Disclaimer: This has been reported after the availability of the order of the Court and not on media reports so as to give an accurate report to our readers.
Madhya Pradesh High Court: In an appeal filed against the order passed by the Family Court whereby the suit was dismissed under Order VII Rule 11 of the Civil Procedure Code (“CPC”) holding that divorce between the parties had already taken place as the divorce notice annexed to the plaint had been received by the wife, the Division Bench of Vivek Rusia* and Binod Kumar Dwivedi, JJ., allowed the appeal, holding that the Family Court gave unjust benefit to the husband by granting divorce without framing issues and recording evidence and treating the notice of divorce as served.
Background
The parties married in 1976, as per Muslim rituals and customs. During the survival of this marriage, the husband performed a second marriage in 1987. In 2023, he filed a suit seeking a divorce from his first wife because he had sent the notice of divorce to the first wife. After issuance of the notice, the first wife appeared through an advocate before the Family Court.
The Family Court took up the matter suo motu under Order VII Rule 11 of the CPC and held that although the notice of divorce was not received by the first wife, she had now received information of such divorce as the same notice was annexed to the plaint. Hence, divorce was effective. Accordingly, the Family Court dismissed the suit as the marriage was already dissolved via divorce.
After getting such a declaration of divorce, the husband started treating the first wife as a divorced wife and applied to change her nomination as wife in his service records.
Aggrieved, the first wife filed the present appeal challenging the divorce.
Analysis
At the outset, the Court remarked that it was surprised and shocked by how the Family Court took up the matter under Order VII Rule 11 of the CPC and granted relief to the husband, which was liable to be given only after framing the issues and recording the evidence. The purpose of filing the suit was served by the husband obtaining a declaration of divorce; therefore, even after dismissal of the suit, he did not go on appeal to get the decree of divorce. Noting this, the Court held that the order was unsustainable in law and quashed it.
The Court stated that the husband could not be permitted to take undue advantage of the appearance of the first wife in the Court and her receipt of a copy of the plaint. She would have been proceeded ex parte if she had not appeared, apprehending receipt of the divorce notice.
“Unjust benefit has been given by the Family Court Judge to the husband by treating the notice of divorce as served.”
Resultantly, the Court restored the civil suit and directed that it shall be decided as per the law. Furthermore, the parties were directed to appear before the Family Court.
[Y v. Z, First Appeal No. 1389 of 2023, decided on 14-10-2025]
*Order authored by: Justice Vivek Rusia
Advocates who appeared in this case:
For the petitioner: Rizwan Nizam
For the respondent: Padmnabh Saxena