Allahabad High Court Sets Aside Divorce Order Based on ‘Non-Existent’ Law

The Allahabad High Court recently set aside a divorce decree granted by a Family Court in Banda, holding that the judgment was legally unsustainable as it relied on a statute that does not exist.

The division bench of Justices Atul Sreedharan and Vivek Saran was hearing a first appeal filed by the husband challenging the family court’s order dated January 28, 2026, by which the respondent-wife had been granted divorce. The high court found that the trial court had repeatedly referred to a “Muslim Women Marriage Dissolution Act, 1986,” a statute that has no existence in law.

The record showed that the wife had instituted proceedings seeking dissolution of marriage, but the plaint mentioned an incorrect statutory provision. While noting that such an error in pleadings is not fatal by itself, the high court clarified that a court is expected to apply the correct law while adjudicating the matter.

The bench observed that there are two distinct enactments governing the field: the Dissolution of Muslim Marriages Act, 1939, which provides for dissolution of marriage at the instance of a Muslim woman, and the Muslim Women (Protection of Rights on Divorce) Act, 1986, which deals with rights arising after divorce. The latter, the court noted, cannot be invoked for seeking dissolution of marriage.

Despite this settled legal position, the family court not only entertained the claim but also proceeded to decide the case by repeatedly invoking the non-existent statute. The high court pointed out that the error was not confined to a stray reference but permeated the entire judgment, including the final operative portion where relief was granted.

Court took note of the fact that even in the concluding paragraph, the family court recorded that the wife’s case was liable to be partly allowed under the “Muslim Women Marriage Dissolution Act, 1986.” Such repeated reliance on an incorrect and non-existent law, the bench held, could not be treated as a mere typographical mistake.

Expressing concern over the manner in which the judgment was authored, the high court remarked that a court of law is duty-bound to ensure that the statutory provisions it relies upon actually exist. It added that an error originating in the plaint does not justify its repetition in the final judgment.

The bench held that granting relief under a non-existent statute renders the decision legally untenable.

It further observed that the lapse reflected a casual approach on the part of the trial court, particularly considering that the judgment was delivered by a judicial officer of the rank of Senior District Judge.

"It is for the court to ensure that the statute referred to by it actually exists, merely an error in the plaint or the proceedings does not justify the learned Trial Court repeating the same error in the final judgment," the bench said.

In view of these findings, the high court set aside the impugned order and remanded the matter to the family court for fresh adjudication. It clarified that a de novo trial is not required and that the trial court may proceed on the basis of evidence already on record, unless it finds it necessary to admit additional material.

The high court also directed that the matter be decided expeditiously and preferably within a period of three months from the date of communication of its order.

With these directions, the appeal was allowed and the case was remitted back to the family court for a fresh decision in accordance with law.

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Case Title: Hafij vs. Smt. Parveen Khatoon

Order Date: April 1, 2026

Bench: Justices Atul Sreedharan and Vivek Saran