IMPORTANT POINT
Mohammedan Law – Divorce – ‘Talaq’, in order to be effective has to be pronounced – In case there is no proof of ‘talaq’ having taken place, mere plea taken in written statement of a divorce having been pronounced sometime in past cannot by itself be treated as effectuating ‘talaq’ on date of delivery of copy of written statement to wife.

JUDGMENT

This Civil 1st Appeal has been preferred against the judgment and decree dated 16.03.2016, (for short ‘the impugned judgment) passed by the court of learned 3rd Additional District Judge Srinagar in Civil Original Suit No.18/N titled Mehbooba Akhter & Ors. Vs. Ghulam Mohammad Pandit & Ors., in terms whereof the appellant has been directed to make the payment of monthly maintenance @ Rs.4500/-, Rs.6000/- and Rs.4500/- in favour of respondents 1, 2 and 3 respectively, with effect from 19.05.2003, and setting off the monthly interim maintenance paid @ Rs.2000/- per month in favour of respondents 2 and 3.

2. The impugned judgment has been challenged through the medium of the instant appeal, inter alia on the following grounds:—

(a) That the trial court has not at all discussed the evidence produced by the appellant in support of the issues framed by the trial court, which rendered the impugned judgment and decree perverse and unsustainable under law;

(b) That the appellant had led the evidence wherein he proved that he has divorced respondent No.1 on 15.02.2005 in presence of two witnesses who also proved the said fact and the trial court has not discussed their evidence while deciding the issues framed by the trial court;

(c) That the trial court has by passing the impugned judgment tried to interfere with the ‘shariat’ and has failed to appreciate that the parties are governed by ‘shariat law’ so far as marriage, divorce etc. is concerned, particularly when the parties belong to ‘Hanafi’ sect;

(d) That the parties are living separately since 2003 and the plaintiff herself has set out the case that she is living separately from the appellant since 19.05.2003;

(e) That the appellant divorced the respondent No.1 on 15.02.2005 not only by pronouncing the ‘talaaq’ but also by reducing the same into writing, in presence of the witnesses who also were examined by the appellant as witnesses in the case;

(f) That the respondent No.1 has filed the suit on 19.03.2005, pleading therein that she has not accepted the divorce and that the divorcee is entitled to maintenance till she remarries;

(g) That the trial court has not considered the oral evidence of the appellant and the evidence of the witnesses in whose presence the ‘talaaq’ was pronounced and without recording any reason the trial court has brushed aside the said evidence which has caused great miscarriage of justice;

(h) That the trial court has simply held that the appellant has not duly divorced the respondent No.1, which amounts to interference in the religious matters of the parties, moreso, when the trial court has not recorded any reason in this behalf;

(i) That the trial court has not touched the evidence produced by the appellant while deciding the issues framed in the suit;

(j) That there is no evidence on record that the salary of the appellant is more than Rs.20,000/-, while as he had expressly stated that his salary is Rs.7000/- and that he has to maintain the other dependents also;

(k) That the trial court has fixed the maintenance amount at the rates mentioned in the impugned judgment from 2003 which is patently illegal;

(l) That the trial court has also not considered the entitlement of respondents 2 and 3 for maintenance as the respondent no.2 has attained the majority one year back and is able to earn his livelihood himself and cannot be said to be the dependent as on date, similarly respondent no.3 is about to cross 18 years within next few months and how long the appellant has to pay the maintenance to her is not mentioned which also renders the impugned judgment illegal.

3. The factual matrix of the case is:—

3.1. that the appellant and respondent No.1 entered into a marital wedlock on 18.09.1995 and out of which, respondent No.1 gave birth to respondents 2 and 3, who are of the age of 19 years and 17 years respectively; that the attitude and behavior of respondent No.1 with the appellant did not remain cordial and she did not beha