Manoli Pathayi vs Karakunnumal Moideen

Narayana Pillai, J.—In a proceeding by a Hanafi Muslim wife against her husband when he files a written statement contending that he had divorced her on a previous day and that contention is found against does not the marriage between them become dissolved at least on the day when the written statement is filed ? Our answer to it is in the affirmative and that for what is set out below. Under Muhammadan law for a variety of reasons there are differences in the position of husband and wife as regards their rights when they are in the married state and in respect of divorce. 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 presence of the wife is not necessary at the time of the dissolution of the marriage. Witnesses are necessary for effecting a marriage, but not for dissolving it. Talaq is dissolution of marriage effected by the husband by repudiation. It is a release from the of Sessions Court, Kozhikode and M. C. No. 21/67 of Dt. Magistrate''s Court, Kozhikode marriage tie. The husband can effect it 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. These principles are well-established.

Section 147 in Tyabji''s Muhammadan Law says that a single revocable talaq is effected if the expression is such as to imply that a talaq has already been effected. Illustration 10 to that Section reads as follows:

(10) He says to his wife, ''Thou art repudiated yesterday.'' She is divorced immediately if she was his wife ''yesterday'', - but not otherwise."

In the 2nd edition of Hamilton''s translation of Hedaya it is stated as follows at page 79:

If a man say to his wife, ''you are under divorce yesterday'', and it should so be that he was married as this day, divorce does not take place at all, because he has here referred divorce to a period in which he was not competent to pronounce it, and therefore his divorce is nugatory, the same as if he were to say, ''you are under divorce before my existence.''-But, in the present case, if he had married her before the time of which he speaks, divorce takes place at the time of his speaking; because, if a man signify a divorce in the preterite form, it is an indication in the present, and hence the divorce takes place accordingly, this expression being an indication of what is now, and not a relation of what is past as it does not appear that he pronounced any divorce yesterday, so as that he should now give intelligence thereof.

In the 3rd Edition of Macnaghten''s Moohummudan Law, at page 296 under Case No. XLM the following question has been put and the answer given:

Q. A person on the 20th of Suffer in the year 1232, Hijree (corresponding with the 7th Pous of 1224, B.S.) declared that he had repudiated his wife by three divorces, agreeably to the rules of the Moohummudan Law, from the year 1178 or upwards of forty-six years back. In this case, from what date should the divorce be held to take effect?

R. Under the above circumstances, if the wife deny the fact of her having been divorced by the husband, the divorce according to Law, should be held to take effect from the date on which it was declared; as is laid down in the Shurhi Viqaya, - ''If a person say to his wife, whom he married previously to the day to which he referred the divorce ''you are divorced yesterday'', and she deny it, the divorce takes effect only from the moment of its being declared.

Following mainly the above question and answer from Macnaghten''s Moohummudan Law it was held by the Bombay High Court in Chandbi Ex Vs. Bandesha, and the Allahabad High Court in Asmat Ullah v Mt. Khatun-Unrtisa 1939 All. 592 that in an action by a Muslim wife against her husband when he filed a written statement that he had already divorced her some time back even if the fact of such divorce was not proved it operated as a declaration of divorce from the date of the filing of the written statement. The same view was taken by the Hyderabad High Court in Wahab Ali v Qamro Bi A. I. R. 1951 Hyd 117 and again by the Allahabad High Court in Abdul Shakoor v Smt. Kulsum Bibi 1962 (1) Crl. L. J. 247. These decisions were followed in Aiyussu v Ahammad5 by Govinda Menon, J. and in Aboobaker v Kadeesa by Anna Chandy, J.

This matter has now come up before us because our learned brother Mr. Justice Raghavan, doubted the correctness of the decisions of this Court in Aiyussu v Ahammad 1964 K. L. T. 472 and Abboobaker v Kadeesa 1966 K. L. T. 857 and therefore, posted the case before a Division Bench. At first blush it may appear that when the fact of previous divorce mentioned in a written statement is found to be false or not proved it would be against all rules to construe that at least from the date of the written statement divorce should be deemed to hare been effected. But under Mohammadan Law husband is in a favored position and the authorities are to the effect that if he states that he had on a previous occasion divorced his wife, that statement amounts to a declaration of divorce atleast on the day the statement is made and whatever be the reason behind it the same has to be given effect to as it forms part of that law.

In the instant case when on 18-2-1967 the wife filed a petition u/s 488 Criminal Procedure Code in the court of the District Magistrate, Calicut for maintenance for herself and her child the husband on 27-3-1967 filed a counter stating that he had already divorced her on 18-8-1966. The learned District Magistrate found that statement to be not true. Consequently, he ordered maintenance being granted to her at the rate of Rs. 20/- and to the child at the fate of Rs.10/- per mensem. In revision from that order, the learned Additional Sessions Judge, Calicut, following the decision in Aiyussu v Ahammad(1964 K. L. T. 472) and Aboobaker v Kadeesa(1966 K. L. T. 857.) found that the husband should be deemed to have divorced her on 27-3-1967. Consequently, he was of opinion that she should be awarded maintenance at the rate fixed by the learned District Magistrate only for the period from 18-2-1967 to 27-3-1967 and for three months and ten days from 27-3-1967, that being the period of Iddat and he made a reference to this court u/s 438 of Criminal Procedure Code

Advocate Sri M.M. Abdul Khader appeared in this case as amicus curiae and placed before us all the relevant authorities. We record our appreciation of the able assistance received from him. The findings entered and the opinion expressed by the learned Additional Sessions Judge are correct. We find that the husband in the present case divorced his wife on 27-3-1967 and that she is entitled to maintenance only for the period from 18-2-1967 to 27-3-1967 and for three months and ten days from 27-3-1967 at the rate of Rs. 20/- per mensem. To that extent alone the order of the learned District Magistrate is modified. In all other respects it shall stand confirmed. The reference is decided accordingly.