IMPORTANT POINT
Talak may be oral or in writing. But it must be for a reasonable cause and 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 husband from his. If their attempts fail, talaq may be effected by pronouncement.

Headnote:Criminal Procedure Code, 1973-Section 125-Maintenance by Muslim wife from her husband-Husband alleging in written statement that he had divorced his wife-Service of written statement was treated as communication-High Court refused to grant any maintenance from date of communication-Appeal to Supreme Court-Whether a recital in any document, pleading or an affidavit, incorporating a statement by husband that he has already divorced his wife on an unspecified or specified date even if not communicated to wife would become an effective divorce on the date on which wife happens to learn of such statement contained in the copy of the affidavit or pleading served on her? (No)-Liberal opinion criticised-Case law discussed-Appeal allowed.
       Held : 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. (Paras 13 and 14)
       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. (Paras 15, 16 & 17)

Judgement Key Points

Key Points: - The Court held that the husband's plea of divorce made in his written statement had not been proved; no evidence of pronouncement or reconciliation attempts, so the divorce was not effective. (!) (!)
- Consequently, the Court held that the marriage had not been dissolved as of 5.12.1990, and the respondent was still liable for maintenance until the law ended it. (!)
- The Court rejected the view that a merely pleaded previous divorce in a written statement is sufficient to terminate the marital relationship; such plea must be supported by evidence. (!)
- The Court emphasized that for a talaq to be effective, it must be pronounced and communicated to the wife, not merely stated in court documents. (!) (!)
- The Court noted that the Family Court had relied on an affidavit from the respondent in another case that was not relevant to the present case. (!)

How to determine if a Muslim husband's divorce is effective and terminates maintenance liability when a plea of divorce is made in a written statement without evidence?

What is the effect of a divorce communicated to the wife by delivery of a written statement in the context of Muslim personal law?

What are the rights of a Muslim wife regarding maintenance after alleged divorce under Muslim law?

JUDGMENT

R.C. Lahoti, J.-Shamim Ara, the appellant and Abrar Ahmed, 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.

2. 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.

3. 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.

4. 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.

5. 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/-.

6. 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, th

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2002 Supreme(SC) 985

How to determine if a Muslim husband's divorce is effective and terminates maintenance liability when a plea of divorce is made in a written statement without evidence?

What is the effect of a divorce communicated to the wife by delivery of a written statement in the context of Muslim personal law?

What are the rights of a Muslim wife regarding maintenance after alleged divorce under Muslim law?

Cases Referred (3)