Inclusion of Marriage Dissolution Through Notarized Affidavits

Source: Gauhati High Court

Why in News?

Justice Pranjal Das in the case of Tufazzul Hussain v. Fulmala Khatun (2025) held that a marriage cannot be dissolved by way of an affidavit made before a Notary, and in the absence of material showing invocation of the Dissolution of Muslim Marriages Act, 1939, a claim of divorce based merely on a notarised affidavit cannot be accepted.

What was the Background of Tufazzul Hussain v. Fulmala Khatun (2025) Case? 

• The case arose from a criminal revision petition challenging an order passed by the Principal Judge, Family Court, Barpeta. 
• The Family Court had directed the petitioner-husband to pay Rs. 3,000 per month as maintenance to the respondent-wife. 
• The respondent-wife had approached the Family Court under Section 125 CrPC claiming maintenance. 
• She asserted that she had married the petitioner under Islamic law, had lived with him, and was later driven out after alleged torture and monetary demands. 
• The petitioner disputed the marital relationship and contended that the respondent had an earlier marriage with one Manik Ali which had not been lawfully dissolved. 
• The respondent admitted in cross-examination that she had married her earlier husband in 2000 and had three children from that marriage. 
• She stated that her earlier husband did not divorce her, but that she had given divorce to him in 2017. 
• Both sides referred to a photocopy of an affidavit mentioning divorce, but the document was not exhibited during the proceeding. 
• The respondent mentioned dissolving her marital tie with Manik Ali from her side and stated about submitting a copy of the affidavit, while retaining the original. 
• During the proceeding before the Family Court, the respondent could not adduce sufficient evidence to show that her earlier marriage with Manik Ali had been lawfully dissolved.

What were the Court's Observations? 

• The Court observed that a marriage cannot be dissolved by way of an affidavit made before a Notary, stating "Needless to say that a marriage cannot be dissolved by way of an affidavit made before the Notary." 
• The Court noted that there was no material to indicate that the respondent invoked the provisions of the Dissolution of Muslim Marriages Act, 1939 for dissolving her marital tie with Manik Ali. 
• The Court recorded that the earlier marriage of the respondent with Manik Ali was an admitted position. 
• The Court found that the respondent could not adduce sufficient evidence to show that her earlier marriage had been lawfully dissolved and that she was no longer his legally wedded wife. 
• The Court clarified that merely referring to an affidavit in cross-examination and submitting a copy in the maintenance proceeding would not constitute sufficient proof of dissolution of earlier marriage. 
• The Court held that any affidavit sworn by the respondent before Notary Public would not constitute legally acceptable dissolution of the marriage. 
• The Court stated that such evidence would not confer any status of wife of the present petitioner, even if it was accepted that she had married the present petitioner. 
• The Court concluded that the Family Court erred in overlooking this aspect and in accepting the marital status of the respondent as wife of the petitioner. 
• The Court held that the wife could not have claimed maintenance from the petitioner husband as his legally wedded wife and therefore, she cannot be granted maintenance from his side. 
• The impugned judgment and order passed by the Principal Judge, Family Court was set aside and quashed. 
• The revision petition was allowed and disposed of.

What is the Dissolution of Muslim Marriages Act, 1939? 

About: 

• The Dissolution of Muslim Marriages Act, 1939 is a legislation that provides Muslim women in India with the right to seek divorce under certain specified grounds. 
• The Act was enacted to consolidate and clarify the law relating to the dissolution of Muslim marriages. 
• Prior to this Act, Muslim women had limited rights to seek divorce, and the law governing divorce was often unclear and varied based on different schools of Islamic jurisprudence. 
• The Act provides specific grounds on which a Muslim woman can seek divorce, including husband's whereabouts unknown for four years, failure to provide maintenance for two years, husband's imprisonment for seven years or more, husband's failure to perform marital obligations for three years, husband's impotency, husband's insanity or suffering from leprosy or virulent venereal disease, repudiation of marriage by the wife before attaining puberty, cruelty by the husband, and any other ground recognized under Muslim law. 
• The Act empowers Muslim women to approach the court for dissolution of marriage on these grounds. 

Marriage Dissolution Requirements: 

• Under Muslim law, marriage dissolution requires following proper legal procedures as prescribed by law. 
• A marriage cannot be dissolved merely by executing an affidavit before a Notary Public. 
• For a valid divorce under the Dissolution of Muslim Marriages Act, 1939, the woman must invoke the provisions of the Act and follow the prescribed procedure. 
• The dissolution must be legally established through proper evidence and documentation, not just through unilateral declarations or private documents. 
• Merely referring to or submitting a copy of a notarized affidavit does not constitute sufficient proof of lawful dissolution of marriage. 
• The dissolution of marriage must be done through judicial process or through recognized legal methods under Muslim personal law. 
• Without proper legal procedure, a claimed divorce lacks legal validity and cannot establish changed marital status.