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Dismissal of divorce petition

(Querist) 21 July 2018 This query is : Resolved 
Dear Experts,

There is a case pending before the Hon'ble District court at New Delhi for 4 years and I am on behalf of respondent wife. The petition for declaration of dissolution of marriage under Muslim Law, 1939 has been filed by petitioner husband stating that he has given instant triple talaq in 2014. Now the judgement of Sharya Bano vs. UOI has came last year which held that the instant triple talaq is unconstitutional.

So, my question is can I file an application of dismissal/rejection of petition on the ground that such a petition is voidable on the ground that such practice is held illegal, unconstitutional, and in violation of Articles 14 of Constitution?

Plz revert ASAP.

R.K Nanda (Expert) 22 July 2018
Yes, you can file said petition.
Vijay Raj Mahajan (Expert) 22 July 2018
Petition for dissolution of marriage under the Dissolution of the Muslim Marriages Act,1939 can only be filled by the wife only not the husband.
Read the section 2 of the Act which clearly state " A woman married under the Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:- ...."

You say that you are defending this petition of divorce filled by the husband under this Act of 1939 on behalf of the respondent/wife, and that too for last 4 years. Were you sleeping all these years to challenge the petition of the husband filled under this Act as not admissible at all as he was not eligible to file it under section 2 of the Act and on the basis of the Supreme Court judgment in Sharya Bano vs UOI case you want to challenge it as void.
What sort of lawyer you are that without reading the Act itself you take up case and appear in the court.

Dr J C Vashista (Expert) 22 July 2018
Well analysed and advised by expert Mr. Vijay Mahajan I agree and appreciate.
Read the provisions of law before filing any case. Do your home/ professional work to avoid any embracement in the Court room.
Imtiyaz Hussain (Querist) 24 July 2018
With due respect Mr. Raj Mahajan, I was not sleeping I received this case few days ago. I have not appeared before court on a single date.Moreover Sir did I say anywhere that the husband had filed a divorce petition under section 2 of the dissolution of the Muslim Marriage Act, 1939. I said that he had filed a petition for declaration of divorce for dissolution of marriage. Plz mark word "Declaration" it means he had already pronounced divorce now he wants to declare it. I am doing my research on this before appearing in the court. Dont worry I wont embarrass our profession.

And Ms. Kamakshi dont be so arrogant if your cant encourage anyone so please don't say negative about anyone. Moreover why should I file a divorce petition under special marriage act Section 28 of the Special Marriage Act when the wife (my client) dont want to take divorce .
Vijay Raj Mahajan (Expert) 24 July 2018
Whether for dissolution of marriage or declaration of divorce decree already obtained by triple talaq by husband, by no means husband entitled to move Family Court under the Dissolution of Muslim Marriage Act,1939.
That right to file any petition is with Wife only not Husband.
This should be clear in the mind, rest you took case recently and matter is pending for last 4 years what was being done for last 4 years must be mentioned in the various court orders as well the written statement on behalf of wife filled against the petition of the husband, did you not inspect the complete case file of the court in this case while doing your research work outside courtroom in such website forums?
As far senseless suggestions made for filling petition under the Special Marriage Act,1954 is concerned, when this Muslim Marriage was not registered under the Act of 1954 how any petition under this Act could be filled, how the court get jurisdiction to entertain any petition under the Special Marriage Act,1954.
Just immature suggestion given by person who known nill about the Act of 1954.

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