Maintenance case under sec.125 - when husband taken the plea of divorce has given earlier in his written statement/counter - he has to prove the same when denied - Writtenstatement can not be considered as Talak =
Mulla on Principles of Mahomedan Law (Nineteenth Edition,
1990) states vide para 310:-
"310. Talak may be oral or in writing.__
A talak may be effected
(1) orally (by spoken words) or
(2) by a written document called a talaknama (d).
(1) Oral Talak. __ No particular form of
words is prescribed for effecting a talak. If the
words are express (saheeh)or well understood as
implying divorce no proof of intention is required.
If the words are ambiguous (kinayat), the intention
must be proved (e).
It is not necessary that the
talak should be pronounced in the presence of the
wife or even addressed to her (f).
In a Calcutta
case the husband merely pronounced the word
"talak" before a family council and this was held
to be invalid as the wife was not named (g).
This
case was cited with approval by the Judicial
Committee in a case where the talak was valid
though pronounced in the wife's absence, as the
wife was named (h).
The Madras High Court has
also held that the words should refer to the wife (i).
The talak pronounced in the absence of the wife
takes effect though not communicated to her, but
for purposes of dower it is not necessary that it
should come to her knowledge (j); and
her alimony
may continue till she is informed of the divorce(k).
As the divorce becomes effective for purposes
of dower only when communicated to the wife,
limitation under Art. 104 for the wife's suit for
deferred dower ran from the time when the divorce
comes to her notice (l), under the Act of 1908. See
also the Limitation Act, 1963.
Words of divorce.__ The words of divorce
must indicate an intention to dissolve the marriage.
If they are express (saheeh), e.g., "Thou art
divorced," "I have divorced thee," or "I divorce
my wife for ever and render her haram from me"
[Rashid Ahmad v. Anisa Khatun (1932) 59 I.A.
21], they clearly indicate an intention to dissolve
the marriage and no proof of intention is
necessary. But if they are ambiguous (kinayat),
e.g., "Thou art my cousin, the daughter of my
uncle, if thou goest" [Hamid Ali v. Imtiazan (1878)
2 All.71] or "I give up all relations and would have
no connection of any sort with you" [Wajid Ali v.
Jafar Husain (1932) 7 Luck, 430, 136 I.C. 209,
('32) A.O.34], the intention must be proved.
Pronouncement of the word talak in the
presence of the wife or when the knowledge of
such pronouncement comes to the knowledge of
the wife, results in the dissolution of the marriage.
The intention of the husband is inconsequential.
Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys.
L.J. 566.
If a man says to his wife that she has been
divorced yesterday or earlier, it leads to a divorce
between them, even if there be no proof of a
divorce on the previous day or earlier."
The respondent No.2 ought to have adduced
evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed.
A plea of previous divorce taken in the written statement
cannot at all be treated as pronouncement of talaq by the husband on
wife on the date of filing of the written statement in the Court
followed by delivery of a copy thereof to the wife. So also the
affidavit dated 31.8.1988, filed in some previous judicial proceedings
not inter parte, containing a self-serving statement of respondent no.2,
could not have been read in evidence as relevant and of any value.
For the foregoing reasons, the appeal is allowed. Neither the
marriage between the parties stands dissolved on 5.12.1990 nor does
the liability of the respondent No.2 to pay maintenance comes to an
end on that day.
The respondent No.2 shall continue to remain liable
for payment of maintenance until the obligation comes to an end in
accordance with law.
CASE NO.:
Appeal (crl.) 465 of 1996
PETITIONER:
Shamim Ara
RESPONDENT:
State of U.P. & Anr.
DATE OF JUDGMENT: 01/10/2002
BENCH:
R.C. LAHOTI & P.VENKATARAMA REDDI.
JUDGMENT:
J U D G M E N T
R.C. Lahoti, J.
Shamim Ara, the appellant and Abrar Ahmad, the respondent
no.2 were married some time in 1968 according to Muslim Shariyat
Law.
Four sons were born out of the wedlock. On 12.4.1979, the
appellant, on behalf of herself and for her two minor children, filed an
application under Section 125 Cr.P.C. complaining of desertion and
cruelty on the part of respondent no.2 with her. By order dated
3.4.1993 the learned Presiding Judge of the Family Court at Allahabad
refused to grant any maintenance to the appellant on the ground that
she was already divorced by the respondent and hence not entitled to
any maintenance.
However, maintenance at the rate of Rs.150/- per
month was allowed for one son of the appellant for the period during
which he remained a minor; the other one having become major
during the pendency of the proceedings.
The respondent no.2 in his reply (written statement) dated
5.12.1990, to the application under Section 125 Cr.P.C., denied all the
averments made in the application.
One of the pleas taken by way of
additional pleas is that he had divorced the appellant on 11.7.1987 and
since then the parties had ceased to be spouses. He also claimed
protection behind the Muslim Women (Protection of Rights on
Divorce) Act, 1986 and submitted that the respondent no.2 had
purchased a house and delivered the same to the appellant in lieu of
Mehar (Dower), and therefore, the appellant was not entitled to any
maintenance. No particulars of divorce were pleaded excepting
making a bald statement as already stated hereinabove.
The appellant emphatically denied having been divorced at any
time.
The respondent no.2, when he appeared in the witness-box,
stated having divorced the appellant on 11.7.1987 at 11 a.m. in the
presence of Mehboob and other 4-5 persons of the neighbourhood. He
further stated that since 1988 he had not paid anything either to the
appellant or to any of the four sons for their maintenance. The
divorce said to have been given by him to the appellant was a triple
talaq though such a fact was not stated in the written statement.
The Family Court in its order dated 3.4.1993 dealt with and
upheld a strange story of divorce totally beyond the case set up by the
respondent no.2. The learned Presiding Judge referred to some
affidavit dated 31.8.1988 said to have been filed by the respondent
No.2 in some civil suit details whereof are not available from the
record of the present case but certainly to which litigation the
appellant was not a party. In that affidavit it was stated by the
respondent no.2 that he had divorced the appellant 15 months before.
The learned Judge held that from such affidavit the plea of the
respondent no.2 found corroboration of his having divorced the
appellant. The learned Judge concluded that the appellant was not
entitled to any maintenance in view of her having been divorced.
The appellant preferred a revision before the High Court. The
High Court held that the divorce which is alleged to have been given
by the respondent no.2 to the appellant was not given in the presence
of the appellant and it is not the case of the respondent that the same
was communicated to her. But the communication would stand
completed on 5.12.1990 with the filing of the written statement by the
respondent no.2 in the present case. Therefore, the High Court
concluded that the appellant was entitled to claim maintenance from
1.1.1988 to 5.12.1990 (the later date being the one on which reply to
application under Section 125 Cr.P.C. was filed by the respondent
No.2 in the Court) whereafter her entitlement to have maintenance
from respondent no.2 shall cease. The figure of maintenance was
appointed by the High Court at Rs.200/-.
The appellant has filed this appeal by special leave. The
singular issue arising for decision is whether the appellant can be said
to have been divorced and the said divorce communicated to the
appellant so as to become effective from 5.12.1990, the date of filing
of the written statement by the respondent no.2 in these proceedings.
None of the ancient holy books or scriptures of muslims
mentions in its text such a form of divorce as has been accepted by the
High Court and the Family Court. No such text has been brought to
our notice which provides that a recital in any document, whether a
pleading or an affidavit, incorporating a statement by the husband that
he has already divorced his wife on an unspecified or specified date
even if not communicated to the wife would become an effective
divorce on the date on which the wife happens to learn of such
statement contained in the copy of the affidavit or pleading served on
her.
Mulla on Principles of Mahomedan Law (Nineteenth Edition,
1990) states vide para 310:-
"310. Talak may be oral or in writing.__
A talak may be effected
(1) orally (by spoken words) or
(2) by a written document called a talaknama (d).
(1) Oral Talak. __ No particular form of
words is prescribed for effecting a talak. If the
words are express (saheeh)or well understood as
implying divorce no proof of intention is required.
If the words are ambiguous (kinayat), the intention
must be proved (e).
It is not necessary that the
talak should be pronounced in the presence of the
wife or even addressed to her (f).
In a Calcutta
case the husband merely pronounced the word
"talak" before a family council and this was held
to be invalid as the wife was not named (g).
This
case was cited with approval by the Judicial
Committee in a case where the talak was valid
though pronounced in the wife's absence, as the
wife was named (h).
The Madras High Court has
also held that the words should refer to the wife (i).
The talak pronounced in the absence of the wife
takes effect though not communicated to her, but
for purposes of dower it is not necessary that it
should come to her knowledge (j); and
her alimony
may continue till she is informed of the divorce(k).
As the divorce becomes effective for purposes
of dower only when communicated to the wife,
limitation under Art. 104 for the wife's suit for
deferred dower ran from the time when the divorce
comes to her notice (l), under the Act of 1908. See
also the Limitation Act, 1963.
Words of divorce.__ The words of divorce
must indicate an intention to dissolve the marriage.
If they are express (saheeh), e.g., "Thou art
divorced," "I have divorced thee," or "I divorce
my wife for ever and render her haram from me"
[Rashid Ahmad v. Anisa Khatun (1932) 59 I.A.
21], they clearly indicate an intention to dissolve
the marriage and no proof of intention is
necessary. But if they are ambiguous (kinayat),
e.g., "Thou art my cousin, the daughter of my
uncle, if thou goest" [Hamid Ali v. Imtiazan (1878)
2 All.71] or "I give up all relations and would have
no connection of any sort with you" [Wajid Ali v.
Jafar Husain (1932) 7 Luck, 430, 136 I.C. 209,
('32) A.O.34], the intention must be proved.
Pronouncement of the word talak in the
presence of the wife or when the knowledge of
such pronouncement comes to the knowledge of
the wife, results in the dissolution of the marriage.
The intention of the husband is inconsequential.
Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys.
L.J. 566.
If a man says to his wife that she has been
divorced yesterday or earlier, it leads to a divorce
between them, even if there be no proof of a
divorce on the previous day or earlier."
[(f) Ma Mi v. Kallander Ammal, supra;
Ahmad Kasim v. Khatoon Bibi (1932) 59
Cal. 833, 141 I.C. 689, ('33) A.C. 27;
Fulchand v. Nazib Ali (1909) 36 Cal.
184, 1 I.C. 740; Sarabai v. Rabiabai
(1905) 30 Bom. 536 (obiter).
(g) Furzund Hussein v. Janu Bibee (1878) 4
Cal. 588.
(h) Rashid Ahmad v. Anisa Khatoon (1932)
59 I.A. 21, 54 All.46, 135 I.C. 762, ('32)
A.P.C. 25.
(i) Asha Bibi v. Kadir, supra.
(j) Fulchand v. Nazib Ali, supra.
(k) Ma Mi v. Kallandar Ammal, supra;
Abdul Khader v. Azeeza Bee (1944) 1
M.L.J. 17, 214 I.C. 38, ('44) A.M. 227.
(l) Kathiyumma v. Urathel Marakkar (1931)
133 I.C. 375, ('31) A.M. 647.]
The statement of law by Mulla as contained in para 310 and footnotes
thereunder is based on certain rulings of Privy Council and the High
Courts. The decision of A.P. High Court in (1975) 1 APLJ 20 has
also been cited by Mulla in support of the proposition that the
statement by husband in pleadings filed in answer to petition for
maintenance by wife that he had already divorced the petitioner (wife)
long ago operates as divorce.
We will offer our comments on this a little later. Immediately
we proceed to notice a few other authorities.
In Dr. Tahir Mahmood's 'The Muslim Law of India' (Second
Edition, at pp.113119), the basic rule stated is that a Muslim husband
under all schools of Muslim Law can divorce his wife by his unilateral
action and without the intervention of the Court. This power is known
as the power to pronounce a talaq. A few decided cases are noticed by
the learned author wherein it has been held that a statement made by
the husband during the course of any judicial proceedings such as in
wife's suit for maintenance or restitution of conjugal rights, or the
husband's plea of divorce raised in the pleadings did effect a talaq.
Such liberal view of talaq bringing to an end the marital
relationship between Muslim spouses and heavily loaded in favour of
Muslim husbands has met with criticism and strong disapproval at the
hands of eminent jurists.
V. Khalid, J., as His Lordship then was, observed in
Mohammed Haneefa Vs. Pathummal Beevi, 1972 K.L.T. 512 __ "I
feel it my duty to alert public opinion towards a painful aspect that
this case reveals. A Division Bench of this court, the highest court for
this State, has clearly indicated the extent of the unbridled power of a
muslim husband to divorce his wife. I am extracting below what
Their Lordships have said in Pathayi v. Moideen (1968 KLT 763).
"The only condition necessary for the valid
exercise of the right of divorce by a husband is that
he must be a major and of sound mind at that time.
He can effect divorce whenever he desires. Even
if he divorces his wife under compulsion, or in
jest, or in anger that is considered perfectly valid.
No special form is necessary for effecting divorce
under Hanafi law .. The husband can
effect if by conveying to the wife that he is
repudiating the alliance. It need not even be
addressed to her. It takes effect the moment it
comes to her knowledge."
Should muslim wives suffer this tyranny for all times? Should their
personal law remain so cruel towards these unfortunate wives? Can it
not be amended suitably to alleviate their sufferings? My judicial
conscience is disturbed at this monstrosity. The question is whether
the conscience of the leaders of public opinion of the community will
also be disturbed."(p.514)
In an illuminating judgment, virtually a research document, the
eminent judge and jurist V.R. Krishna Iyer, J., as His Lordship then
was, has made extensive observations. The judgment is reported as
A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261. It would
suffice for our purpose to extract and reproduce a few out of the
several observations made by His Lordship:-
"The interpretation of a legislation,
obviously intended to protect a weaker section of
the community, like women, must be informed by
the social perspective and purpose and, within its
grammatical flexibility, must further the beneficent
object. And so we must appreciate the Islamic
ethos and the general sociological background
which inspired the enactment of the law before
locating the precise connotation of the words used
in the statute. (para 6)
"Since infallibility is not an attribute of the
judiciary, the view has been ventured by Muslim
jurists that the Indo-Anglian judicial exposition of
the Islamic law of divorce has not exactly been just
to the Holy Prophet or the Holy Book. Marginal
distortions are inevitable when the Judicial
Committee in Downing Street has to interpret
Manu and Muhammad of India and Arabia. The
soul of a culture __ law is largely the formalized
and enforceable expression of a community's
cultural norms __ cannot be fully understood by
alien minds. The view that the Muslim husband
enjoys an arbitrary, unilateral power to inflict
instant divorce does not accord with Islamic
injunctions." (para 7)
"It is a popular fallacy that a Muslim male
enjoys, under the Quaranic Law, unbridled
authority to liquidate the marriage. "The whole
Quoran expressly forbids a man to seek pretexts
for divorcing his wife, so long as she remains
faithful and obedient to him, 'if they (namely,
women) obey you, then do not seek a way against
them'." (Quaran IV:34). The Islamic "law gives to
the man primarily the faculty of dissolving the
marriage, if the wife, by her indocility or her bad
character, renders the married life unhappy; but in
the absence of serious reasons, no man can justify
a divorce, either in the eye of religion or the law.
If he abandons his wife or puts her away in simple
caprice, he draws upon himself the divine anger,
for the curse of God, said the Prophet, rests on him
who repudiates his wife capriciously." (para 7)
"Commentators on the Quoran have rightly
observed __ and this tallies with the law now
administered in some Muslim countries like Iraq __
that the husband must satisfy the court about the
reasons for divorce. However, Muslim law, as
applied in India, has taken a course contrary to the
spirit of what the Prophet or the Holy Quoran laid
down and the same misconception vitiates the law
dealing with the wife's right to divorce." (para 7)
"After quoting from the Quoran and the
Prophet, Dr. Galwash concludes that "divorce is
permissible in Islam only in cases of extreme
emergency. When all efforts for effecting a
reconciliation have failed, the parties may proceed
to a dissolution of the marriage by 'Talaq' or by
'Khola'. . . . . . . . . . . . . . Consistently with the
secular concept of marriage and divorce, the law
insists that at the time of Talaq the husband must
pay off the settlement debt to the wife and at the
time of Kholaa she has to surrender to the husband
her dower or abandon some of her rights, as
compensation." (para 7)
There is yet another illuminating and weighty judicial opinion
available in two decisions of Gauhati High Court recorded by Baharul
Islam, J. (later a Judge of the Supreme Court of India) sitting singly in
Sri Jiauddin Ahmed Vs. Mrs. Anwara Begum, (1981) 1 GLR 358
and later speaking for the Division Bench in Must. Rukia Khatun Vs.
Abdul Khalique Laskar, (1981) 1 GLR 375. In Jiauddin Ahmed's
case a plea of previous divorce, i.e. the husband having divorced the
wife on some day much previous to the date of filing of the written
statement in the Court was taken and upheld. The question posed
before the High Court was whether there has been valid talaq of the
wife by the husband under the Muslim law? The learned Judge
observed that though marriage under the Muslim law is only a civil
contract yet the rights and responsibilities consequent upon it are of
such importance to the welfare of humanity, that a high degree of
sanctity is attached to it. But inspite of the sacredness of the character
of the marriage-tie, Islam recognizes the necessity, in exceptional
circumstances, of keeping the way open for its dissolution. (Para 6).
Quoting in the judgment several Holy Quranic verses and from
commentaries thereon by well-recognized scholars of great eminence,
the learned Judge expressed disapproval of the statement that "the
whimsical and capricious divorce by the husband is good in law,
though bad in theology" and observed that such a statement is based
on the concept that women were chattel belonging to men, which the
Holy Quran does not brook. The correct law of talaq as ordained by
the Holy Quran is that talaq must be for a reasonable cause and be
preceded by attempts at reconciliation between the husband and the
wife by two arbiters __ one from the wife's family and the other from
the husband's; if the attempts fail, talaq may be effected. (Para 13). In
Rukia Khatun's case, the Division Bench stated that the correct law
of talaq, as ordained by Holy Quran, is: (i) that 'talaq' must be for a
reasonable cause; and (ii) that it must be preceded by an attempt of
reconciliation between the husband and the wife by two arbiters, one
chosen by the wife from her family and the other by the husband from
his. If their attempts fail, 'talaq' may be effected. The Division Bench
expressly recorded its dissent from the Calcutta and Bombay view
which, in their opinion, did not lay down the correct law.
We are in respectful agreement with the abovesaid observations
made by the learned Judges of High Courts. We must note that the
observations were made 20-30 years before and our country has in
recent times marched steps ahead in all walks of life including
progressive interpretation of laws which cannot be lost sight of except
by compromising with regressive trends. What this Court observed in
Bai Tahira Vs. Ali Hussain AIR 1979 SC 362 dealing with right to
maintenance of a muslim divorcee is noteworthy. To quote :
"The meaning of meanings is derived from
values in a given society and its legal
system. Article 15(3) has compelling,
compassionate relevance in the context of
S.125 and the benefit of doubt, if any, in
statutory interpretation belongs to the ill-
used wife and the derelict divorcee. This
social perspective granted, the resolution of
all the disputes projected is easy. Surely,
Parliament, in keeping with Art. 15(3) and
deliberate by design, made a special
provision to help women in distress cast
away by divorce. Protection against moral
and material abandonment manifest in
Art.39 is part of social and economic justice,
specificated in Art.38, fulfillment of which
is fundamental to the governance of the
country (Art.37). From this coign of
vantage we must view the printed text of the
particular Code." (para 7)
"Law is dynamic and its meaning cannot be
pedantic but purposeful." (para 12)
The plea taken by the husband-respondent no.2 in his written
statement may be re-noticed. The respondent No.2 vaguely makes
certain generalized accusations against the wife-appellant and states
that ever since the marriage he found his wife to be sharp, shrewd and
mischievous. Accusing the wife of having brought disgrace to the
family, the respondent No.2 proceeds to state, vide para 12 (translated
into English) __ "The answering respondent, feeling fade up with all
such activities unbecoming of the wife-petitioner, has divorced her on
11.7.87." The particulars of the alleged talaq are not pleaded nor the
circumstances under which and the persons, if any, in whose presence
talaq was pronounced have been stated. Such deficiency continued to
prevail even during the trial and the respondent No.2, except
examining himself, adduced no evidence in proof of talaq said to have
been given by him on 11.7.1987. There are no reasons substantiated
in justification of talaq and no plea or proof that any effort at
reconciliation preceded the talaq.
We are also of the opinion that the talaq to be effective has to
be pronounced. The term 'pronounce' means to proclaim, to utter
formally, to utter rhetorically, to declare to, utter, to articulate (See
Chambers 20th Century Dictionary, New Edition, p.1030). There is no
proof of talaq having taken place on 11.7.1987. What the High Court
has upheld as talaq is the plea taken in the written statement and its
communication to the wife by delivering a copy of the written
statement on 5.12.1990. We are very clear in our mind that a mere
plea taken in the written statement of a divorce having been
pronounced sometime in the past cannot by itself be treated as
effectuating talaq on the date of delivery of the copy of the written
statement to the wife.
The respondent No.2 ought to have adduced
evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed.
We do not agree with the view
propounded in the decided cases referred to by Mulla and Dr. Tahir
Mahmood in their respective commentaries, wherein a mere plea of
previous talaq taken in the written statement, though unsubstantiated,
has been accepted as proof of talaq bringing to an end the marital
relationship with effect from the date of filing of the written
statement. A plea of previous divorce taken in the written statement
cannot at all be treated as pronouncement of talaq by the husband on
wife on the date of filing of the written statement in the Court
followed by delivery of a copy thereof to the wife. So also the
affidavit dated 31.8.1988, filed in some previous judicial proceedings
not inter parte, containing a self-serving statement of respondent no.2,
could not have been read in evidence as relevant and of any value.
For the foregoing reasons, the appeal is allowed. Neither the
marriage between the parties stands dissolved on 5.12.1990 nor does
the liability of the respondent No.2 to pay maintenance comes to an
end on that day.
The respondent No.2 shall continue to remain liable
for payment of maintenance until the obligation comes to an end in
accordance with law.
The costs in this appeal shall be borne by the
respondent No.2.
Mulla on Principles of Mahomedan Law (Nineteenth Edition,
1990) states vide para 310:-
"310. Talak may be oral or in writing.__
A talak may be effected
(1) orally (by spoken words) or
(2) by a written document called a talaknama (d).
(1) Oral Talak. __ No particular form of
words is prescribed for effecting a talak. If the
words are express (saheeh)or well understood as
implying divorce no proof of intention is required.
If the words are ambiguous (kinayat), the intention
must be proved (e).
It is not necessary that the
talak should be pronounced in the presence of the
wife or even addressed to her (f).
In a Calcutta
case the husband merely pronounced the word
"talak" before a family council and this was held
to be invalid as the wife was not named (g).
This
case was cited with approval by the Judicial
Committee in a case where the talak was valid
though pronounced in the wife's absence, as the
wife was named (h).
The Madras High Court has
also held that the words should refer to the wife (i).
The talak pronounced in the absence of the wife
takes effect though not communicated to her, but
for purposes of dower it is not necessary that it
should come to her knowledge (j); and
her alimony
may continue till she is informed of the divorce(k).
As the divorce becomes effective for purposes
of dower only when communicated to the wife,
limitation under Art. 104 for the wife's suit for
deferred dower ran from the time when the divorce
comes to her notice (l), under the Act of 1908. See
also the Limitation Act, 1963.
Words of divorce.__ The words of divorce
must indicate an intention to dissolve the marriage.
If they are express (saheeh), e.g., "Thou art
divorced," "I have divorced thee," or "I divorce
my wife for ever and render her haram from me"
[Rashid Ahmad v. Anisa Khatun (1932) 59 I.A.
21], they clearly indicate an intention to dissolve
the marriage and no proof of intention is
necessary. But if they are ambiguous (kinayat),
e.g., "Thou art my cousin, the daughter of my
uncle, if thou goest" [Hamid Ali v. Imtiazan (1878)
2 All.71] or "I give up all relations and would have
no connection of any sort with you" [Wajid Ali v.
Jafar Husain (1932) 7 Luck, 430, 136 I.C. 209,
('32) A.O.34], the intention must be proved.
Pronouncement of the word talak in the
presence of the wife or when the knowledge of
such pronouncement comes to the knowledge of
the wife, results in the dissolution of the marriage.
The intention of the husband is inconsequential.
Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys.
L.J. 566.
If a man says to his wife that she has been
divorced yesterday or earlier, it leads to a divorce
between them, even if there be no proof of a
divorce on the previous day or earlier."
The respondent No.2 ought to have adduced
evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed.
A plea of previous divorce taken in the written statement
cannot at all be treated as pronouncement of talaq by the husband on
wife on the date of filing of the written statement in the Court
followed by delivery of a copy thereof to the wife. So also the
affidavit dated 31.8.1988, filed in some previous judicial proceedings
not inter parte, containing a self-serving statement of respondent no.2,
could not have been read in evidence as relevant and of any value.
For the foregoing reasons, the appeal is allowed. Neither the
marriage between the parties stands dissolved on 5.12.1990 nor does
the liability of the respondent No.2 to pay maintenance comes to an
end on that day.
The respondent No.2 shall continue to remain liable
for payment of maintenance until the obligation comes to an end in
accordance with law.
CASE NO.:
Appeal (crl.) 465 of 1996
PETITIONER:
Shamim Ara
RESPONDENT:
State of U.P. & Anr.
DATE OF JUDGMENT: 01/10/2002
BENCH:
R.C. LAHOTI & P.VENKATARAMA REDDI.
JUDGMENT:
J U D G M E N T
R.C. Lahoti, J.
Shamim Ara, the appellant and Abrar Ahmad, the respondent
no.2 were married some time in 1968 according to Muslim Shariyat
Law.
Four sons were born out of the wedlock. On 12.4.1979, the
appellant, on behalf of herself and for her two minor children, filed an
application under Section 125 Cr.P.C. complaining of desertion and
cruelty on the part of respondent no.2 with her. By order dated
3.4.1993 the learned Presiding Judge of the Family Court at Allahabad
refused to grant any maintenance to the appellant on the ground that
she was already divorced by the respondent and hence not entitled to
any maintenance.
However, maintenance at the rate of Rs.150/- per
month was allowed for one son of the appellant for the period during
which he remained a minor; the other one having become major
during the pendency of the proceedings.
The respondent no.2 in his reply (written statement) dated
5.12.1990, to the application under Section 125 Cr.P.C., denied all the
averments made in the application.
One of the pleas taken by way of
additional pleas is that he had divorced the appellant on 11.7.1987 and
since then the parties had ceased to be spouses. He also claimed
protection behind the Muslim Women (Protection of Rights on
Divorce) Act, 1986 and submitted that the respondent no.2 had
purchased a house and delivered the same to the appellant in lieu of
Mehar (Dower), and therefore, the appellant was not entitled to any
maintenance. No particulars of divorce were pleaded excepting
making a bald statement as already stated hereinabove.
The appellant emphatically denied having been divorced at any
time.
The respondent no.2, when he appeared in the witness-box,
stated having divorced the appellant on 11.7.1987 at 11 a.m. in the
presence of Mehboob and other 4-5 persons of the neighbourhood. He
further stated that since 1988 he had not paid anything either to the
appellant or to any of the four sons for their maintenance. The
divorce said to have been given by him to the appellant was a triple
talaq though such a fact was not stated in the written statement.
The Family Court in its order dated 3.4.1993 dealt with and
upheld a strange story of divorce totally beyond the case set up by the
respondent no.2. The learned Presiding Judge referred to some
affidavit dated 31.8.1988 said to have been filed by the respondent
No.2 in some civil suit details whereof are not available from the
record of the present case but certainly to which litigation the
appellant was not a party. In that affidavit it was stated by the
respondent no.2 that he had divorced the appellant 15 months before.
The learned Judge held that from such affidavit the plea of the
respondent no.2 found corroboration of his having divorced the
appellant. The learned Judge concluded that the appellant was not
entitled to any maintenance in view of her having been divorced.
The appellant preferred a revision before the High Court. The
High Court held that the divorce which is alleged to have been given
by the respondent no.2 to the appellant was not given in the presence
of the appellant and it is not the case of the respondent that the same
was communicated to her. But the communication would stand
completed on 5.12.1990 with the filing of the written statement by the
respondent no.2 in the present case. Therefore, the High Court
concluded that the appellant was entitled to claim maintenance from
1.1.1988 to 5.12.1990 (the later date being the one on which reply to
application under Section 125 Cr.P.C. was filed by the respondent
No.2 in the Court) whereafter her entitlement to have maintenance
from respondent no.2 shall cease. The figure of maintenance was
appointed by the High Court at Rs.200/-.
The appellant has filed this appeal by special leave. The
singular issue arising for decision is whether the appellant can be said
to have been divorced and the said divorce communicated to the
appellant so as to become effective from 5.12.1990, the date of filing
of the written statement by the respondent no.2 in these proceedings.
None of the ancient holy books or scriptures of muslims
mentions in its text such a form of divorce as has been accepted by the
High Court and the Family Court. No such text has been brought to
our notice which provides that a recital in any document, whether a
pleading or an affidavit, incorporating a statement by the husband that
he has already divorced his wife on an unspecified or specified date
even if not communicated to the wife would become an effective
divorce on the date on which the wife happens to learn of such
statement contained in the copy of the affidavit or pleading served on
her.
Mulla on Principles of Mahomedan Law (Nineteenth Edition,
1990) states vide para 310:-
"310. Talak may be oral or in writing.__
A talak may be effected
(1) orally (by spoken words) or
(2) by a written document called a talaknama (d).
(1) Oral Talak. __ No particular form of
words is prescribed for effecting a talak. If the
words are express (saheeh)or well understood as
implying divorce no proof of intention is required.
If the words are ambiguous (kinayat), the intention
must be proved (e).
It is not necessary that the
talak should be pronounced in the presence of the
wife or even addressed to her (f).
In a Calcutta
case the husband merely pronounced the word
"talak" before a family council and this was held
to be invalid as the wife was not named (g).
This
case was cited with approval by the Judicial
Committee in a case where the talak was valid
though pronounced in the wife's absence, as the
wife was named (h).
The Madras High Court has
also held that the words should refer to the wife (i).
The talak pronounced in the absence of the wife
takes effect though not communicated to her, but
for purposes of dower it is not necessary that it
should come to her knowledge (j); and
her alimony
may continue till she is informed of the divorce(k).
As the divorce becomes effective for purposes
of dower only when communicated to the wife,
limitation under Art. 104 for the wife's suit for
deferred dower ran from the time when the divorce
comes to her notice (l), under the Act of 1908. See
also the Limitation Act, 1963.
Words of divorce.__ The words of divorce
must indicate an intention to dissolve the marriage.
If they are express (saheeh), e.g., "Thou art
divorced," "I have divorced thee," or "I divorce
my wife for ever and render her haram from me"
[Rashid Ahmad v. Anisa Khatun (1932) 59 I.A.
21], they clearly indicate an intention to dissolve
the marriage and no proof of intention is
necessary. But if they are ambiguous (kinayat),
e.g., "Thou art my cousin, the daughter of my
uncle, if thou goest" [Hamid Ali v. Imtiazan (1878)
2 All.71] or "I give up all relations and would have
no connection of any sort with you" [Wajid Ali v.
Jafar Husain (1932) 7 Luck, 430, 136 I.C. 209,
('32) A.O.34], the intention must be proved.
Pronouncement of the word talak in the
presence of the wife or when the knowledge of
such pronouncement comes to the knowledge of
the wife, results in the dissolution of the marriage.
The intention of the husband is inconsequential.
Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys.
L.J. 566.
If a man says to his wife that she has been
divorced yesterday or earlier, it leads to a divorce
between them, even if there be no proof of a
divorce on the previous day or earlier."
[(f) Ma Mi v. Kallander Ammal, supra;
Ahmad Kasim v. Khatoon Bibi (1932) 59
Cal. 833, 141 I.C. 689, ('33) A.C. 27;
Fulchand v. Nazib Ali (1909) 36 Cal.
184, 1 I.C. 740; Sarabai v. Rabiabai
(1905) 30 Bom. 536 (obiter).
(g) Furzund Hussein v. Janu Bibee (1878) 4
Cal. 588.
(h) Rashid Ahmad v. Anisa Khatoon (1932)
59 I.A. 21, 54 All.46, 135 I.C. 762, ('32)
A.P.C. 25.
(i) Asha Bibi v. Kadir, supra.
(j) Fulchand v. Nazib Ali, supra.
(k) Ma Mi v. Kallandar Ammal, supra;
Abdul Khader v. Azeeza Bee (1944) 1
M.L.J. 17, 214 I.C. 38, ('44) A.M. 227.
(l) Kathiyumma v. Urathel Marakkar (1931)
133 I.C. 375, ('31) A.M. 647.]
The statement of law by Mulla as contained in para 310 and footnotes
thereunder is based on certain rulings of Privy Council and the High
Courts. The decision of A.P. High Court in (1975) 1 APLJ 20 has
also been cited by Mulla in support of the proposition that the
statement by husband in pleadings filed in answer to petition for
maintenance by wife that he had already divorced the petitioner (wife)
long ago operates as divorce.
We will offer our comments on this a little later. Immediately
we proceed to notice a few other authorities.
In Dr. Tahir Mahmood's 'The Muslim Law of India' (Second
Edition, at pp.113119), the basic rule stated is that a Muslim husband
under all schools of Muslim Law can divorce his wife by his unilateral
action and without the intervention of the Court. This power is known
as the power to pronounce a talaq. A few decided cases are noticed by
the learned author wherein it has been held that a statement made by
the husband during the course of any judicial proceedings such as in
wife's suit for maintenance or restitution of conjugal rights, or the
husband's plea of divorce raised in the pleadings did effect a talaq.
Such liberal view of talaq bringing to an end the marital
relationship between Muslim spouses and heavily loaded in favour of
Muslim husbands has met with criticism and strong disapproval at the
hands of eminent jurists.
V. Khalid, J., as His Lordship then was, observed in
Mohammed Haneefa Vs. Pathummal Beevi, 1972 K.L.T. 512 __ "I
feel it my duty to alert public opinion towards a painful aspect that
this case reveals. A Division Bench of this court, the highest court for
this State, has clearly indicated the extent of the unbridled power of a
muslim husband to divorce his wife. I am extracting below what
Their Lordships have said in Pathayi v. Moideen (1968 KLT 763).
"The only condition necessary for the valid
exercise of the right of divorce by a husband is that
he must be a major and of sound mind at that time.
He can effect divorce whenever he desires. Even
if he divorces his wife under compulsion, or in
jest, or in anger that is considered perfectly valid.
No special form is necessary for effecting divorce
under Hanafi law .. The husband can
effect if by conveying to the wife that he is
repudiating the alliance. It need not even be
addressed to her. It takes effect the moment it
comes to her knowledge."
Should muslim wives suffer this tyranny for all times? Should their
personal law remain so cruel towards these unfortunate wives? Can it
not be amended suitably to alleviate their sufferings? My judicial
conscience is disturbed at this monstrosity. The question is whether
the conscience of the leaders of public opinion of the community will
also be disturbed."(p.514)
In an illuminating judgment, virtually a research document, the
eminent judge and jurist V.R. Krishna Iyer, J., as His Lordship then
was, has made extensive observations. The judgment is reported as
A. Yousuf Rawther Vs. Sowramma, AIR 1971 Kerala 261. It would
suffice for our purpose to extract and reproduce a few out of the
several observations made by His Lordship:-
"The interpretation of a legislation,
obviously intended to protect a weaker section of
the community, like women, must be informed by
the social perspective and purpose and, within its
grammatical flexibility, must further the beneficent
object. And so we must appreciate the Islamic
ethos and the general sociological background
which inspired the enactment of the law before
locating the precise connotation of the words used
in the statute. (para 6)
"Since infallibility is not an attribute of the
judiciary, the view has been ventured by Muslim
jurists that the Indo-Anglian judicial exposition of
the Islamic law of divorce has not exactly been just
to the Holy Prophet or the Holy Book. Marginal
distortions are inevitable when the Judicial
Committee in Downing Street has to interpret
Manu and Muhammad of India and Arabia. The
soul of a culture __ law is largely the formalized
and enforceable expression of a community's
cultural norms __ cannot be fully understood by
alien minds. The view that the Muslim husband
enjoys an arbitrary, unilateral power to inflict
instant divorce does not accord with Islamic
injunctions." (para 7)
"It is a popular fallacy that a Muslim male
enjoys, under the Quaranic Law, unbridled
authority to liquidate the marriage. "The whole
Quoran expressly forbids a man to seek pretexts
for divorcing his wife, so long as she remains
faithful and obedient to him, 'if they (namely,
women) obey you, then do not seek a way against
them'." (Quaran IV:34). The Islamic "law gives to
the man primarily the faculty of dissolving the
marriage, if the wife, by her indocility or her bad
character, renders the married life unhappy; but in
the absence of serious reasons, no man can justify
a divorce, either in the eye of religion or the law.
If he abandons his wife or puts her away in simple
caprice, he draws upon himself the divine anger,
for the curse of God, said the Prophet, rests on him
who repudiates his wife capriciously." (para 7)
"Commentators on the Quoran have rightly
observed __ and this tallies with the law now
administered in some Muslim countries like Iraq __
that the husband must satisfy the court about the
reasons for divorce. However, Muslim law, as
applied in India, has taken a course contrary to the
spirit of what the Prophet or the Holy Quoran laid
down and the same misconception vitiates the law
dealing with the wife's right to divorce." (para 7)
"After quoting from the Quoran and the
Prophet, Dr. Galwash concludes that "divorce is
permissible in Islam only in cases of extreme
emergency. When all efforts for effecting a
reconciliation have failed, the parties may proceed
to a dissolution of the marriage by 'Talaq' or by
'Khola'. . . . . . . . . . . . . . Consistently with the
secular concept of marriage and divorce, the law
insists that at the time of Talaq the husband must
pay off the settlement debt to the wife and at the
time of Kholaa she has to surrender to the husband
her dower or abandon some of her rights, as
compensation." (para 7)
There is yet another illuminating and weighty judicial opinion
available in two decisions of Gauhati High Court recorded by Baharul
Islam, J. (later a Judge of the Supreme Court of India) sitting singly in
Sri Jiauddin Ahmed Vs. Mrs. Anwara Begum, (1981) 1 GLR 358
and later speaking for the Division Bench in Must. Rukia Khatun Vs.
Abdul Khalique Laskar, (1981) 1 GLR 375. In Jiauddin Ahmed's
case a plea of previous divorce, i.e. the husband having divorced the
wife on some day much previous to the date of filing of the written
statement in the Court was taken and upheld. The question posed
before the High Court was whether there has been valid talaq of the
wife by the husband under the Muslim law? The learned Judge
observed that though marriage under the Muslim law is only a civil
contract yet the rights and responsibilities consequent upon it are of
such importance to the welfare of humanity, that a high degree of
sanctity is attached to it. But inspite of the sacredness of the character
of the marriage-tie, Islam recognizes the necessity, in exceptional
circumstances, of keeping the way open for its dissolution. (Para 6).
Quoting in the judgment several Holy Quranic verses and from
commentaries thereon by well-recognized scholars of great eminence,
the learned Judge expressed disapproval of the statement that "the
whimsical and capricious divorce by the husband is good in law,
though bad in theology" and observed that such a statement is based
on the concept that women were chattel belonging to men, which the
Holy Quran does not brook. The correct law of talaq as ordained by
the Holy Quran is that talaq must be for a reasonable cause and be
preceded by attempts at reconciliation between the husband and the
wife by two arbiters __ one from the wife's family and the other from
the husband's; if the attempts fail, talaq may be effected. (Para 13). In
Rukia Khatun's case, the Division Bench stated that the correct law
of talaq, as ordained by Holy Quran, is: (i) that 'talaq' must be for a
reasonable cause; and (ii) that it must be preceded by an attempt of
reconciliation between the husband and the wife by two arbiters, one
chosen by the wife from her family and the other by the husband from
his. If their attempts fail, 'talaq' may be effected. The Division Bench
expressly recorded its dissent from the Calcutta and Bombay view
which, in their opinion, did not lay down the correct law.
We are in respectful agreement with the abovesaid observations
made by the learned Judges of High Courts. We must note that the
observations were made 20-30 years before and our country has in
recent times marched steps ahead in all walks of life including
progressive interpretation of laws which cannot be lost sight of except
by compromising with regressive trends. What this Court observed in
Bai Tahira Vs. Ali Hussain AIR 1979 SC 362 dealing with right to
maintenance of a muslim divorcee is noteworthy. To quote :
"The meaning of meanings is derived from
values in a given society and its legal
system. Article 15(3) has compelling,
compassionate relevance in the context of
S.125 and the benefit of doubt, if any, in
statutory interpretation belongs to the ill-
used wife and the derelict divorcee. This
social perspective granted, the resolution of
all the disputes projected is easy. Surely,
Parliament, in keeping with Art. 15(3) and
deliberate by design, made a special
provision to help women in distress cast
away by divorce. Protection against moral
and material abandonment manifest in
Art.39 is part of social and economic justice,
specificated in Art.38, fulfillment of which
is fundamental to the governance of the
country (Art.37). From this coign of
vantage we must view the printed text of the
particular Code." (para 7)
"Law is dynamic and its meaning cannot be
pedantic but purposeful." (para 12)
The plea taken by the husband-respondent no.2 in his written
statement may be re-noticed. The respondent No.2 vaguely makes
certain generalized accusations against the wife-appellant and states
that ever since the marriage he found his wife to be sharp, shrewd and
mischievous. Accusing the wife of having brought disgrace to the
family, the respondent No.2 proceeds to state, vide para 12 (translated
into English) __ "The answering respondent, feeling fade up with all
such activities unbecoming of the wife-petitioner, has divorced her on
11.7.87." The particulars of the alleged talaq are not pleaded nor the
circumstances under which and the persons, if any, in whose presence
talaq was pronounced have been stated. Such deficiency continued to
prevail even during the trial and the respondent No.2, except
examining himself, adduced no evidence in proof of talaq said to have
been given by him on 11.7.1987. There are no reasons substantiated
in justification of talaq and no plea or proof that any effort at
reconciliation preceded the talaq.
We are also of the opinion that the talaq to be effective has to
be pronounced. The term 'pronounce' means to proclaim, to utter
formally, to utter rhetorically, to declare to, utter, to articulate (See
Chambers 20th Century Dictionary, New Edition, p.1030). There is no
proof of talaq having taken place on 11.7.1987. What the High Court
has upheld as talaq is the plea taken in the written statement and its
communication to the wife by delivering a copy of the written
statement on 5.12.1990. We are very clear in our mind that a mere
plea taken in the written statement of a divorce having been
pronounced sometime in the past cannot by itself be treated as
effectuating talaq on the date of delivery of the copy of the written
statement to the wife.
The respondent No.2 ought to have adduced
evidence and proved the pronouncement of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed.
We do not agree with the view
propounded in the decided cases referred to by Mulla and Dr. Tahir
Mahmood in their respective commentaries, wherein a mere plea of
previous talaq taken in the written statement, though unsubstantiated,
has been accepted as proof of talaq bringing to an end the marital
relationship with effect from the date of filing of the written
statement. A plea of previous divorce taken in the written statement
cannot at all be treated as pronouncement of talaq by the husband on
wife on the date of filing of the written statement in the Court
followed by delivery of a copy thereof to the wife. So also the
affidavit dated 31.8.1988, filed in some previous judicial proceedings
not inter parte, containing a self-serving statement of respondent no.2,
could not have been read in evidence as relevant and of any value.
For the foregoing reasons, the appeal is allowed. Neither the
marriage between the parties stands dissolved on 5.12.1990 nor does
the liability of the respondent No.2 to pay maintenance comes to an
end on that day.
The respondent No.2 shall continue to remain liable
for payment of maintenance until the obligation comes to an end in
accordance with law.
The costs in this appeal shall be borne by the
respondent No.2.
