Divorce under Muslim Law necessitates strict adherence to established procedures; failure to substantiate claims of 'Talaq' renders such claims invalid.

JUDGMENT :

S. B. PD. SINGH, J.

Heard the parties.

2. The present appeal has been filed under Section 19(1) of the Family Court Act, 1984 impugning the judgment and decree dated 28.02.2017 passed by learned Principal Judge, Family Court, West Champaran at Bettiah in Title Suit No. 198 of 2007 filed under Section 308 of the MUSLIM LAW and under Sections 7(1)(A) of the Family Court’s Act for declaration of divorce since 08.10.2007 on the basis of pronouncement made by the appellant to the respondent, which was dismissed by the Family Court.

3. The case of the appellant as per petition filed before the Family Court is that the appellant-Shams Tabrej has filed a petition under Section 308 of the MUSLIM LAW and 7(1)(A) of Family Court's Act against the respondent- Isarat Jahan on 29.10.2007 stating therein that both the parties were married on 12.1.2000 and they started leading peaceful conjugal life and two sons were born out of their wedlock. After some time, the respondent changed herself as a quarrelsome lady and always used to stay at her parental house. The appellant is a poor person working as a Salesman at a shoe shop and that was the reason, the respondent used to stay at her parents’ house who were economically well. The appellant tried his best to pacify the matter, but all his efforts went in vein. Ultimately, the appellant filed a case before Darul Qaza, Bettiah for Bidagari of the respondent and Darul Qaza ordered the respondent to stay at her matrimonial house but after 15 days of stay at her Sasural, the respondent was taken back to her parental house by her brothers and since then, she is living at her parental house. The appellant had also filed Matrimonial Case No. 03 of2007 under Section 281 of the MUSLIM LAW but in spite of the direction of the Court below, the respondent went with her brothers to her parent’s house and disobeyed the Court's order. There are several criminal cases pending between the parties. Hence, in the light of compelling circumstances, the appellant decided to take divorce from the respondent and pronounced three times “Talaq” on 08.10.2007 in presence of some witnesses, which was irrevocable and final. Now the matrimonial relationship between the parties is not existing since 08.10.2007. The appellant has paid the entire amount of “Dain Mehar” and expenses of “Iddat” to the respondent. Hence, he prays to declare three times “Talaq” pronounced on 08.10.2007 as valid, legal and operative one.

4. In response to the summon/notice issued by the Court, respondent appeared and filed her reply/written statement.

5. In her written statement/reply, the respondent has stated that most of the facts and allegations stated in the aforesaid petition are false and baseless and the case is not maintainable in the eye of law or on the basis of facts. She is still legally married wife of the appellant and she was never divorced. She is still ready to lead peaceful conjugal life with the appellant, but it is the appellant who does not want to continue matrimonial relationship with the respondent. In Complaint Case No. 2948-C of 2007, the father of appellant introduced respondent as wife of Shams Tabrej (appellant) on 6.11.2008. This supports the statement of the respondent that she is still legally married wife of the appellant.

6. On the basis of the rival contentions of both the parties, following issues were framed in this case by the learned Trial Court :-

1. Whether the suit as framed is maintainable?

2. Whether the plaintiff-appellant has cause