A valid talaq requires adherence to recognized procedural forms under Muslim Personal Law, necessitating proof and proper pleadings.

JUDGMENT

P.G.Ajithkumar, J.

The appellant assails the judgment in O.P.No.1268 of 2020 on the files of the Family Court, Nedumangad in this appeal filed under Section 19 (1) of the Family Courts Act, 1984 . The appellant filed O.P.No.1268 of 2020 seeking a declaration that the Talaq he pronounced to dissolve his marriage with the respondent was valid. The Family Court dismissed the original petition as per the judgment dated 31.03.2022.

2. The respondent entered appearance through her learned counsel. Delay of 18 days in filing the Mat.Appeal was condoned as per the order dated 07.12.2022.

3. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent, who submitted that the respondent has no objection in allowing the appeal.

4. The appellant married the respondent on 05.06.1967 as per the Muslim religious rites. Following marital discord, the appellant divorced the respondent. Talaq was pronounced on 05.10.1971. Talaq was properly communicated to the Jama-ath Committees of both parties. The appellant remarried on 08.08.1972. He was working with Indian Military Services. The Military Authorities insisting on production of an order of the court regarding dissolution of his marriage with the respondent when he applied to allow family pension to his present wife.

5. The respondent did not appear before the Family Court and object the petition. She remained exparte. The Family Court recorded the oral testimony of the appellant and received in evidence Exts.A1 and A2. After considering the evidence, the Family Court dismissed the original petition holding as follows:

“7. The case of the petitioner is that he pronounced talaq on 05.10.1971. But it is not stated as to the mode of talaq made by him. As per para 311 of the Mulla's principle of Mohammedan law there are three types of talaqs that is Talak ahsan, Talak hasan and Talak-ul- biddat or talak-i-badai. Now the first two forms of talaqs are recognised and there is no dispute as to the validity of the first two forms of talaqs. Now the triple talaq is declared as illegal and as such it is for the party who claimed divorce on the ground of talaq to prove and plead that it was not triple talaq. Now there is no specific pleading or documents as to the mode of talaq. Further the document produced by the petitioner Ext.A2 divorce certificate also did not disclose as to the mode of divorce. The petitioner is not entitled to get declaration without establishing that he has divorced with respondent by pronouncing talaq recognised under law. So the petitioner fails to establish a case for getting declaration as sought for. The point is found against the Petitioner.

In the result, the Original Petition is dismissed.”

6. Ext.A2 is the divorce certificate. In Ext.A2 or in the oral testimony of PW1, it is not explained how had the procedure of Talaq gone through. The law laid down in Shayara Bano v. Union of India [ (2017) 9 SCC 1 ] is not that Talaq pronounced by a husband becomes illegal in all situations. If the pre-requisites for a Talaq already underwent, a Talaq will be valid. This Court inJaffer Sadiq E.A. And another v. Marwa [ 2022 (5) KHC 50 ] held,- “24. What was declared illegal and void by the Apex Court inShayara Bano v. Union of India [(2017)9 SCC 1] and by Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 and made as an offence by Section 4 thereof, was the pronouncement of talaq-e-biddat or any other similar form of talaq resulting in instant and irrevocable divorce. The peculiar features of this form of talaq are its instantaneousness and irrevocability. On the other, both ahsan form and hasan form, contemplate a period, immediately after the pronouncement of talaq, whether such pronouncement is only once, or thrice over three successive lunar months, when the husband can revoke the talaq. The declaration of talaq-e-sunnat, either by ahsan form or by hasan form, was neither declared void or unconstitutional by th