Shamim Ara vs State of U.P. and Another

R.C. Lahoti, J.—Shamim Ara, the appellant and Abrar Ahmed, the respondentNo. 2 were married some time in 1968 according to Muslim ShariyatLaw. Four sons were born out of the wedlock. On 12.4.1979, theappellant, on behalf of herself and for her two minor children, filed anapplication u/s 125 Cr.P.C. complaining of desertion andcruelty on the part of respondent No. 2 with her. By order dated3.4.1993 the learned Presiding Judge of the Family Court at Allahabadrefused to grant any maintenance to the appellant on the ground thatshe was already divorced by the respondent and hence not entitled toany maintenance. However, maintenance at the rate of Rs. 150/- permonth was allowed for one son of the appellant for the period duringwhich he remained a minor; the other one having become majorduring the pendency of the proceedings.

The respondent No. 2 in his reply (written statement) dated5.12.1990 to the application u/s 125 Cr.P.C., denied all theaverments made in the application. One of the pleas taken by wayof additional pleas is that he had divorced the appellant on 11.7.1987and since then the parties had ceased to be spouses. He also claimedprotection behind the Muslim Women (Protection of Rights onDivorce) Act, 1986 and submitted that the respondent No. 2 hadpurchased a house and delivered the same to the appellant in lieu ofMehar (Dower), and therefore, the appellant was not entitled to anymaintenance. No particulars of divorce were pleaded exceptingmaking a bald statement as already stated hereinabove.

The appellant emphatically denied having been divorced at anytime. 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 thepresence of Mehboob and other 4-5 persons of the neighbourhood. Hefurther stated that since 1988 he had not paid anything either to theappellant or to any of the four sons for their maintenance. Thedivorce said to have been given by him to the appellant was a tripletalaq though such a fact was not stated in the written statement.

The Family Court in its order dated 3.4.1993 dealt with andupheld a strange story of divorce totally beyond the case set up by therespondent No. 2. The learned Presiding Judge referred to someaffidavit dated 31.8.1988 said to have been filed by the respondentNo. 2 in some civil suit details whereof are not available from therecord of the present case but certainly to which litigation theappellant was not a party. In that affidavit it was stated by therespondent No. 2 that he had divorced the appellant 15 months before.The learned Judge held that from such affidavit the plea of therespondent No. 2 found corroboration of his having divorced theappellant. The learned Judge concluded that the appellant was notentitled to any maintenance in view of her having been divorced.

The appellant preferred a revision before the High Court. TheHigh Court held that the divorce which is alleged to have been givenby the respondent No. 2 to the appellant was not given in the presenceof the appellant and it is not the case of the respondent that the samewas communicated to her. But the communication would standcompleted on 5.12.1990 with the filing of the written statement by therespondent No. 2 in the present case. therefore, the High Courtconcluded that the appellant was entitled to claim maintenance from1.1.1988 to 5.12.1990 (the later date being the one on which reply toapplication u/s 125 Cr.P.C. was filed by the respondentNo. 2 in the Court) whereafter her entitlement to have maintenancefrom respondent No. 2 shall cease. The figure of maintenance wasappointed by the High Court at Rs. 200/-.

The appellant has filed this appeal by special leave. Thesignature issue arising for decision is whether the appellant can be saidto have been divorced and the said divorce communicated to theappellant so as to become effective from 5.12.1990, the date of filingof the written statement by the respondent No. 2 in these proceedings.

None of the ancient holy books or scriptures of muslimsmentions in its text such a form of divorce as has been accepted by theHigh Court and the Family Court. No such text has been brought toour notice which provides that a recital in any document, whether apleading or an affidavit, incorporating a statement by the husband thathe has already divorced his wife on an unspecified or specified dateeven if not communicated to the wife would become an effectivedivorce on the date on which the wife happens to learn of suchstatement contained in the copy of the affidavit or pleading served onher. Mulla on principles of Mahomedan Law (Nineteenth (SIC)1990) states vide para 310:-

"310. Talak may be oral or in writing.--A talak may be effected (1) orally (by spokenwords) or (2) by a written document called atalak nama (d).

(1) Oral Talak. -- No particular form ofwords is prescribed for effecting a talak. If thewords are express (saheeh) or well understood asimplying divorce no proof of intention is required.If the words are ambiguous (kinayat), the intentionmust be proved (e). It is not necessary that thetalak should be pronounced in the presence of thewife or even addressed to her (f). In a Calcuttacase the husband merely pronounced the word"talak" before a family council and this was heldto be invalid as the wife was not named (g). Thiscase was cited with approval by the JudicialCommittee in a case where the talak was validthough pronounced in the wife's absence, as thewife was named (h). The Madras High Court hasalso held that the words should refer to the wife (i).The talak pronounced in the absence of the wifetakes effect though not communicated to her, butfor purposes of dower it is not necessary that itshould come to her knowledge (j); and her alimonymay continue till she is informed of the divorce(k). As the divorce becomes effective for purposesof dower only when communicated to the wife,limitation under Article 104 of the wife's suit fordeferred dower ran from the time when the divorcecomes to her notice (l), under the Act of 1908. Seealso the Limitation Act, 1963.

Words of divorce.--The words of divorcemust indicate an intention to dissolve the marriage.If they are express (saheeh), e.g., "Thou artdivorced." "I have divorced thee," or "I divorcemy 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 dissolvethe marriage and no proof of intention isnecessary. But if they are ambiguous (kinavat),e.g., "Thou art my cousin, the daughter of myuncle, if thou guest" [Hamid Ali v. Imtiazan (1878) 2 All. 71 or "I give up all relations and would haveno connection of any sort with you" [Wajid Ali v.Jafar Husain (1932) 7 Luck. 430, 163 L.I.C. 209,(32) A.O. 34 the intention must be proved.

Pronouncement of the word talak in thepresence of the wife or when the knowledge ofsuch pronouncement comes to the knowledge ofthe wife, results in the dissolution of the marriage.The intention of the husband is inconsequential,Ghansi Bibi v. Ghulam Dastagir (1968) 1 M.L.J. 566.

If a man says to his wife that she has beendivorced yesterday or earlier, it leads to a divorcebetween them, even if there be no proof of adivorce on the previous day or earlier."

[(f) Ma Mt v. Kallander Ammal, supra;Ahmad Kasim v. Khatoon Bibi (1932) 59Cal. 833, 141 L.I.C. 689, ( 33) A.C. 27;Fulchand v. Nazib Ali (1909) 36 Cal.184, 1 L.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 L.I.C. 762 ( 32) A.P.C. 25

(i) Asha Bibi v. Kadir, supra.

(j) Fulchand v. Nazib Ali, supra.

(k) Ma Mt v. Kallandar Ammal, supra;Abdul Khader v. Azeera Bee (1944) 1M.L.J. 17, 214 I.C. 38, (44) A.M. 227.

(l) Kathiyumma v. Urathel Marakkar(1931) 133 L.I.C. 375, (31) A.M. 647.

The statement of law by Mulla as contained in para 310 and footnotesthereunder is based on certain rulings of Privy Council and the HighCourts. The decisions of A.P. High Court in (1975) 1 APLJ 20 hasalso been cited by Mulla in support of the proposition that thestatement by husband in pleadings filed in answer to petition formaintenance 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. Immediatelywe proceed to notice a few other authorities.

In Dr. Tahir Mahmood's 'The Muslim Law of India' (SecondEdition, at pp. 113-119), the basic rule stated is that a Muslim husbandunder all schools of Muslim Law can divorce his wife by his unilateralaction and without the intervention of the Court. This power is knownas the power to pronounce a talaq. A few decided cases are noticed bythe learned author wherein it has been held that a statement made bythe husband during the course of any judicial proceedings such as inwife's suit for maintenance or restitution of conjugal rights, or thehusband's plea of divorce raised in the pleadings did effect a talaq.

Such liberal view of talaq bringing to an end the maritalrelationship between Muslim spouses and heavily loaded in favour ofMuslim husbands has met with criticism and strong disapproval at thehands of eminent jurists.

V. Khalid, J., as His Lordship then was, observed inMohammed Haneefa v. Pathummal Beevi 1972 K.L.T. 512 -- "Ifeel it my duty to alert public opinion towards a painful aspect thatthis case reveals. A Division Bench of this court, the highest court forthis State, has clearly indicated the extent of the unbridled power of amuslim husband to divorce his wife. I am extracting below whatTheir Lordships have said in Pathayi v. Moideen 1968 KLT 763 .

"The only condition necessary for the validexercise of the right of divorce by a husband is thathe must be a major and of sound mind at that time.He can effect divorce whenever he desires. Evenif he divorces his wife under compulsion, or injest,or in anger that is considered perfectly valid.No special form is necessary for effecting divorceunder Hanafi law ..... The husband caneffect if by conveying to the wife that he isrepudiating the alliance. It need not even beaddressed to her. It takes effect the moment itcomes to her knowledge."

Should muslim wives suffer this tyranny for all times? Should theirpersonal law remain so cruel towards these unfortunate wives? Can itnot be amended suitably to alleviate their sufferings? My judicialconscience is disturbed at this monstrosity. The question is whetherthe conscience of the leaders of public opinion of the community willalso be disturbed." (p.514)

In an illuminating judgment, virtually a research document, theeminent judge and jurist V.R. Krishna Iyer, J., as His Lordship thenwas, has made extensive observations. The judgment is reported as A. Yousuf Rawther Vs. Sowramma, . It wouldsuffice for our purpose to extract and reproduce a few out of theseveral observations made by His Lordship:-

"The interpretation of a legislation,Obviously intended to protect a weaker section ofthe community, like women, must be informed bythe social perspective and purpose and, within itsgrammatical flexibility, must further the beneficentobject. And so we must appreciate the Islamicethos and the general sociological backgroundwhich inspired the enactment of the law beforelocating the precise connotation of the words usedin the statute. (para 6)

"Since infallibility is not an attribute of thejudiciary, the view has been ventured by Muslimjurists that the Indo-Anglian judicial exposition ofthe Islamic law of divorce has not exactly been justto the Holy Prophet or the Holy Book. Marginaldistortions are inevitable when the JudicialCommittee in Downing Street has to interpretManu and Muhammad of India and Arabia. Thesoul of a culture -- law is largely the formalizedand enforceable expression of a community'scultural norms -- cannot be fully understood byalien minds. The view that the Muslim husbandenjoys an arbitrary, unilateral power to inflictinstant divorce does not accord with Islamicinjunctions." (para 7)

"It is a popular fallacy that a Muslim maleenjoys, under the Quaranic Law, unbridledauthority to liquidate the marriage. "The wholeQuoran expressly forbids a man to seek pretextsfor divorcing his wife, so long as she remainsfaithful and obedient to him, "if they (namely,women) obey you, then do not seek a way againstthem'." (Quaran IV:34). The Islamic "law gives tothe man primarily the faculty of dissolving themarriage, if the wife, by her indocility or her badcharacter, renders the married life unhappy; but inthe absence of serious reasons, no man can justifya divorce, either in the eye of religion or the law.If he abandons his wife or puts her away in simplecaprice, he draws upon himself the divine anger,for the curse of God, said the Prophet, rests on himwho repudiates his wife capriciously." (para 7)

"Commentators on the Quoran have rightlyobserved -- and this tallies with the law nowadministered in some Muslim countries like Iraq --that the husband must satisfy the court about thereasons for divorce. However, Muslim law, asapplied in India, has taken a course contrary to thespirit of what the Prophet or the Holy Quoran laiddown and the same misconception vitiates the lawdealing with the wife's right to divorce." (para 7)

"After quoting from the Quoran and theProphet, Dr. Galwash concludes that "divorce ispermissible in Islam only in cases of extremeemergency. When all efforts for effecting areconciliation have failed, the parties may proceedto a dissolution of the marriage by 'Talaq' or by'Khola' ..... Consistently with thesecular concept of marriage and divorce, the lawinsists that at the time of Talaq the husband mustpay off the settlement debt to the wife and at thetime of Koala she has to surrender to the husbandher dower or abandon some of her rights, ascompensation." (para 7)

There is yet another illuminating and weighty judicial opinionavailable in two decisions of Gauhati High Court recorded by BaharulIslam, J. (later a Judge of the Supreme Court of India) sitting singly inSri Jiauddin Ahmed v. Mrs. Anwara Begum (1981) 1 GLR 358and later speaking for the Division Bench in Must. Rukia Khatun v.Abdul Khalique Laskar (1981) 1 GLR 375. In Jiauddin Ahmed'scase a plea of previous divorce, i.e. the husband having divorced thewife on some day much previous to the date of filing of the writtenstatement in the Court was taken and upheld. The question posedbefore the High Court was whether there has been valid talaq of thewife by the husband under the Muslim law? The learned Judgeobserved that though marriage under the Muslim law is only a civilcontract yet the rights and responsibilities consequent upon it are ofsuch importance to the welfare of humanity, that a high degree ofsanctity is attached to it. But inspite of the sacredness of the characterof the marriage-tie, Islam recognize the necessity, in exceptionalcircumstances, of keeping the way open for its dissolution. (Para 6).Quoting in the judgment several Holy Quranic verses and fromcommentaries thereon by well-recognized scholars of great eminence,the learned Judge expressed disapproval of the statement that "thewhimsical and capricious divorce by the husband is good in law,though bad in theology" and observed that such a statement is basedon the concept that women were chattel belonging to men, which theHoly Quran does not brook. The correct of talaq as ordained bythe Holy Quran is that talaq must be for a reasonable cause and bepreceded by attempts at reconciliation between the husband and thewife by two arbiters -- one from the wife's family and the other fromthe husband's; if the attempts fail, talaq may be effected. (Para 13). InRukia Khatun's case, the Division Bench stated that the correct lawof talaq as ordained by Holy Quran, is: (i) that 'talaq' must be for areasonable cause; and (ii) that it must be preceded by an attempt ofreconciliation between the husband and the wife by two arbiters, onechosen by the wife from her family and the other by the husband fromhis. If their attempts fail, 'talaq' may be effected. The Division Benchexpressly recorded its dissent from the Calcutta and Bombay viewwhich, in their opinion, did not lay down the correct law.

We are in respectful agreement with the abovesaid observationsmade by the learned Judges of High Courts. We must note that theobservations were made 20-30 years before and our country has inrecent times marched steps ahead in all walks of life includingprogressive interpretation of laws which cannot be lost sight of exceptby compromising with regressive trends. What this Court observed in Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, , dealing with right tomaintenance of a muslim divorce is noteworthy. To quote:

"The meaning of meanings is derived fromvalues in a given society and its legalsystem. Article 15(3) has compelling,compassionate relevance in the context ofSection 125 and the benefit of doubt, if any, instatutory interpretation belongs to the ill-usedwife and the derelict divorce. Thissocial perspective granted, the resolution ofall the disputes projected is easy. Surely,Parliament, in keeping with Article 15(3) anddeliberate by design, made a specialprovision to help women in distress castaway by divorce. Protection against moraland material abandonment manifest inArticle 39 is part of social and economic justice,specified in Article 38, fulfillment of whichis fundamental to the governance of thecountry (Article 37). From this coign ofvantage we must view the printed text of theparticular Code." (para 7)

"Law is dynamic and its meaning cannot be pandemic but purposeful" (para 12)

The plea taken by the husband-respondent No. 2 in his writtenstatement may be re-noticed. The respondent No. 2 vaguely makescertain generalized accusations against the wife-appellant and statesthat ever since the marriage he found his wife to be sharp, shrewd andmischievous. Accusing he wife of having brought disgrace to thefamily, the respondent No. 2 proceeds to state, vide para 12 (translatedinto English) -- "The answering respondent, feeling fade up with allsuch activities unbecoming of the wife-petitioner, has divorced her on11.7.87." The particulars of the alleged talaq are not pleaded nor thecircumstances under which and the persons, if any, in whose presencetalaq was pronounced have been stated. Such deficiency continued toprevail even during the trial and the respondent No. 2, exceptexamining himself, adduced no evidence in proof of talaq said to havebeen given by him on 11.7.1987. There are no reasons substantiatedin justification of talaq and no plea or proof that any effort atreconciliation preceded the talaq.

We are also of the opinion that the talaq to be effective has tobe pronounced. The term 'pronounce' means to proclaim, to utterformally, to utter rhetorically, to declare to, utter, to articulate (SeeChambers 20th Century Dictionary, New Edition, p.1030). There is noproof of talaq having taken place on 11.7.1987. What the High Courthas upheld as talaq is the plea taken in the written statement and itscommunication to the wife by delivering a copy of the writtenstatement on 5.12.1990. We are very clear in our mind that a mereplea taken in the written statement of a divorce having beenpronounced sometime in the past cannot by itself be treated aseffectuating talaq on the date of delivery of the copy of the writtenstatement to the wife. The respondent No. 2 ought to have adducedevidence and proved the pronounced of talaq on 11.7.1987 and ifhe failed in proving the plea raised in the written statement, the pleaought to have been treated as failed. We do not agree with the viewpropounded in the decided cases referred to by Mulla and Dr. TahirMahmood in their respective commentaries, wherein a mere plea ofprevious talaq taken in the written statement, though unsubstantiated,has been accepted as proof of talaq bringing to an end the maritalrelationship with effect from the date of filing of the writtenstatement. A plea of previous divorce taken in the written statementcannot at all be treated as pronouncement of talaq by the husband onwife on the date of filing of the written statement in the Courtfollowed by delivery of a copy thereof to the wife. So also theaffidavit dated 31.8.1988, filed in some previous judicial proceedingsnot 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 themarriage between the parties stands dissolved on 5.12.1990 nor doesthe liability of the respondent No. 2 to pay maintenance comes to anend on that day. The respondent No. 2 shall continue to remain liablefor payment of maintenance until the obligation comes to an end inaccordance with law. The costs in this appeal shall be borne by therespondent No. 2.