dissolution proceedings initiated by Muslim husbands.

The Bench treated these as persuasive and consistent authority substantiating the present conclusion.

7. Outcome

• The Family Court’s order was set aside as legally erroneous.

• The matter was remanded for adjudication on merits.

• Both sides were permitted to pursue settlement or dissolution proceedings before the trial Court.

• The judgment was directed to be circulated to all Civil/Family Courts—demonstrating the Court’s intent to clarify the legal position uniformly.

Civil Procedure Code, 1908 – Ss. 114, 151, Or. 47 R. 1 – Review – Scope – “Error apparent on the face of the record” – “Any other sufficient reason” – Non-consideration of vital submissions and issues though recorded in the judgment – When amounts to error apparent.;Civil Procedure Code, 1908 – Or. 21 Rr. 58, 97, 101, 103, S. 47 – Claim petition by third party / co-sharer in execution – Wrong provision quoted – Effect – Duty of appellate court to consider maintainability submissions.

[A] Civil Procedure Code, 1908 – Ss. 114, 151, Or. 47 R. 1 – Review – Scope – “Error apparent on the face of the record” – “Any other sufficient reason” – Non-consideration of vital submissions and issues though recorded in the judgment – When amounts to error apparent.

Law on review jurisdiction under S. 114 r/w Or. 47 R. 1 CPC reiterated on the basis of decisions in Sanjay Kumar Agarwal v. State Tax Officer, Kamlesh Verma v. Mayawati, State (NCT of Delhi) v. K.L. Rathi Steels Ltd., Hari Vishnu Kamath v. Syed Ahmad Ishaque, Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, Rajender Singh v. Lt. Governor, Andaman & Nicobar Islands and S. Nagaraj v. State of Karnataka etc. Review lies inter alia when there is a mistake or error apparent on the face of the record or any other sufficient reason analogous to the grounds in Or. 47 R. 1. A judgment cannot be re-heard on merits in review nor can an erroneous decision as such be corrected; but where an issue was raised, arguments were advanced and are recorded in the appellate judgment, yet such submissions having relevance and bearing on the issue involved are not considered or decided, non-consideration of such arguments and failure to record findings thereon constitutes an error of law apparent on the face of the record and also falls within “any other sufficient reason” for exercise of review jurisdiction. (Paras 22–27, 30–37, 39–41, 35, 54, 57(i)-(iii))

[B] Civil Procedure Code, 1908 – Or. 21 Rr. 58, 97, 101, 103, S. 47 – Claim petition by third party / co-sharer in execution – Wrong provision quoted – Effect – Duty of appellate court to consider maintainability submissions.

In execution of a mortgage decree, claim petition under Or. 21 R. 58 CPC filed by review petitioner (daughter of original owner and co-sharer) had been dismissed as not maintainable by Executing Court on the ground that there was no attachment and that she had neither challenged the mortgage nor impleaded mortgagee–plaintiffs in her earlier partition suit. In appeal (A.S. No. 59 of 2020), specific submissions were advanced that (i) review petitioner, not being party to the mortgage deed or mortgage suit, was not required to seek cancellation of mortgage or implead mortgagees in O.S. No. 199 of 2009; (ii) she claimed independent share as Class-I heir under the Hindu Succession Act, 1956 in the E.P. schedule property purchased by her father; (iii) Executing Court, in view of S. 47 r/w Or. 21 Rr. 58, 97, 101, 103 CPC, ought to decide all questions between parties to the suit and persons claiming through them without separate suit; and (iv) even if Or. 21 R. 58 was not the appropriate provision, wrong mention of provision would not render the claim petition non-maintainable if jurisdiction existed under Or. 21 Rr. 97, 101, 103 etc. These submissions were recorded in paras 10–12 of the appellate judgment but not addressed or decided. Held, such grounds were directly germane to the issue of maintainability of the claim petition and could not be treated as irrelevant; non-consideration thereof is an error apparent on the face of the record warranting review. (Paras 5–7, 9–12, 44–45, 49–53, 54, 57(ii))

[C] Civil Procedure Code, 1908 – Or. 41 R. 31 – Appellate judgment – Non-framing of points for determination – Whether, in facts, ground for review.

Contention that the appellate judgment in A.S. No. 59 of 2020 was vitiated for non-compliance with Or. 41 R. 31 CPC (for not framing points for determination) examined with reference to precedents in Union of India v. K.V. Lakshman, H. Siddiqui (dead) by LRs v. A. Ramalingam, K. Karuppuraj v. M. Ganesan, Malluru Mallappa (D) Thr. LRs v. Karuvathappa, Commissioner of Customs v. Canon India Pvt. Ltd., Bhagirathi v. Indradev and Laliteshwar Prasad Singh v. S.P. Srivastava (D). Court observed that while the principle as to framing of points under Or. 41 R. 31 CPC is well-settled, in the present case the appellate judgment itself recorded that “the main question raised is with regard to maintainability of the present application”, and, therefore, the question whether non-compliance with Or. 41 R. 31 per se furnishes a ground for review did not arise on the facts. (Paras 13–20, 56)

[D] Review – Appellate judgment – When liable to be set aside in review – Restoration of appeal.

Where the appellate court records various submissions of the appellant challenging the order of the Executing Court, including grounds as to independent rights in the E.P. schedule property and maintainability of claim petition even with wrong provision quoted, but does not address or return findings on those submissions and dismisses the appeal only on a narrow view of Or. 21 R. 58 CPC, the appellate judgment suffers from apparent error of law. In such circumstances, review is maintainable to prevent miscarriage of justice. Judgment and decree dated 05-01-2022 in A.S. No. 59 of 2020 set aside in review; appeal restored to its original number for fresh decision on merits. No order as to costs. (Paras 42–45, 49–55, 57–59)

ANALYSIS 

1. Original Mortgage Suit – O.S. No. 98 of 2010

   • Filed by respondents 1–4 for realization of money by redemption of mortgage against judgment-debtors including one Pallala Bujjamma and respondents 5 & 6.

   • Preliminary decree: 13.11.2011

   • Final decree: 05.08.2013

2. Execution Proceedings – E.P. No. 50 of 2013

   • Filed by decree-holders to sell the suit schedule property and realize the decree amount.

3. Claim Petition in Execution – E.A. No. 32 of 2017 (Order XXI Rule 58 r/w S.151 CPC)

   • Filed by Palla Chenchu Harikala (review petitioner) claiming 1/4th share in the E.P. schedule property as a Class I heir of late Arjunaiah @ Chenchaiah.

   • Her case:

     • E.P. schedule property was purchased by her father Arjunaiah @ Chenchaiah.

     • On his death (15.12.2000), estate devolved on his widow and children, including her.

     • She had already filed O.S. No. 199 of 2009 for partition, in which the E.P. schedule property was item No. 2.

     • That suit was decreed on 25.01.2018 allotting items 2 & 3 to her share; item 1 to judgment-debtors 1–3.

     • A.S. No. 56 of 2018 against that decree was pending.

     • Therefore, judgment-debtors could not have validly mortgaged the entire E.P. schedule property behind her back, and the decree-holders could not bring it to sale without working out her share.

   • The Executing Court:

     • Rejected her adoption by relying on the lack of proof of adoption and treated her as daughter of Arjunaiah @ Chenchaiah.

     • Yet dismissed the claim petition as not maintainable, mainly on the grounds that:

       • There was no attachment, so Order XXI Rule 58 CPC did not apply; and

       • She had not challenged the mortgage deed nor impleaded the mortgagees in O.S. No. 199 of 2009.

4. First Appeal – A.S. No. 59 of 2020

   • Filed by the review petitioner against rejection of E.A. No. 32 of 2017.

   • A Coordinate Bench of the High Court dismissed the appeal on 05.01.2022, essentially holding that:

     • Order XXI Rule 58 CPC deals with adjudication of claims regarding property under attachment,

     • The objection here was to sale of mortgaged property and therefore the application under O.21 R.58 was not maintainable.

5. Review Proceedings – Review I.A. No. 1 of 2022

   • Filed to review the appellate judgment dated 05.01.2022 in A.S. No. 59 of 2020.

   • Judgment in Review delivered on 28.11.2025 by Division Bench (RNT, J & MRK, J).

II. Core Factual Matrix Relevant to Review

• Review petitioner is admitted daughter of late Arjunaiah @ Chenchaiah; Executing Court disbelieved the plea of adoption set up by decree-holders.

• The E.P. schedule property belonged to her father and was part of joint family properties.

• In O.S. No. 199 of 2009, a partition decree recognized her 1/4th share in the properties including E.P. schedule item.

• The mortgage suit O.S. No. 98 of 2010 and mortgage decree were subsequent to filing of the partition suit.

• Her essential grievance: her independent share in the E.P. schedule property cannot be wiped out by a mortgage and mortgage decree to which she was not party.

III. Issues Before the Review Bench

From the judgment, the key issues can be distilled as:

1. Scope of Review Jurisdiction:

   • When can a High Court review its own appellate judgment under S. 114 r/w Order XLVII Rule 1 CPC?

   • Specifically, does non-consideration of vital arguments, though recorded in the judgment, amount to “error apparent on the face of the record” or “any other sufficient reason”?

2. Effect of Non-consideration of Appellant’s Submissions in A.S. No. 59 of 2020:

   • The Coordinate Bench had recorded detailed submissions of the appellant in paras 10–12, but dismissed the appeal on a narrow view of O.21 R.58 CPC.

   • Whether failure to address the recorded submissions constitutes reviewable error.

3. Whether other technical contentions warrant review:

   • Contention that only I.A. for vacation of interim order was heard, not the appeal.

   • Contention that non-compliance with Order 41 Rule 31 CPC (no formal framing of points for determination) itself is a ground for review.

IV. Exposition of Law on Review – Court’s Survey and Principles

The Bench devotes a large portion of the judgment to clarifying what review is and what it is not, relying on a long line of Supreme Court authorities. The core principles laid down (by synthesizing paras 22–41) are:

1. Grounds for Review are Narrow and Structured

   • Under S. 114 r/w Order 47 Rule 1 CPC, review lies when:

     • There is a mistake or error apparent on the face of the record, or

     • There is discovery of new and important evidence not within knowledge despite due diligence, or

     • There exists “any other sufficient reason”, which must be analogous to the previous two grounds.

2. Review Is Not an Appeal in Disguise

   • An erroneous decision cannot simply be “reheard and corrected.”

   • Questions already raised, argued, and decided cannot be re-argued in review.

   • Review is to correct apparent errors, not to re-open the entire merits.

3. Error “Apparent on the Face of the Record”

   • It must be self-evident, not requiring long-drawn reasoning.

   • But the Court acknowledges, via Hari Vishnu Kamath, that what is “apparent” is fact-sensitive and cannot be defined with mathematical precision.

   • Non-consideration of vital issues may amount to such an error.

4. Non-consideration of Relevant/Vital Issues as Ground for Review

   • From Moran Mar Basselios and Rajender Singh, the Bench derives a key rule (paras 31–37):

     • If vital issues raised by a party are not considered at all;

     • Or the judgment fails to address material aspects essential to the decision;

     • The judgment may suffer from an error apparent on the face of the record and can be reviewed to prevent miscarriage of justice.

5. Expanded Meaning of “Any Other Sufficient Reason”

   • Following Chhajju Ram, Moran Mar Basselios, Kamlesh Verma and S. Nagaraj, the Bench accepts that:

     • “Any other sufficient reason” includes situations where the order was passed under misapprehension, or

     • Where non-consideration of vital issues would lead to injustice,

     • Provided the reason is analogous to the statutory grounds.

6. Justice Over Technicalities

   • Relying particularly on S. Nagaraj, the Bench stresses that the Court has a duty to recall or review its orders in rare situations where, due to mistake or non-consideration, irremediable injustice may result.

   • Review is not to disturb finality lightly, but finality yields to justice where necessary.

In short, the Bench carefully reaffirms a classic, conservative view of review—but opens a clear window where non-consideration of recorded, relevant arguments becomes a reviewable defect.

V. Application of Principles to This Case

1. What the Executing Court Had Actually Found

The Executing Court had:

• Held that the review petitioner is indeed daughter of Arjunaiah @ Chenchaiah; the plea of her adoption was rejected.

• Accepted that E.P. schedule property is part of her father’s estate and that she had 1/4th share as per the partition decree in O.S. No. 199 of 2009.

• Still dismissed her claim petition under Order XXI Rule 58 CPC as not maintainable because:

  • There was no attachment, and

  • She had not challenged the mortgage or impleaded decree-holders in the earlier partition suit.

So the rejection was essentially technical/maintainability-based, not on denial of her status or share.

2. Submissions in A.S. No. 59 of 2020

The review Bench notes that in the first appeal:

• The appellant argued that:

  • She was not a party to the mortgage;

  • Therefore, no need to challenge the mortgage deed or implead mortgagees in O.S. No. 199 of 2009.

  • Her rights flow from Hindu Succession Act as legal heir of the original purchaser.

  • The Executing Court, by virtue of S. 47 r/w O.21 Rr. 58, 97, 101, 103 CPC, had to adjudicate all questions between parties and those claiming through them within execution, without insisting on a separate suit.

  • Even if O.21 R. 58 was not technically correct, wrong mention of provision cannot bar maintainability when jurisdiction exists, e.g. under O.21 Rr. 97, 101, 103.

• These submissions were clearly and explicitly recorded in paras 10–12 of the appellate judgment under review.

3. Defect in the Appellate Judgment

However, the Coordinate Bench in A.S. No. 59 of 2020:

• Dismissed the appeal primarily on a short point:

  • Order XXI Rule 58 CPC deals with claims in respect of attached property,

  • Here the objection was to bringing mortgaged property to sale, so the application was not maintainable.

• The Review Bench finds that:

  • The appellate judgment did not deal with these recorded submissions at all.

  • No findings were recorded on:

    • The effect of the partition decree in O.S. No. 199 of 2009;

    • The independent right of the review petitioner as co-sharer;

    • The applicability of O.21 Rr. 97, 101, 103 read with S. 47 CPC;

    • The legal effect of quoting a wrong provision (O.21 R.58) where another provision could sustain jurisdiction.

• The Bench holds this non-consideration of relevant, germane submissions to be:

  • An error of law apparent on the face of the record, and

  • Also falling within “any other sufficient reason” for exercising review power.

In other words, the problem is not that the Coordinate Bench reached a wrong conclusion on the law of O.21 R.58; the problem is that it never engaged with crucial arguments that could materially affect the maintainability analysis.

VI. Treatment of Other Contentions

1. “Only I.A. for vacation of interim order was heard, not appeal”

   • The review petitioner argued that I.A. No. 1 of 2021 (for vacating interim order) alone was heard.

   • The Review Bench rejected this:

     • Docket order dated 28.12.2021 showed the appeal was listed “for orders” on 05.01.2022.

     • The appellate judgment itself records submissions on merits, indicating the appeal was heard.

   • Hence, this ground failed.

2. Order 41 Rule 31 CPC (Points for Determination)

   • Several Supreme Court decisions on O.41 R.31 were cited on both sides.

   • The Review Bench notes:

     • The appellate judgment (para 17) records that “main question is with regard to the maintainability of the present application,” which is effectively a crystallized point for decision.

     • Therefore, the question whether non-compliance with O.41 R.31 itself is a ground for review did not arise in the present facts.

   • So the review is not allowed on O.41 R.31 ground.

The sole real ground on which review is allowed is non-consideration of recorded, relevant submissions.

VII. Final Holding and Result

1. Review Allowed

   • The Court holds that:

   Non-consideration of arguments advanced which are relevant and germane to the issue involved, though recorded in the judgment, is an error apparent on the face of the record and also a ground falling within “any other sufficient reason” for review.

2. Appellate Judgment Set Aside

   • The Judgment and Decree dated 05.01.2022 in A.S. No. 59 of 2020 is set aside in review.

3. Appeal Restored for Fresh Hearing

   • A.S. No. 59 of 2020 is restored to its original number for fresh decision on merits, this time requiring proper consideration of all the submissions recorded in paras 10–12.

4. Costs and Miscellaneous Petitions

   • No order as to costs.

   • Pending miscellaneous petitions, if any, are closed.

VIII. Doctrinal and Practical Significance

1. Clarifies When Review Lies Against an Appellate Judgment

   • This decision is a textbook application of the principle that failure to consider vital arguments, even though they are recorded, is itself a reviewable defect.

   • The Court distinguishes between:

     • Re-arguing what has already been decided (not allowed), and

     • Correcting a situation where a point was never adjudicated (allowed).

2. Important for Execution Law and Co-sharer Rights

   • Though the Bench does not decide the merits of the maintainability in this judgment, it recognizes that:

     • A co-sharer / Class-I heir with a partition decree in her favour may have a substantial claim in execution.

     • The Executing Court and Appellate Court must at least address her arguments about jurisdiction under S.47 and O.21 Rr. 58, 97, 101, 103 CPC.

3. Wrong Provision vs. Lack of Jurisdiction

   • The Court reiterates the well-recognized principle: wrong citation of a provision does not oust jurisdiction, if jurisdiction otherwise exists under the statute.

   • For practitioners, this underlines that appellate courts must look beyond mere mis-citation and examine substance of the relief and power.

4. Review as a Safety Valve for Miscarriage of Justice

   • The judgment strongly affirms that review jurisdiction is narrow but real.

   • Where important issues are simply not decided, review is the correct procedural remedy, not appeal or SLP alone.