Contempt of court
Akbar Khan
(Querist) 01 April 2012
This query is : Resolved
Married in 2007 both Muslim, In Nov. 2009 I divorced her through a Talaqnama, dispatched through post to the available address of the lady, which she refused to accept, later in Oct 2010 the lady filled a case of restitution of Conjugal right in Court, were she prayed for 1) “A decree of Conjugal right, directing defendant to restore the matrimonial relationship as legally wedded husband of Plaintiff” 2) “ A decree of permanent prohibitory injuction, restraining the defendant from contracting second marriage” . The Hon’ble court passed the order as “ the non-applicant is restrained till next date of hearing from solemnizing another marriage.” “Issue notice to non-applicant for his appearances & filling of objections to this application”. I have filed my objections & in none of the hearing any discussion about Status Quo was discussed.
I solemnized another married, now the lady has applied for the Contempt of Court, I submitted my objection as:
1) Suit of Plaintiff is not maintainable u/s 16 & 20 CPC as this Court lacks Jurisdiction, as Respondent resides in another District & carries his personal gain in the same district. In view of Section 16 & 20 of CPC this court lacks jurisdiction to try the suit & in order passed by this court is without Jurisdiction so application merits dismissal.
My query is what the credibility of this Contempt,
SAINATH DEVALLA
(Expert) 01 April 2012
Dear Akbar,
One thing is that the Talaqnama was rejected by your wife.If she had received it,she could have not gone for RCR.Actually there is no provision for RCR in Muslim Law, or Muslim Marriage Act.
Go through section 20 cpc.
20. Other suits to be instituted where defendants reside or cause of action arises.
Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
2[Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in 3[India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
Illustrations
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at Benaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant object, the suit cannot proceed without the leave of the Court.
COMMENTS
(i) Facts pleaded which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. For that fact pleaded must have relevance to the lis/dispute; Union of India v. Adani Exports Ltd., AIR 2002 SC 126.
(ii) Where the agreement stated that jurisdiction regarding all disputes is at Delhi where the agreement has been signed and executed while the agreement by parties was not signed at Delhi but at some other place, then the agreement cannot be said to be conferring exclusive jurisdiction to Civil Court at Delhi. Party can file a suit under section 20(c) at place where cause of action wholly or partly arose; Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., AIR 1999 MP 271.
(iii) Where the agreement was an agreement for sale of movable property then sections 16 and 19 would not govern the cause of action in such case but section 20 of the Code would be attracted for determining jurisdiction of Court; Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd., AIR 1999 MP 271.
1. Explanation I omitted by Act No. 104 of 1976, sec. 7 (w.e.f. 1-2-1977).
2. Subs, by Act No. 104 of 1976, sec. 7, for "Explanation II" (w.e.f. 1-2-1977).
3. Subs. by Act 2 of 1951, sec. 3, for "the States" (w.e.f. 1-4-1951)
Raj Kumar Makkad
(Expert) 01 April 2012
I think your query stand resolved by reading the wise reply of Devalla.
Nadeem Qureshi
(Expert) 02 April 2012
Dear Akbar Khan
as per Muslim law RCR can be file by any parties and it is equated with Specific performance of the contract. but as per your information you send a talaqnama to her but she refuse to accept, if you have the copy of talaqnama signed by you before witness and the witness is truly said before the court that you pronounce the talaq thrice before them, it can be prove that the talaq has been completed. you can file an objection before the court that you have given a talaq to her by way of this talaqnama and pronounce talaq, talaq, talaq, thrice before the witness, the suit for RCR is not maintanable.
feel free to call
SAINATH DEVALLA
(Expert) 02 April 2012
Dear Akbar,
RCR is not defined either in the Muslim Law or the Muslim Marriage Act,or the dissolution of muslim marriage act 1939.
Anyway I am giving a part of it:
(Concept of Marriage and Divorce under Muslim Law)
Marriage or “Nikah” in Islamic law is a contract pure and simple needing no writing and no scared rites. All that is necessary is offer and acceptance made in the presence and hearing of two male or female witnesses and recording the factum of marriage in the “Nikah” Register maintained in every mosque signed by the parties and attested by witnesses. It is payable to the wife on the dissolution of marriage or death or divorce. In India, there is no need to register the Muslim marriage, as there is no law requiring registration.
There are six forms of divorce recognized under Islamic Law. They are Talaq, Talaq bu Tafweez, Kula and Mubaraat, Illah, Zibar and Lian. Talaq confers on Muslim husband the privilege of being able to discard his wife whenever he chooses to do so for reasons good, bad or indifferent indeed for no reason at all. Talaq-i-Tufeez is the exercise of the right of divorce by the wife by virtue of the power delegated to her husband at the time of marriage or even thereafter, Kula and Maturate are two forms of dissolution of marriage by consent. It is thus a kind of divorce by mutual consent. Illah is a constructive divorce in which the husband swears not to have sexual intercourse with his wife for 4 months and abstains from doing so. Zihar is a mode of divorce in which the husband compares his wife with his mother or any other female within prohibited degree. Lian is a divorce in which there is imputation of adultery to the wife by the husband and the wife is entitled to file a suit for dissolution of marriage on the false charge of adultery.
The Dissolution of Muslim Marriage Act, 1939 enables a Muslim wife to seek divorce through court on the ground of, whereabouts of the husband are unknowns for 4 years, failure of husband to provide for the maintenance of the wife for 2 years, sentence of imprisonment of the husband for 7 years, failure to perform martial obligations, impotency of the husband, or insanity of the husband, Repudiation of marriage by the wife before attaining the of 18 years cruelty of the husband and any other ground relevant at that point of time.
Muslim Marriage Laws
Under Muslim personal law a suit has to be filed either by husband or wife on withdrawal from the society of other without lawful ground.
No provision so far enabling parties to the marriage parties to the marriage to seek the remedy of judicial separation.
No provision in Mohammedan Law for declaration of marriage as nullity for it can be annuted, though it may be repudiated by a Muslim wife and husband.
Muslim Law recognizes two forms of divorce by mutual consent khul or khula (divorce at the request of wife) and Mubaraa or mubaraat (dissolution of marriage by agreement).
Section 2 of the Dissolution of Muslim Marriage Act, 1939
Grounds for Muslim Woman.
Not heard for 4 years.
Failure to provide maintenance for two years.
Husband sentenced for 7 years imprisonment or upwards.
Failure to platform martial obligations for three years.
Impotency at the time of marriage and continuation.
Insanity for two years or suffering from leprosy or a virulent venereal disease.
Marriage before attaining age of 15 years and repudiation before attaining the age of 18 years.
Cruelty in the form of habitually assaulting, associating with women of evil repute, force to lead an immoral life, interfering into the wife’s property, obstruction to observe her religious practice, not equally treating with other wives etc.,
RCR can be filed eiter by the husband or wife,but that excluded Muslims,and christians.
Deepak Nair
(Expert) 02 April 2012
Well and sufficiently advised in detail by Mr.Sainath.
Akbar Khan
(Querist) 02 April 2012
Sir,
As I solemnized another married,the lady has applied for the Contempt of Court,my query is what is credibility of this Contempt.
Guest
(Expert) 04 April 2012
Dear Akbar,
Credibility of contempt stands well unless you get the stay vacated by practically challenging the jurisdiction of the court issuing a stay order. Mere presumption cannot make any court order null & void, unless that is formally treated as such.
