The Gauhati High Court has dismissed a Regular Second Appeal, affirming that a Civil Judge (Junior Division) does not possess the jurisdictional authority to pass a decree of divorce or dissolve a marriage. The Court held that in districts where a Family Court has not been established, the District Judge or the Principal Civil Court of original jurisdiction is the sole competent authority to adjudicate such matrimonial matters.
Case Background
The appellant had originally filed a Matrimonial (D) Suit (No. 18/2024) before the Civil Judge (Junior Division), Hailakandi. In the suit, he prayed for a declaration of the dissolution of his marriage dated July 25, 2021, “in the form of talaq,” and sought confirmation of a written divorce executed by him on three separate dates: November 12, 2023, December 17, 2023, and January 30, 2024.
The Civil Judge (Junior Division), Hailakandi, proceeded ex-parte as the respondent-wife failed to appear. On May 15, 2025, the trial court passed a judgment decreeing that “the marriage between the parties stands dissolved in the form of ‘talaq'” and confirmed the written divorce executed by the appellant.
Aggrieved by this decree, the respondent preferred an appeal (T.A. No. 09/2025) before the Civil Judge (Senior Division), Hailakandi. On June 25, 2025, the Appellate Court set aside the trial court’s judgment and decree, declaring it a nullity on the ground that the Civil Judge (Junior Division) lacked jurisdiction to entertain such a case. The appellant then approached the High Court challenging this order.
Arguments of the Parties
The counsel for the appellant, Mr. M.J. Quadir, argued that the suit filed before the Civil Judge (Junior Division) was not a petition for divorce under the Hindu Marriage Act or Special Marriage Act but was a suit for a declaration of a legal character under Section 34 of the Specific Relief Act, 1963. He contended that the appellant merely sought a declaration that the talaq given by him was valid.
Mr. Quadir relied on the Supreme Court judgment in Samar Kumar Roy through Legal Representative (Mother) v. Jharna Bera (2017) and a coordinate Bench judgment of the Gauhati High Court in Tika Ram Nepal v. Ambika Devi, arguing that civil courts are not barred from determining the legal character of a marriage when the relief sought falls under the Specific Relief Act.
Conversely, Mr. N. Haque, counsel for the respondent, submitted that although termed a declaratory suit, the appellant was effectively seeking a decree of divorce. He argued that under Section 8 of the Family Courts Act, 1984, the jurisdiction of subordinate courts is barred. He asserted that in the absence of a Family Court, only the District Judge has the authority to entertain proceedings for the dissolution of marriage.
Court’s Observations and Analysis
Justice Mitali Thakuria, hearing the appeal, framed the substantial question of law as to whether the lower appellate court was right in setting aside the trial court’s decree on the ground of jurisdiction.
The Court observed that while the appellant claimed the suit was merely for a declaration of the validity of talaq, the trial court had specifically decreed that “the marriage between the parties stands dissolved.” Justice Thakuria noted:
“Thus it is seen that in the garb of declaration of valid talaq, the learned Civil Judge (Jr. Div.), Hailakandi had authenticated the talaq given by the appellant husband to the respondent wife. It is also not a case that a simple declaration is sought for any legal character under Section 34 of the Specific Relief Act, 1963… rather the plaintiff is seeking a decree of divorce/talaq… which is authenticated by the Court of learned Civil Judge (Jr. Div.), Hailakandi.”
The Court reiterated the settled legal principle regarding matrimonial jurisdiction:
“It is a settled law that the family disputes, the dissolution of marriage, decree of divorce under the Hindu Marriage Act or the Special Marriage Act can only be entertained by the Family Court under Sections 7 & 8 of the Family Courts Act, 1984 and in absence of the Family Court, the District Court can examine the matters.”
The High Court agreed with the lower appellate court’s finding that the Civil Judge (Junior Division) is “neither the Court with an equivalent jurisdiction, competency or authority to that of the Family Court and the District Court” to deal with such cases.
Decision
The High Court upheld the decision of the Civil Judge (Senior Division), ruling that the decree passed by the Civil Judge (Junior Division) was a nullity due to a lack of jurisdiction. The Court affirmed the appellate court’s direction granting liberty to the parties to approach the appropriate forum.
“But the learned Civil Judge (Jr. Div.), Hailakandi had no such authority or power to pass any decree of divorce/talaq.”
Consequently, the Regular Second Appeal was dismissed as being devoid of merit.
Case Details:
- Case Title: Javed Pervez Choudhury v. Begum Najifa Yasmin Choudhury
- Case No: RSA/131/2025
- Judge: Justice Mitali Thakuria
