Back
2010(4) ALL MR 171
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
D. B. BHOSALE & R. Y. GANOO, JJ.
Mrs. Sabah Adnan Sami Khan
Versus
Adnan Sami Khan
Family Court Appeal No.179 of 2009
Decided on: 23rd March, 2010.
Court is unable to accept the submission of counsel for the respondent that since Khula is Talak-i-bain, the rigors of irrevocable divorce by triple pronouncements is applicable and Halala is mandatory. This submission proceeds on the assumption that the moment Talak becomes irrevocable (Talak-i-bain), Halala is mandatory. After considering the relevant provisions/sections in Mulla’s Mahomedan Law, in Chapter III of Part-I of the Compendium of Islamic Laws published by the All India Muslim Personal Law Board and the Commentaries in Asaf A.A. Fyzee and by Faiz and Tyabji, so also the judgments of the Delhi High Court in Mansroor Ahmed’s case and of the High Court in Dagdu Pathan’s case, Court has observed that merely because Talak in the Ahsan mode or Khula become irrevocable does not necessarily mean that the rigors of irrevocable Talak by triple pronouncement are applicable and Halala is mandatory. Irrevocable Talak in the sense that the former husband and wife cannot resume a legitimate marital relationship unless they contract a fresh Nikah with a fresh Mehr. As observed earlier, there is a clear distinction between the Talak by single pronouncement and the Talak by triple pronouncement. It is only in case of a triple Talak, re-marriage with the same husband is legal and valid if Halala is observed. In case of a Talak in the Ahsan mode, Halala is not mandatory. Thus, even if it is accepted that. the Talak under the divorce agreement between the appellant and the respondent was Talak-i-bain, it cannot be stated that Halala was mandatory.
In the result, Court holds that the divorce between the appellant and the respondent under the Divorce Agreement dated 18.4.2004 was a Talak in the Ahsan mode and, therefore, appellant was not obliged to undergo Halala prior to the second marriage. In Court’s opinion, even in case of a divorce by Khula, the wife is not obliged to undergo Halala before contracting remarriage with the same husband. Under the circumstances, the petition filed by the wife and her Misc. Application under the provisions of the Domestic Violence Act before the Family Court are tenable. The judgment and order dated 14.10.2009, impugned in the present appeal, is set aside and the petition and the Misc. Application stand restored to file. The Family Court shall endeavour to dispose of the petition expeditiously.
D. B. BHOSALE, J.:- In this appeal under section 19 of the Family Courts Act. 1984, the following questions are raised for our consideration:
(i) Whether a divorce between the appellant and the respondent under the Divorce Agreement dated 18th April, 2004 was a Talak in the 'Ahsan mode', as the appellant-wife claims, or was it a divorce by 'Khula', as claimed by the respondent-husband?
(ii) Whether, the appellant was obliged to undergo Halala prior to her remarriage with the respondent on 5th April, 2007 ?
(iii) If the divorce under the Divorce Agreement dated 18th April, 2004 is held to be a Talak by Khula, whether the appellant-wife was obliged to undergo Halala before the remarriage on 5.4.2007?
(iv) Whether the petition filed by the appellant-wife for divorce and her Miscellaneous Application under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, "the Domestic Violence Act") were tenable before the Family Court?
2. This appeal was admitted on 14.12.2009 and, on 1.2.2010, liberty was granted to the appellant to submit private paper book within a period of six weeks and to apply for fixed date of hearing of the appeal. The appellant, along with the appeal, had filed a Civil Application, being Civil Application No.53 of 2010. for interim reliefs prayed for therein. This civil application was placed on board on 10.3.2010 for hearing. On this date, we heard learned counsel for the parties for some time and, in the course of hearing, they jointly requested to take up the appeal itself for final disposal.
3. Learned counsel for the parties addressed the court only on the aforesaid questions, and all the questions being the questions of law they fairly stated that evidence for addressing the questions is not necessary and they would address the court on the basis of admitted facts and the material-placed before us and that they would not seek remand of the matter for allowing the parties to lead evidence. In view thereof, we have heard learned counsel for the parties at considerable length.
4. The facts, which are relevant to dispose of this appeal, are fairly simple. The appellant and the respondent are Mohammedans and they belong to the Sunni Sect. The appellant is a citizen of UAE and the respondent is a citizen of Pakistan. They got married on 15.9.2001 according to Islamic rites. At the time of their marriage, it was the appellant's third marriage and the respondent's second. Their marriage was dissolved under the Divorce Agreement dated 18.4.2004 singed by them and the witnesses. The parties remarried on 5.4.2007 at Jama Masjid, Bandra, Mumbai, (for short, "the second marriage"). The second marriage was registered with the Sub-Registrar of Marriages. Bandra, Mumbai on 2.2.2008. Sometime in June-July, 2008, disputes and differences arose between the appellant and the respondent, which resulted in execution of the Reconciliation Agreement dated 22.1.2009. Thereafter, the appellant on account of matrimonial discord, filed a complaint in the Metropolitan Magistrate Court at Andheri, (Railway Court), in February, 2009 under the provisions of the Domestic Violence Act. On 24.2.2009, the respondent filed a reply to her application under the Domestic Violence Act. On 16.3.2009, the appellant filed a petition, being Petition No.A-673 of 2009, under section 2(viii) of the Dissolution of Muslim Marriages Act of 1939, seeking dissolution of the second marriage. Along with the said petition, the appellant also filed Misc. Application seeking reliefs under the Domestic Violence Act. The respondent filed reply to the said application under the Domestic Violence Act so also her Written Statement in which, for the first time, he brought out an issue that the appellant did not perform Halala formalities before the second marriage and hence it is nullity. It was also contended that the petition for divorce and the application for interim reliefs are not tenable before the Family Court.
5. The Family Court,
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
