CASE BRIEF
Case Type: Criminal Appeal
Case No: 465/1996
Appellants: Shamim Ara
Respondents: State of U.P. & Anr
Decided On: 01-10-2002
Statues Referred: Code of Civil Procedure.
Case Referred:
- Sri Jiauddin Ahmed Vs. Mrs. Anwara Begum
- Yousuf Rawther Vs. Sowramma,
- Bai Tahira Vs. Ali Hussain
Bench: R.C. Lahoti & P.Venkatarama Reddi. JJ
Facts:
The appellant Shamim Ara was married to Abrar Ahmad since 1968 in accordance with Muslim Shariyat Law. The appellant and her two minor children filed a suit U/S 125 CrPC complaining of desertion and cruelty on the part of her husband.
The learned Presiding Judge of the Family Court at Allahabad declined to declare any maintenance to the appellant on the ground that she was already divorced by the Husband. However maintenance for one of the son was allowed @ ₹ 150/- p.m., until the period he remains minor.
Abrar Ahmed via written agreement expounded that he had divorced his wife on 11-07-1987 and therefrom the parties ceased to be spouses. A house was conveyed in the name of the appellant by the husband in lieu if Mehar, which negatives the appellant’s title to maintenance.
The appellant denied being divorced at any point of time. But the husband contented that the divorce took place on 11-07-1987 at 11.00 am in the presence of four witness, the divorce was a triple talaq, but the same wasn’t mentioned in the written statement of the husband.
The appellant applied for a revision at the High Court. And the Court held that the divorce was never communicated to the wife until 05-12-1990, when the written statement was filed. Hence the appellant was entitled to maintenance from 1.1.1988 to 5.12.1990, the amount of maintenance was allowed @ ₹ 200/-.
Dissatisfied with the Judgement the appellant filed appeal by special leave to the Supreme Court.
Issue:
Whether the appellant can be said to be divorced?
Obiter dicta:
“How can the personal law remain so cruel towards unfortunate women in Muslims who sufferer so much due to humongous power of the husband to divorce their wife without prior discussion or intimation. My judicial conscience is disturbed at this monstrosity.”
But infallibility cannot be accorded to judiciary and the Indo-Anglian judicial exposition of Islamic Law has been just unjustly and without mind. Hence the view that the Muslim Husband enjoys an arbitrary, unilateral power to announce instant divorce simply is not in terms with Islamic injunctions.
Ratio Decedendi:
Talaq may be oral or in writing, while for oral Talaq no particular form of words is required or prescribed. The words need to be express to give effect to oral Talaq. The Talaq should be announced in the presence of the wife or be addressed to her. As held by the Judicial Committee a Talaq announced even in the absence of wife but by specifically addressing her name, then it shall be regarded as a valid divorce under Muslim Law.
Muslim Husband under all schools of Muslim Law is eligible to divorce his wife by a unilateral action and that does not require the intervention of the Court. It is called as the power to pronounce a talaq. But such liberal view of talaq has been subject to severe criticism and is outright inclined towards husband.
The Quaranic Law does place a Muslim male at an unbridled authority to liquidate the marriage. The Muslim Law expressly restricts a man to liquidate marriage as long as the women obey him. If wife by her indocility renders the marriage as unhappy and difficult to maintain, only then can the law of divorce comes into scene.
Although marriage in Muslim are a contract yet a high degree of importance is attached to the marriage due to welfare of humanity. But when all the efforts of reconciliation fails then away is open for dissolution.
The contention by the husband that the wife was shrewd sharp and mischievous and that it brought disgrace to the family was rejected by the Court. Also the circumstances under which the divorce was announced and person present there, such particular went missing from the statement given by the husband. Neither any proof of reconciliation could be proved.
There was no proof that the talaq was pronounced on 11-07-1987. A mere plea taken in a written statement which was pronounced sometime in past cannot be treated as a valid talaq. And such plea must by such reason be failed.
Judgment:
The Apex Court’s bench comprising of R.C. Lahoti & P.Venkatarama Reddi. JJ held the following:
“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.”
The appeal was therefore allowed. The marriage was held not dissolved on 05-12-1990. Neither the liability of the husband came to an end. Such liability shall continue until the obligation comes to an end in accordance with the law.
The cost was allowed and was ordered to be borne by the husband.
Conclusion:
Marriage is a means to keep parties in a relation with each other where there is equal division of all the chores of life. It is not the marriage that fails, it is the people that fail. Upon such consideration allowing men to divorce her wife by simply pronouncing a talaq without prior intimation or efforts of reconciliation is like queering the pitch.
There should be a way out in an unpleasant, unhappy married life but with the due process of law. Any unilateral action by the parties to the marriage especially the male, makes the women life monstrously murky. However the Court of law are like guardian angel always on standby to safeguard the interest of the distressed women.