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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

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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.

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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

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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

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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

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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

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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.