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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
(FULL BENCH)
B.H. Marlapalle, N.V. Dabholkar N.H. Patil, JJ.
Dagdu Chotu Pathan .... Petitioner.
Versus
Rahimbi Dagdu Pathan others.... Respondents.
Criminal Writ Petition No. 94 of 2000, decided on 2-5-2002.
Advocates appeared :
S.D. Hiwarekar, K.G. Khader Gulam Mustafa, amicus curiae, for Petitioner.
S.T. Shelke, for respondent Nos. 1 to 4.
Criminal Procedure Code, 1973 - Section 125 - Claim of maintenance by a Muslim woman - Claim challenged - Plea that he had divorced his wife - Magistrate awarded maintenance - Revision filed - Talaqnamas are customary - Mere existence of Talaqnama does not make a Talaq legal - Stages of Talaques need to be proved - It is necessary to prove talaq. - If the husband has not been able to prove his statement regarding divorce given earlier to making such a statement before the Court, there does not exist a Talaq in the eyes of law and such a statement cannot be taken as a fresh declaration of divorce; as mere declaration of divorce is not sufficient, by itself, for a valid divorce. Even if such statement in writing or made orally before the Court is supported by a Talaqnama, which may be a record of the fact of an oral Talaq or may be the deed by which the divorce is effected but that supportive document by itself does not lead to a conclusion that the Talaq was valid, effective and legal. Under the Wakf Act there is also a provision of registration of Talaq and a certificate to that effect is issued by the Qazi. In most of these cases, the Talaqnamas are customary and unless the factum of Talaq is proved, these documents in isolation have no sanctity in support of a valid Talaq. Mere existence of this document does not make the Talaq valid or legal and, therefore, it is necessary that the factum of Talaq and the stages it is preceded by, are required to be proved before the Court, if disputed by the wife and mere intentions of the husband while making such a statement before the Court cannot be accepted to be a valid Talaq from the date such a statement was made before the Court and in any form.
Modvat Scheme - Mohamedan Law - Muslim marriage is a civil contract - Once the marriage takes place it becomes an institution life long for spouses - Living together is not only a contract but a holy and sacred bond of care, love, and affection - Based on mutual respect - Both enjoy equal status - Mohammedan Law does not consider husband on higher status than wife. - It is popularly said that a Muslim marriage is nothing but a civil contract and a large section believes that the husband has an absolute freedom to dissolve the marriage without assigning reasons and at his free will. The Holy Qur an as well as the other sources of Personal Law teach that the process of reaching to the marital tie is certainly a civil contract but once the marriage is solemnized it becomes an institution life long for both husband and the wife and they do not live together by way of a mere contract but in a holy and sacred bond of love, care and mutual respect with equal status to both the partners. It happens, in some cases, that on account of incompatible temperament, extreme divergent up bringings, likes and dislikes or other physical incompatibilities or incapacities, the institution of marriage comes in peril. The Mohammedan Law does recognize the husband to be on a higher pedestal than the wife but that by itself does not mean that he can check-out his wife at his whim and caprice and without assigning any reasons. Islam recognises the principle of equity between the husband and wife during the subsistence of their marital tie. If the husband and wife are not able to get along as partners or to cohabit with happiness, Islam does not force them to continue in such unhappy and unsettling conditions. However, both the parties are given some chance to reform or mend their ways so as to keep the institution of marriage intact and this could be achieved by the process of reconciliation between the parties with the intervention of arbiters.
Modvat Scheme - Mohamedan Law - Proof of Talaq - Not only Talaq but its pre-conditions also need to be proved - Where it is wife disputing fact of Talaq before a Court - Mere statement in writing or oral is not sufficient to hold that her husband has divorced her - In cases of irrevocable Talaq in presence of Qazi or father of wife or any two witnesses this fact of Talaq has to be proved. - Even in case of irrevocable Talaq in the presence of a Qazi or the wife s father or two witnesses the factum of this form of Talaq is required to be proved, if challenged before a competent Court in appropriate proceedings. This may involve examining either the Qazi or the father or the witnesses. If there are two witnesses, both of them must be professing Islam. If there is only one male witness and remaining two are women all of them must be professing Islam. Their presence, when the husband pronounced Talaq and his so pronouncing Talaq, are required to be proved if the factum of valid Talaq is questioned by the wife. Mere assertion by the husband, in any form, is not sufficient to hold that he has exercised the right to give Talaq legally and validly. If any of the witnesses does not profess Islam, the Talaq given in his/her presence shall be invalid and inoperative.
Modvat Scheme - Mohamedan Law - Procedure for Talaq - Pronouncement aimed at Talaq-e-Hasan are to be made in a fixed period - Three Tuhrs are to be considered - No intercourse in this period should take place - Period of Iddat ranges from 90 days to 130 days - Talaq in Ahsan becomes irrevocable and on completion of Iddat Talaq in Hasan becomes irrevocable - Mere registration of divorce is not a valid divorce - In case of valid cause still it is necessary to show that attempts were made for settlement - In absence of it divorce cannot be a valid one. - Even if the reconciliation process has been gone through and found to be ineffective or in vain, the husband has to follow the prescribed procedure for Talaq by Ahsan or Talaq by Hasan mode. Sections 11 and 12 of the Compendium deal with proper and improper Talaq whereas Section 2 prescribes the conditions governing the essence of Talaq. Even written Talaq in term of Section 3 has several forms. Section 5 has set out the conditions for effectiveness of Talaq and it has laid down the situations where the Talaq would not be effective. The Muslim Law, thus, recognises effective/proper as well as ineffective/ improper Talaq and while exercising this right of Talaq it is imperative that the husband s action of invoking this right meets these requirements. Lest, the Talaq will be ineffective or invalid or improper. The utterances/ pronouncements aimed at Talaq-e-Ahsan or Talaq-e-Hasan are required to be made during a specific period i.e. Tuhr (period between menstruation) followed by abstinence from sexual intercourse during the period of Iddat. In the later form three pronouncements are required to be made during successive Tuhrs and no intercourse taken place during any of the three Tuhrs. Thus, the period of Iddat varies from 90 to 130 days. A Talaq in Ahsan mode becomes irrevocable and complete on the expiration of the period of Iddat, whereas a Talaq in Hasan mode becomes irrevocable and complete on the third pronouncement irrespective of Iddat. Until Talaq becomes irrevocable the husband has the option to revoke it which may be done either expressly or impliedly as by resuming sexual intercourse. In a non-consummated marriage pronouncing a single Talaq even though the wife is in menstruation, will be Talaq-e-Hasan. Pronouncing three Talaqs in three months on a minor or a woman past menopause is also Talaq-e-Hasan. These modes are required to be followed so as to rule out the possibility that the wife has conceived and if the divorced woman is pregnant, her Iddat period is till the end of pregnancy. The Iddat period, thus, varies in three different forms depending on the physical conditions of the wife and these are three menstruation courses. After the date of divorce if she is subject to menstruation, three lunar months after she is divorced if she is not subject to menstruation and if she is in enceinte at the time of her divorce the period between the divorce and the delivery of her child or the termination of her pregnancy whichever is earlier. The pronouncement of Talaq by the husband in the oral form or giving Talaq in writing has to necessarily satisfy all these conditions of pronouncing the Talaq at a particular time and such a Talaq must be valid and effective. It is not that on his sweet will the husband has the unqualified prerogative to exercise this right of pronouncing Talaq. Uncontrolled use of divorce without regard to the restrictions established by the Shari at is a sin. To divorce the wife, without reason, only to harm her or revengeful due to the non-fulfilment of the husband s unlawful demands by the wife or her guardians and to divorce her in violation of the procedure prescribed by the Shari at is Haram (absolutely prohibited).
Modvat Scheme - Mohamedan Law - Right to Talaq - To husband - He has to express reasons of Talaq to wife - After this she is given proper time to change herself - If she does not change herself, husband has to take second stage of re- conciliation - It is by help of two arbitrators from each sides - If still grievance exists, then husband has a right to Talaq wife - Arbitration and conciliation is a pre- talaq stage. - A divorce by the husband is Talaq and it has its oral as well as written forms. The oral form of Talaq can be effected in three modes viz. Talaq-e- Ahsan, Talaq-e-Hasan, Talaq-ul-Biddat or Talaq-e-Badai. The first two forms are conditioned and they are accepted to be more civilized but while resorting to any of these two forms there are conditions precedent and it is not that the husband is at his free will to resort to any of these modes at any time and without assigning any reasons. If the husband feels that his wife does not care for him, she is incompatible, she does not listen to him, she does not love him, she refuses to cohabit with him, she engages in cruel behaviour, she in unfaithful or for any other reason, he has the right to give Talaq to his wife but by following certain procedure. Firstly, he has to make it known to his wife about any of these reasons and she must be given time to change her behaviour. If by his direct conversation/persuasions she does not change her behaviour, the husband has to resort to the process of conciliation by informing to her father or any other parental relations. Two arbitrators, one from wife and one from the husband, are required to be appointed and it shall be the duty of the arbiters to bring in a settlement between the parties so that they live together happily and in spite of these efforts having been made if the discord still persists to an irreparable level there is no alternative but to separate and it is at this stage that the husband has the right to give Talaq to his wife. The stage of conciliation with the intervention of the arbiters is a condition precedent for effecting Talaq either in Ahsan form or Hasan form. It will be seen that in all disputes between the husband and the wife the Judges are to be appointed from the respective people of the two parties. These Judges are required first to try to reconciliate the parties to each other failing which divorce is to be effected. Therefore, though it is the husband, who pronounces the divorce, he is as much bound by the decision of the Judges as is the wife. This shows that the husband cannot repudiate the marriage at his will. The case must be first referred to two Judges and their decision is binding. Talaq must be for reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by the arbitrators, one from the wife s family and the other from the husband s. If the attempts failed, Talaq may be effected. In other words, an attempt at reconciliation by two relations, one each of the parties, is an essential condition precedent to Talaq
B.H. MARLAPALLE, J.:---The petitioner was married to the respondent No. 1 Rahimbi; and they begot three children from the said wedlock. However, the respondent No. 1 approached the Judicial Magistrate, First Class at Latur by an application under section 125 of the Criminal Procedure Code for maintenance for herself and for the three children claiming that the petitioner neglected her and the children after he married one Khamrunbee from whom also he begot children. He neglected the applicants and refused to maintain them during the last three years before she approached the learned Magistrate.
2. On receipt of summons, the petitioner appeared before the Magistrate and filed a written statement opposing the claim made by the applicants i.e. the present respondent Nos. 1 to 4. He claimed that he had given Divorce (Talaq) to the respondent No. 1 on 24th February, 1996 in the presence of Qazi and two witnesses and thereafter he had performed the second marriage with Khamrunbee. He also stated that one of the witnesses was a Muslim where as the other one was a Hindu. He, therefore, prayed that the application filed under section 125 of the Criminal Procedure Code be dismissed. This plea was rejected by the learned 2nd Joint Judicial Magistrate, First class at Latur vide his judgment and order dated 21st November, 1998 and the maintenance application filed by the respondent Nos. 1 to 4 came to be allowed. The learned Magistrate held that the fact of Talaq must be proved and it cannot be accepted by the Court merely on pleadings in the written statement. In this regard, the learned Magistrate relied upon a judgment of this Court (Single Judge) in the case of (Mehtabbi w/o Shaikh Sikandar v. Shaikh Sikandar)1, 1995(3) Bom.C.R. 433. This order, passed by the learned Magistrate, has been impugned in the instant petition.
3. When this petition came up for hearing alongwith Criminal Writ Petition No. 308 of 1999 before the learned Single Judge (Vagyani, J.) on 7th February, 2001 it was noted that a Division Bench of this Court (A.V. Savant and T.K. Chandrashekhara Das, JJ.) in the case of (Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh)2, 1993(3) Mh.L.J. 964 had held that the view taken by the learned Single Judge in the case of Mehtabbi (supra) was not a good law and when a plea of Talaq is taken in the written statement filed before the Court, the wife is deemed to have been divorced from the date such a statement was made in the written statement though the husband takes the plea of Talaq on any date earlier to the filing of such a written statement and was not required to prove the factum of divorce by leading evidence before the Court.
4. However, it appears that another Single Bench of this Court at Nagpur had also made a reference to decide the controversy as arising in view of two different judgments of the Single Benches viz. (Chandbi Ex. w/o Bandesha Mujawar v. Bandesha s/o Balwant Mujawar)3, A.I.R. 1961 Bombay 121 on one hand and (Shaikh Mobin s/o Shaikh Chand v. State of Maharashtra)4, 1996(1) Mh.L.J. 810 on the other hand and, therefore, a reference came to be made to a Division Bench at Nagpur, in the case of (Saira Bano w/o Mohd. Aslam v. Mohd. Aslam Ghulam Mustafa Khan)5, 2000(Supp.) Bom.C.R. (N.B.)92 : 1999(3) Mh.L.J. 718 though similar reference was already answered by the Division Bench at Mumbai (A.V. Savant and T.K. Chandrashekhara Das, JJ.) in the judgment dated 22nd April, 1999 the said opinion was not placed before the Nagpur Bench which decided the said reference 1999(3) Mh.L.J. 718 on 28th September, 1999. The Division Bench at Nagpur (G.D. Patil and A.B. Palkar, JJ.), without referring to the view of the earlier Division Bench in Jaitunbi Mubarak's case (supra) held that the factum of divorce (Talaq) as stated in the written statement was required to be proved and, therefore, the law laid down in the case of Mehtabbi (supra) and Shaikh Mobin (supra) was correct and the view taken in Chandbi's case (su
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