IMPORTANT POlNT
A Mohomedam husband cannot divorce his wife at his whim or capriceivorce must be for a reasonable cause and it must be preceded by a pre-divorce conference to arrive at a settlement.

JUDGMENT & ORDER

Manisana, J. - This revision petition arises from an order of the Principal judge of the Family Court at Guwahati made on 7.8.1992 in Case No FC (Cri.) No 111/92/74-M/90.

2. Facts: - The case of the petitioner, in brief, is thus. The petitioner Zeenat Fatema Rashid married Md Iqbal Anwar, on 2.12.1987, according to Muslim rites. After the marriage they lived as husband and wife at husband's residence. She had borne him a son on 3.11.1989. After that she was ill-treated by her husband and her in-laws. She, therefore, instituted a criminal case on 13.8.1990 being case No. 87 of 1990. Finding no other alternative, she had to lead her husband's house and had to file criminal case for getting back her properties and those properties were recovered on 31.8.1990. She also filed a case under section 125, Cr. P.C. against her husband on 29.8.1990 claiming maintenance for herself and her minor child. Md. Iqbal Anwar (the respondent) contested the case by filing written statement. His main defence is that he had divorced his wife, the petitioner herein, on 31.8.1990.

3. The family Court has held that these had been a divorce duly effected and, therefore, claim for maintenance would be determined under section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. With regard to maintenance of child, the Family Court has directed that interim maintenance granted would continue pending final disposal of the case. Hence this petition.

4. The question which arises for consideration is whether there had been a divorce duly effected. Under the Mahomedan Law, divorce by talak may be effected either orally (by spoken words) or by a written document called a talaknama. No particular form of words is prescribed for effecting a talak, but the words of divorce must indicate an intention to dissolve the marriage (see Mulla's principles of Mahomedan Law).

5. Mr Phukan, the learned counsel for the petitioner, has contended that a Mahomedan husband cannot divorce his wife at his whim and caprice. The next question which therefore, arises for consideration is whether a Mahomedan husband can divorce his wife at his whim and caprice. In Sarabai v. Rabiabai1, it has been held that there may not be a particular cause for divorce, and mere whim is sufficient. It is good in law, though bad in theology. In Asha Bibi v. Kadir Ibrahim2, it has been held that, although an arbitrary or unreasonable exercise of divorce of marriage is strongly condemned in the Quran and is treated as spiritual offence, it does not affect the legal validity of a divorce duly effected by husband. In Ahmad Kasim Molla v. Khatun Bibi3, the Calcutta High Court has held that any Mahomedan husband may divorce his wife at his mere and caprice. However, a single Judge of this Court has, in Jiauddin Ahmed v. Anwara Begum4, held that divorce must be for a reasonable cause, and that must be preceded by an attempt at reconciliation between the husband and wife by two arbiters, one chosen by the wife from her family and the other by the husband from his side. Learned Single Judge, after considering the cases cited above, the observations of some of the High Courts, the mandates of the Quean, and the treaties on Mahomedan Law of various authors and scholars, came to the above conclusion. This decision of the learned single Judge was approved by a Division Bench of this Court Rukia v. Abdul Khalique5

6. Mr Barna, learned counsel for the respondent, has submitted that in view of the earlier decisions of other High Courts that a Mahomedan husband may divorce his wife at his whim and caprice, the decisions of this Court are required to be reviewed for the settled position of law prevailing for a considerable long period, that is to say, long standing legal position, should not be disturbed. Mr. Barua has further submitted that the matter may be referred to a larger Bench.

7. We are not inclined to accept the submission made by Mr. Barua. We approach the matter as follows. U