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IN THE HIGH COURT OF GAUHATI
Ujjal Bhuyan, J.
Baharun Saikia - Appellants
Vs.
State of Assam and Ors. - Respondents
W.P. (C) No. 6195 of 2010
Decided On : 06-12-2018
Constitution of India – Article 226 – Assam Moslem Marriages and Divorces Registration Act, 1935 – Section 20 – Principles of Mahomedan Law by Mulla – Chapter-XVI – Section 311 312 – Petition Against Divorce (Talak) Under Muslim Law – Petitioner seeks quashing of Ahsan Talak-1 and Ahsan Talak-2 as well as order, passed by the respondent No. 3, Muslim Marriage and Divorce Registrar, rejecting the objection lodged by the petitioner against issuance of Ahsan Talak-1 – Petitioner received Ahsan Talak-1 from the Muslim Marriage and Divorce Registrar – It was stated therein that petitioner did not listen to her husband-respondent No. 4 and did not obey Islamic Shariat which resulted in dispute between the two rendering conjugal life difficult. Since there was no other alternative, respondent No. 4 gave Ahsan ek Talak i.e., Ahsan Talak-1 – Counsel appearing for the petitioner contend that efforts at conciliation and settlement of dispute must be made before annulment of marriage by taking recourse to talak – No such efforts at conciliation and settlement were made before issuance of Ahsan Talak-1 and Ahsan Talak-2 rendering the same a nullity in the eye of law – He further submits that appeal of the petitioner was not disposed of by the appellate authority in accordance with law – Appellate authority had merely endorsed what respondent No. 3 stated – Held, Talak ahsan consists of a single pronouncement of divorce made a tuhr i.e., period between menstruations followed by abstinence from sexual intercourse for the period of iddat – Therefore, what is seen from the above is that when it is a case of talak ahsan, there is single pronouncement of divorce made during particular period of tuhr – Having briefly noticed the legal position concerning talak ahsan or talak hasan, notwithstanding the procedural aspect, the core of the issue is that talak must be for a reasonable cause – Talak cannot be thrust upon the wife by the husband on his mere whims and fancies – That a part, attempts at reconciliation between husband and wife by two arbiters, one nominated by the wife from her family and the other nominated by the husband from his family is a condition precedent for a valid talak; only if reconciliation fails talak can be effected – On going through the impugned Ahsan Talak-1 and Ahsan Talak-2, Court is of the view that the reasons given therein are not at all reasonable to warrant dissolution of marriage by a talak – Ahsan Talak -1 and Ahsan Talak-2 were not preceded by any attempt at reconciliation between the parties by appointment of two arbiters as above – That being the position, Court has no hesitation to hold that talak ahsan-1 as well as talak ahsan-2 would be legally untenable and would have no legal consequence – In so far disposal of the appeal filed by the petitioner is concerned, the appellate authority had not applied his mind to the basic legal issues – Consequently, Ahsan Talak-1 and Ahsan Talak-2 are set aside and quashed – Writ petition is accordingly allowed – Petition Allowed
JUDGMENT :
Ujjal Bhuyan, J.
1. Heard Mr. K. Agarwal, learned Senior Counsel assisted by Mr. Sk. Muktar, learned counsel for the petitioner and Mr. A Chakraborty, learned Government Advocate, Assam. Also heard Mr. AR Bhuiya, learned counsel for respondent No. 4.
2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of Ahsan Talak-1 dated 27.05.2009 and Ahsan Talak-2 dated 28.06.2009 as well as order dated 29.06.2009, passed by the respondent No. 3, Muslim Marriage and Divorce Registrar, Kalgachia, Barpeta rejecting the objection lodged by the petitioner against issuance of Ahsan Talak-1.
3. Petitioner is a practicing Advocate of the High Court. She had married respondent No. 4 on 05.12.1999 as per Islamic Shariat at Guwahati. The maharana amount for the marriage was fixed at Rs. 55,555.00. It is stated that at the time of marriage, respondent No. 4 was a journalist. Soon afterwards, respondent No. 4 joined politics and became a member of the Congress (I) political party.
4. Since marriage till 2004, petitioner and respondent No. 4 were staying together in a rented accommodation. It is alleged that over a period of time, respondent No. 4 developed extra marital affairs which caused rift between petitioner and respondent No. 4. In 2006, respondent No. 4 became Member of Assam Legislative Assembly (MLA) from No. 44 Jania Constituency where after both petitioner and respondent No. 4 shifted to MLA Hostel Complex, Dispur at Guwahati. According to the petitioner, after his marriage, respondent No. 4 was a changed personality and behaved in an undignified manner with the petitioner. He openly declared his extra marital affair with another woman. Despite objection by the petitioner, there was no change in the behavior and attitude of respondent No. 4; rather, he started mentally torturing the petitioner by threatening her with talak. Finally, he declared that he would go for a second marriage with the other woman.
5. Unable to bear such mental torture and humiliation, petitioner left her matrimonial home on 01.02.2009 and started living with her parents.
6. Petitioner received Ahsan Talak-1 dated 27.05.2009 from the Muslim Marriage and Divorce Registrar, Kalgachia, Barpeta. It was stated therein that petitioner did not listen to her husband-respondent No. 4 and did not obey Islamic Shariat which resulted in dispute between the two rendering conjugal life difficult. Since there was no other alternative, respondent No. 4 gave Ahsan ek Talak i.e., Ahsan Talak-1.
7. On receipt of Ahsan Talak-1, petitioner submitted objection before respondent No. 3 on 12.06.2009. It was contended that the marriage had taken place at Guwahati where after the two parties were residing alone at Guwahati. Therefore, respondent No. 3 at Barpeta did not have jurisdiction to issue Ahsan Talak-1; which in any case was contrary to and in conflict with the principles of Mahomedan Law. The grounds given by respondent No. 4 to justify Ahsan Talak-1 were baseless and without any substance. Respondent No. 4 did not make any such allegation either before the petitioner or before her guardian.
8. Petitioner also filed an appeal before the Deputy Commissioner, Barpeta-cum-Registrar, Barpeta on 12.06.2009 under Section 20 of the Assam Moslem Marriages and Divorces Registration Act, 1935.
9. In the meanwhile, Ahsan Talak-2 dated 28.06.2009 was served upon the petitioner. Here also the same allegations were reiterated.
10. Respondent No. 3 informed the petitioner vide letter dated 29.06.2009 that her objection to Ahsan Talak-1 was without any substance. Question of jurisdictional error in so far application of Mahomedan Law is concerned does not arise. Objection that Ahsan Talak-1 was contrary to and in direct conflict with provisions of Mahomedan Law was found to be very vague. It was pointed out that petitioner had no right to object to Ahsan Talak-1 given by her husband and her objection would not impact the legality of it in any manner.
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