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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 17^TH DAY OF APRIL, 2021

BEFORE

THE HON’BLE MR.JUSTICE R. DEVDAS

WRIT PETITION NO.33878 OF 2015 (GM-RES)

BETWEEN

MR EZAJ SHARIFF

AGED ABOUT 51 YEARS,

S/O LATE ABDUL RASHEED SHARIF ,

USMAL MANZIL, NEAR MUSLIM JAMATH

SALMARA, KARKALA 574104

KARKALA TALUK, UDUPI DISTRICT

...PETITIONER

(BY SRI CHANDRANATH ARIGA K, ADVOCATE)

AND

SMT RUKSANA PARVEEN

AGED ABOUT 39 YEARS,

D/O AMEER AHAMAD,

AMIDHABI MANZIL,

NEAR TALUK OFFICE,

KARKALA 574104

KARKALA TALUK, UDUPI DISTRICT

…RESPONDENT

(BY SMT BHARMAL SHIRIN SHABBIRBHAI, AMICUS CURIAE)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &

227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE

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ORDER DTD.15.01.2014 IN M.C.NO.52/2006 PASSED BY THE

PRL.CIVIL JUDGE AND JMFC, KARKALA (ANNEXURE-F) AND ETC.

THIS

WRIT

PETITION

HAVING

BEEN

HEARD

AND

RESERVED

ON

13.01.2021

AND

COMING

ON

FOR

PRONOUNCEMENT OF ORDERS, THIS DAY, THIS COURT MADE

THE FOLLOWING:

ORDER

The petitioner-husband is aggrieved by the order passed

by the Prl. Sessions Judge, Udupi, in Crl.R.P.No.55/2014, while

upholding the orders passed in M.C.No.52/2006 by the Prl. Civil

Judge and JMFC, Karkala, directing the petitioner herein to pay

maintenance of Rs.3,000/- per month to the respondent-wife.

2. Some of the admitted facts are that the marriage

between

the

petitioner

and

the

respondent

herein

was

solemnized on 18.08.2004 as per the rights and customs of

Mohammadan Law. The respondent herein filed a petition under

Section 125 of Cr.P.C. seeking maintenance of Rs.5,000/- p.m.

from the petitioner. Objections were filed by the petitioner,

more specifically contending that during the course of the

proceedings, the petitioner has divorced the respondent and

therefore he is not required to pay maintenance.

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3. Learned Counsel for the petitioner submits that the

respondent was examined as PW-1. In her evidence, the

respondent has admitted that she received a letter of Talaq

dated 13.01.2009 from the petitioner herein and prior to that

there was an attempt of settlement of dispute before the Karkala

Jamath. This admission on the part of the respondent is said to

be found in her petition filed under Section 12 of the Protection

of Women from Domestic Violence Act, 2005 and the respondent

has stated in the application that there was an attempt for

settlement of dispute before the Jamath. It is contended that

the respondent has admitted that after the failure of conciliation

at the hands of the Jamath, the petitioner herein issued the

letter of Talaq declaring thrice that he has divorced the

respondent.

4. While referring to the case of Shamim Ara Vs. State

of U.P. And Another (2002) 7 SCC 518, it is submitted that

the Hon’ble Supreme Court has examined what constitutes a

valid Talaq.

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“310. Talak may be oral or in writing.—A talak may

be effected (1) orally (by spoken words) or (2) by a

written document called a talaknama (d).

(1) Oral talak.—No particular form of words is

prescribed for effecting a talak. If the words are

express (saheeh) or well understood as implying

divorce no proof of intention is required. If the words

are ambiguous (kinayat), the intention must be

proved (e). It is not necessary that the talak should

be pronounced in the presence of the wife or even

addressed to her (f). In a Calcutta case the husband

merely pronounced the word ‘talak’ before a family

council and this was held to be invalid as the wife

was not named (g). This case was cited with

approval by the Judicial Committee in a case where

the talak was valid though pronounced in the wife's

absence, as the wife was named (h). The Madras

High Court has also held that the words should refer

to the wife (i). The talak pronounced in the absence

of the wife takes effect though not communicated to

her, but for purposes of dower it is not necessary

that it should come t