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2020 Supreme(Kar) 1481
IN THE HIGH COURT OF KARNATAKA AT BENGALURU (DHARWAD BENCH)
P.S. Dinesh Kumar, S. Vishwajith Shetty, JJ.
Zaheer - Appellant
Versus
Gousia Bano - Respondent
Miscellaneous First Appeal No. 103464 of 2018
Decided On : 22-09-2020
Ananth Mandagi, Advocate, M.K. Soudagar, Advocate, F.V. Patil, Advocate, Nitin Bolabandi, Advocate, Sweta Kulkarni, Advocate, Abhijeet Banahatti, Advocate
The main legal point established in the judgment is that Talaaq must be for a reasonable cause and preceded by attempts of reconciliation between the husband and wife and two arbitrators. The court also found that the knowledge of 'tuhr' period was unnecessary in the given case.
Headnote:
TALAAQ - Divorce - Muslim Law - SHAYARA BANO VS. UNION Of INDIA AND OTHERS, (2017) 9 SCC 1 - The court discussed the proper mode of Talaaq, the requirement of reasonable cause, attempts to resolve marital discord, and the necessity of knowledge of 'tuhr' period. The court held that Talaaq must be for a reasonable cause and preceded by attempts of reconciliation between the husband and wife and two arbitrators. The court also found that the knowledge of 'tuhr' period was unnecessary in the given case.
Fact of the Case:
The plaintiff-husband filed a suit for declaration of divorce/talaaq between the parties as per Talaaqnama and the marriage certificate issued by the Marriage Registrar as null and void. The suit was dismissed by the Family Court, leading to this appeal.
Finding of the Court:
The court found that the plaintiff had reasonable cause to divorce the defendant and that attempts were made to resolve the marital discord. The court also held that the knowledge of 'tuhr' period was unnecessary in this case. Consequently, the court allowed the appeal and decreed the suit in favor of the plaintiff.
Issues: The issues before the court were whether the plaintiff proved the pronouncement of Talaaq as per Muslim Law, whether the plaintiff was entitled to suit reliefs, and what order or decree should be passed.
Ratio Decidendi: The court's decision was based on the proper mode of Talaaq, the requirement of reasonable cause, attempts to resolve marital discord, and the necessity of knowledge of 'tuhr' period.
Final Decision: The appeal was allowed, the judgment and decree of the Family Court were set aside, and the suit was decreed in favor of the plaintiff.
JUDGMENT
P.S.Dinesh Kumar, J. - This appeal by the plaintiff-husband is directed against the judgment and decree dated 24.08.2018 in O.S.No.60/2016 on the file of learned Judge, Family Court, Belagavi, dismissing his suit for declaration of divorce/talaaq between the parties as per Talaaqnama and the marriage certificate issued by the Marriage Registrar on 29.12.2015 as null and void.
2. Heard Shri Ananth Mandagi, learned Senior Advocate for the appellant and Shri Nitin Bolabandi, learned advocate for the respondent.
3. For the sake of convenience, parties shall be referred as per their ranking before the trial Court.
4. Brief facts of the case are, plaintiff and defendant were married on 14.12.2015 as per Islamic rites and customs. Plaintiff left for USA on 06.01.2016. Defendant was staying in the matrimonial home. It is plaintiff's case that after few days, defendant left for her parents' house without informing plaintiff or his parents. She wrote letters as per Exhibit 4 series conveying her intention to move to Solapur permanently as she was not interested in staying at Belagavi or in Boston, USA, as it was not possible for her to live without her parents. The letters also conveyed that she was highly disturbed in plaintiff's house in Belagavi. She called upon the plaintiff to return from USA and settle down in Solapur and if that was not possible, there was no other option but to obtain divorce. Defendant also alleged that plaintiff was impotent.
5. It is the further case of plaintiff that plaintiff and his parents were worried about defendant's safety as defendant had left alone without informing. Plaintiff 's parents and members of the community made efforts to settle the matter amicably but defendant did not respond. Having no other option, plaintiff pronounced Talaaq in front of two male witnesses on 11.08.2016 and sent the Talaaqnama to the defendant along with the 'meher' and 'three months' iddat period maintenance amount. Defendant did not accept the postal cover and it was returned with an endorsement 'refused'. Plaintiff also sent an e-mail and the same was received by her. She has replied refusing to accept the Talaaq.
6. With these averments, plaintiff filed the instant suit seeking declaration of Talaaq between the parties as per Talaaqnama and a further declaration that Marriage Certificate issued by the Marriage Registrar on 29.12.2015 is null and void.
7. Suit was resisted by filing written statement denying plaint averments. Further, it was pleaded by the defendant that her parents had spent Rs.12 lakhs for the marriage which included gold ornaments. In the matrimonial home, she was confined in one room. She was forced to live with scarf over her head and full dress with full sleeves. She was not provided proper food and not treated well. Plaintiff was married earlier and left his previous wife. Defendant was always ready and willing to lead married life with the plaintiff but plaintiff has been avoiding. With these pleadings, defendant sought for dismissal of the suit.
8. Based on the pleadings, learned Family Court Judge has framed following issues:
i ) Whether the plaintiff proves that on 11.08.2016 he has pronounced Talaaq to the defendant as per Muslim Law?
ii) Whether the plaintiffis entitled for suit reliefs?
iii ) What order or decree?
9. On behalf of plaintiff, PWs-1 and 2 have been examined and Exs.P.1 to P.31 marked. On behalf of defendant, she got herself examined as DW-1 and Exs.D.1 to D3 marked.
10. Answering issues No.1 and 2 in the negative, suit has been dismissed. Hence, this appeal.
11. Shri Ananth Mandagi, learned Senior Advocate submitted that plaintiff who works as an Engineer was required to join his duty in Boston. Defendant left her matrimonial home without informing anyone. She has written letters and sent various messages levelling serious allegations against plaintiff and his family members. She has also alleged that plaintiffis impotent. Therefore, having no other option, plaint
