A person alleging divorce must establish the form of talak pronounced and when it became irrevocable, and a mere mention in a written statement is not sufficient to have the effect of a divorce unless pronounced in the presence of witnesses or the wife herself.

Headnote:
Divorce - Maintenance - Summary: The court rejected the reference made by the learned Sessions Judge, Medak, and upheld the order of the Magistrate directing the husband to pay maintenance to the wife. The court emphasized the need for a person alleging divorce to establish the form of talak pronounced and when it became irrevocable, highlighting that a mere mention in a written statement is not sufficient to have the effect of a divorce unless pronounced in the presence of witnesses or the wife herself.
Fact of the Case:

The husband alleged that he had divorced his wife two years prior to the petition for maintenance, but could not establish the fact. The trial court rejected the husband's plea, resulting in the order of maintenance being passed in favor of the wife.
Finding of the Court:

The court rejected the reference and upheld the order of the Magistrate directing the husband to pay maintenance to the wife at the rate of Rs. 20 per month.
Issues: The issue revolved around the husband's claim of having divorced his wife two years prior to the petition for maintenance and the rejection of this plea by the trial court.
Ratio Decidendi: The court emphasized the need for a person alleging divorce to establish the form of talak pronounced and when it became irrevocable, highlighting that a mere mention in a written statement is not sufficient to have the effect of a divorce unless pronounced in the presence of witnesses or the wife herself.
Final Decision: The reference made by the learned Sessions Judge was rejected, and consequently, the order of the Magistrate directing the husband to pay maintenance to the wife at the rate of Rs. 20 per month was upheld.

( 1 ) THIS is a reference made by the learned Sessions Judge, Medak recommending that the order of maintenance passed by the trial Court in favour of the wife at the rate of Rs. 20 per month should be set aside and in view of a decision of the erstwhile Hyderabad High Court in Wahab Ali v. Qambo Bi, A. I. R. 1951 Hyd 117, holding that if the previous divorce is not established, the divorce will operate from the time which is mentioned in the written statement, the husband should be directed to pay maintenance for the period of iddat i. e. about four months. In this case it appears to me that the husband (petitioner) in his counter had alleged that as he had divorced his wife two years prior to the petition for maintenance, no question of maintenance arises but he could not establish the fact that he had pronounced divorce two years prior to the petition. Therefore the plea of the husband was rejected by the trial court and as a result the order of maintenance was passed. In my view, with due respect to the learned Judge who decided the case mentioned above, the position of law has not been correctly laid down. Under Muslim Law, there are different modes of talak :- (1) Talak Ahsan :-This consists of a single pronouncement of divorce made during a Tuhr (period between menstruations) followed by abstinence from sexual intercouise for the period of iddat. (2) Talak Hasan:-This consists of three pronouncements made during successive Tuhrs, no intercourse taking place during successive Tuhrs, no intercourse taking place during any of the three Tuhrs. (3) Talak-ul-biddat:-This consists of- (1) three pronouncements made during a single Tuhr either in one sentence or more than one ; or, (2) a single pronouncement made during a Tuhr clearly indicating an intention irrevocably to dissolve the marriage.

( 2 ) IN view of this a person who alleges that he has given divorce must establish what form of talak was pronounced and when it became irrevocable. Unless a peerson complies with the conditions mentioned above, a divorce does not become effective. A mere mention in a written statement, in my view cannot be sufficient to have the effect of a divorce unless it is pronounced in the presence of witnesses or the wife herself. The view of the learned Sessions Judge proceeds on the basis of the decision of the erstwhile Hyderabad High Court, which in my view, is not correct.

( 3 ) I, therefore, reject the reference and consequently the order of the Magistrate, directing the husband to pay maintenance to the wife at the rate of Rs. 20 per month will stand. Reference rejected.

Click Here to Read the rest of this document

1969 Supreme(AP) 68

Andhra Pradesh High CourtJudges : MOHD.MIRZAImam Saheb - AppellantVersusHajju Bee - RespondentDecided On : 04-25-69

A person alleging divorce must establish the form of talak pronounced and when it became irrevocable, and a mere mention in a written statement is not sufficient to have the effect of a divorce unless pronounced in the presence of witnesses or the wife herself.

Andhra Pradesh High Court
Judges : MOHD.MIRZA
Imam Saheb - Appellant
Versus
Hajju Bee - Respondent
Decided On : 04-25-69