The validity of Talaq in writing and the entitlement to maintenance under Sec. 125 of Cr.P.C.

JUDGMENT :

1. The petitioner-husband is aggrieved by the order passed by the Prl. Sessions Judge, Udupi, in Crl.R.P.No.55/2014, while upholding the orders passed in M.C.No.52/2006 by the Prl. Civil Judge and JMFC, Karkala, directing the petitioner herein to pay maintenance of Rs.3,000.00 per month to the respondent-wife.

2. Some of the admitted facts are that the marriage between the petitioner and the respondent herein was solemnized on 18/8/2004 as per the rights and customs of Mohammadan Law. The respondent herein filed a petition under Sec. 125 of Cr.P.C. seeking maintenance of Rs.5,000.00 p.m. from the petitioner. Objections were filed by the petitioner, more specifically contending that during the course of the proceedings, the petitioner has divorced the respondent and therefore he is not required to pay maintenance.

3. Learned Counsel for the petitioner submits that the respondent was examined as PW-1. In her evidence, the respondent has admitted that she received a letter of Talaq dtd. 13/1/2009 from the petitioner herein and prior to that there was an attempt of settlement of dispute before the Karkala Jamath. This admission on the part of the respondent is said to be found in her petition filed under Sec. 12 of the Protection of Women from Domestic Violence Act, 2005 and the respondent has stated in the application that there was an attempt for settlement of dispute before the Jamath. It is contended that the respondent has admitted that after the failure of conciliation at the hands of the Jamath, the petitioner herein issued the letter of Talaq declaring thrice that he has divorced the respondent.

4. While referring to the case of Shamim Ara Vs. State of U.P. And Another (2002) 7 SCC 518, it is submitted that the Hon'ble Supreme Court has examined what constitutes a valid Talaq.

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

(1) Oral talak.-No particular form of words is prescribed for effecting a talak. If the words are express (saheeh) or well understood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved (e). It is not necessary that the talak should be pronounced in the presence of the wife or even addressed to her (f). In a Calcutta case the husband merely pronounced the word 'talak' before a family council and this was held to be invalid as the wife was not named (g). This case was cited with approval by the Judicial Committee in a case where the talak was valid though pronounced in the wife's absence, as the wife was named (h). The Madras High Court has also held that the words should refer to the wife (i). The talak pronounced in the absence of the wife takes effect though not communicated to her, but for purposes of dower it is not necessary that it should come to her knowledge (j); and her alimony may continue till she is informed of the divorce (k). As the divorce becomes effective for purposes of dower only when communicated to the wife, limitation under Article 104 for the wife's suit for deferred dower ran from the time when the divorce comes to her notice (l), under the Act of 1908. See also the Limitation Act, 1963.

Words of divorce.-The words of divorce must indicate an intention to dissolve the marriage. If they are express (saheeh), e.g., 'Thou are divorced', 'I have divorced thee', or 'I divorce my wife forever and render her haram from me' (Rashid Ahmad v. Anisa Khatun (h), they clearly indicate an intention to dissolve the marriage and no proof of intention is necessary. But if they are ambiguous (kinayat), e.g., 'Thou art my cousin, the daughter of my uncle, if thou goest' (Hamid Ali v. Imtiazan [ILR (1878) 2 All 71] ) or 'I give up all relations and would have no connection of any sort with you' (Wajid Ali Khan v. Jafar Husain Khan [ILR (1932) 7 Luck 430 : 136 IC 209 : AIR 1932 Oudh 34], the intention must be proved.

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