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2002 Supreme(Mad) 1384
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM
M.Shahul Hameed - Appellant
Versus
A.Salima and Others - Respondents
SECOND APPEAL No.869 of 1992
Decided On : 22 November 2002
The pronouncement of Talaq should be effective by establishing reconciliation attempts and attestation by arbiters, as ordained by the Holy Quran.
Headnote:
Talaq - Muslim Marriage - Muslim Shariat Act - [Muslim Shariat Act, Holy Quran] - The court held that the pronouncement of Talaq should be effective by establishing reconciliation attempts and attestation by arbiters, as ordained by the Holy Quran. The letter in question did not indicate the pronouncement of triple Talaq, and therefore, the Talaq was not valid.
Fact of the Case:
The plaintiff sought a declaration that the Talaq pronounced in a letter sent by the first defendant was not valid and requested a permanent injunction against the first defendant from solemnising a second marriage. The first defendant contested, claiming that the Talaq pronouncement was in accordance with the Muslim Shariat Act.
Finding of the Court:
The court found that the letter did not indicate the pronouncement of triple Talaq, as required by the Holy Quran, and therefore, the Talaq was not valid. The court also held that the second and third defendants were unnecessary parties in the suit, and the permanent injunction would be against the first defendant alone.
Issues: Validity of Talaq pronouncement, entitlement to approach second and third defendants for permission to marry multiple wives under Shariat Act.
Ratio Decidendi: The pronouncement of Talaq should be effective by establishing reconciliation attempts and attestation by arbiters, as ordained by the Holy Quran. The letter in question did not indicate the pronouncement of triple Talaq, and therefore, the Talaq was not valid.
Final Decision: The second appeal was dismissed, and no costs were awarded.
M. Shahul Hameed, the first defendant, the appellant herein aggrieved by the concurrent judgments and decrees passed by the Courts below declaring that the Talaq pronounced through the letter sent by him to his wife is not valid and granting permanent injunction to the wife/plaintiff, has filed this second appeal.
2. The case of the plaintiff is as follows:
"The plaintiff A. Salima got married to the first defendant Shahul Hameed on 2.4.1978 under Muslim rites. The first defendant, the appellant herein is an Officer in the Office of the Collector of Central Excise and Customs, Madurai, the third defendant, which is under the control of the second defendant Union of India. Initially, they were living happily. The plaintiff was subjected to various medical tests to find out whether she got conceived. She was also subjected to operation. Since she became weak, she requested her husband to get transfer from Tirunelveli near Salem so that she could get treatment from Dr.Joseph, who belongs to Chennai and visits Saraswathy Nursing Home at Salem periodically. He did not agree for that. In the meantime, the plaintiff received a letter dated 30.11.1987 containing Talaq pronouncement. After sending the same, the first defendant has been making arrangement for second marriage. He has also requested the second and third defendants to give permission to solemnise second marriage. The letter dated 30.11.1987 is vague and as such, the contents of the said letter would not constitute a valid Talaq. Hence, she filed the suit seeking for declaration that the Talaq pronounced in the said letter is not valid and for permanent injunction restraining the first defendant from solemnising second marriage and also restraining the other two defendants from granting any permission for the same."
3. The suit was contested by the first defendant contending that after marriage, there were so many instances that caused misunderstanding between the spouses and the plaintiff did not show due respect to her husband/first defendant and after taking true steps for conciliation and since the conciliation talks failed, the first defendant sent a letter dated 30.11.1987 containing pronouncement of Talaq, attested by the witnesses, which is in accordance with the Muslim Shariat Act and consequently, the plaintiff would not be entitled to declaration or permanent injunction.
4. According to the defendants 2 and 3, they are not necessary parties and the first defendant did not file any application for getting permission and if such a permission is sought, the same will be considered in accordance with law.
5. On the above pleadings, necessary issues were framed. Neither the plaintiff nor the first defendant did not choose to adduce any oral evidence. The plaintiff filed only two documents, namely Exs.A1 and A2. Ex.A1 is the xerox extract of Nikkah Register relating to the marriage held between the plaintiff and the first defendant and Ex.A2 is the letter dated 30.11.1987 containing Talaq pronouncement sent by the first defendant to the plaintiff.
6. The trial Court on a scrutiny of the plaint, written statements and Exs.A1 and A2, decreed the suit in favour of the plaintiff.
7. Challenging the same, the first defendant filed an appeal before the lower appellate Court, which in turn confirmed the decree in regard to declaration and permanent injunction, but however, the lower appellate Court held that the defendants 2 and 3 are unnecessary parties and as such, permanent injunction would be in respect of the first defendant alone.
8. Not satisfying with that, the first defendant has filed this second appeal.
9. At the time of admission, the following substantial questions of law formulated by this Court on 1.7.1992:
1) Whether the lower appellate Court was right in the view it took that the contents of Ex.A2 would not constitute a valid talaq nama and that the respondent continued to be the wife of the appellant?
2) Is the substantial question of law that arises for co
