Indian Kanoon - Search engine for Indian Law

Madhya Pradesh High Court

Smt. Kahkashan Anjum vs Union Of India on 9 August, 2018

Equivalent citations: AIRONLINE 2018 MP 856

      HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                        JABALPUR

Case No.                             W.P. No.7894/2016
Parties Name                                   Smt. Kahkashan Anjum.
                                                          vs.
                                               Union of India & others.
Date of Judgment                     09/08/2018
Bench Constituted                    Single Bench
Order delivered by                   Justice Sujoy Paul
Whether approved for reporting Yes/No.
Name of counsels for parties         Petitioner: Mr. Mukhtar Ahmed, Advocate.

                                     Respondents No.1 to 7: Mr. Vikram Singh,

Advocate.

Respondent No.8: Mr. Anil Kumar Sachdev, Advocate.

Law laid down                                     -
Significant paragraph numbers                     -

                                    (Order)
                                   09.08.2018

This petition filed under Article 226 of the Constitution of India takes exception to the order dated 30.03.2016, whereby the respondents have rejected the claim of the petitioner for grant of maintenance allowance.

(2) The admitted facts between the parties are that petitioner is legally wedded wife of the respondent No.8. The petitioner preferred an application for grant of maintenance on the strength of an army order AO:02/2001 (Annexure-P/12). The said application of petitioner was rejected by order dated 30.03.2016. The operative reason for rejection of said claim was that petitioner has already been divorced by respondent No.8 in terms of 'Talaqnama' dated 01.08.2012 and, therefore, she is not entitled to get maintenance allowance.

(3) Mr. Ahmed, learned counsel for the petitioner criticized this order by contending that admittedly the respondent No.8 filed a suit before the Family Court seeking declaration that marriage is dissolved by 'Talaqnama' dated 01.08.2012. Mr. Ahmed submits that in the said case, the present petitioner filed

-:- 2 -:-

an application under Order 7 Rule 11 CPC and contended that in the light of recent judgment of Supreme Court reported in 2017 (9) SCC 2, [Shayara Bano vs. Union of India & others] no such declaration can be granted and, therefore, suit is liable to be dismissed. The Court below in CS No.45-A/2014 passed a detailed order dated 19.01.2018 and allowed the said application filed under Order 7 Rule 11 CPC. In the result, suit was dismissed. The respondent No.8 unsuccessfully challenged the said order of Family court before the Division Bench of this Court in First Appeal No.322/2018 [Mirza Faheem Beg vs. Kahkasha Anjum], which was dismissed by judgment dated 09.05.2018. By taking this Court to the order of Court below dated 19.01.2018 and judgment of Division Bench of this Court dated 09.05.2018, Mr. Ahmed submits that no 'Talaqnama' exists in the eye of law on the strength of which claim of petitioner for maintenance allowance can be disallowed. In addition, it is argued that a plain reading of army order (Annexure-P/12) shows that this provision is in addition to beneficiary provision for muslim women which are ingrained in Section 24 of the Hindu Marriage Act and Section 125 of Code of Criminal Procedure. If conditions of army order are satisfied, the claimant is entitled to get the maintenance allowance. In view of subsequent event, it is argued that the basic reason for rejection mentioned in the impugned order does not survive and, therefore, the said order may be set aside.

(4) Mr. Vikram Singh, learned counsel for the employer vehemently supported the impugned order dated 30.03.2016 and contended that judgment of Shayara Bano (supra) is prospective in nature. On the strength of said judgment, 'Talaqnama' cannot be said to be null and void. The employer was not a party in Mirza Fahim Beg (Supra). Hence, the said judgment has no binding effect on the employer.

(5) Mr. Anil Kumar Sachdev, learned counsel for the respondent No.8 submits that he has filed return yesterday. Alongwith the return, report of Defence Minister's Committee of Experts is filed and by taking this Court to the said report (At Page No.22), it is submitted that in the light of this report, petitioner cannot claim the benefit of army order (Annexure-P/12). Mr. Sachdev fairly submits that although he has not filed any decision taken on this report by the Defence Ministry, he came to know that some orders have been passed.

-:- 3 -:-

(6) No other point has been pressed by the learned counsel for the parties.

(7) I have heard the parties at length and perused the record.

(8) In the impugned order, the singular ground for rejecting the claim for maintenance allowance is alleged 'Talaqnama'/divorce given by the respondent No.8. When petitioner filed the application under Order 7 Rule 11 CPC, the Court below considered the judgment of Supreme Court in the case of Shayara Bano (supra) and opined that instant "tripal talaq" is not valid and muslim's marriage cannot be dissolved by pronouncing of "tripal talaq". The application filed under Order 7 Rule 11 CPC was also allowed for the said reason.

(9) A microscopic reading of the judgment of Division Bench of this Court passed in Mirza Fahim Beg (supra) shows that similar arguments were advanced before the Division Bench that the said judgment is prospective in nature. This Court opined as under:

"5. The trial Court allowed the application filed by the respondent under Order 7 Rule 11 of CPC and held that the appellant cannot claim a decree of declaration of divorce on the ground that he had divorced the respondent by custom of triple talaq because the aforesaid fact has been declared by the Hon'ble Supreme Court, as unconstitutional.

6. Learned counsel for the appellant has contended that the order passed by the trial Court allowing the application of the respondent filed under Order 7 Rule 11 of CPC is contrary to law. The judgment pronounced by the Hon'ble Apex Court has not been made retrospective in operation. The appellant granted triple talaq to the respondent before passing the judgment by the Hon'ble Apex Court. Hence, he has a right to get a declaration from the concerned Court.

7. We are not inclined to accept the arguments advanced by the learned counsel for the appellant. The appellant sought a decree of declaration that the marriage solemnized between the appellant and the respondent be dissolved and it be declared that the appellant and respondent are no more husband and wife, on the basis of Tehrir in which he pleaded that he had given triple talaq to the respondent. The Talaqnama is Ex. P-8 dated 01.08.2012. It is mentioned in the aforesaid Talaqnama that the appellant had given divorce to the respondent by saying divorce divorce divorce (three times) and amount of Mehar has also been given to the appellant in view of 5 demand draft. 8. It is a fact that the Talaqnama is of dated 01.08.2012, however, the appellant wants a decree from the Civil Court on the basis of aforesaid Talaqnama on declaration that the appellant and respondent are no more, as husband and wife. The Hon'ble Supreme Court in the case of Shayara Bano Vs. Union of India and others reported in (2017) 9 SCC 02 has held that the form of talaq saying three times-talaq talaq talaq is arbitrary and this form of talaq is also violative of

-:- 4 -:-

Fundamental Rights contained in Article 14 of the Constitution of India. The Hon'ble Apex Court has held as under:-

''104. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of 6 the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.''

9. The appellant sought a declaration from the Court on the basis of Tehrir.

The Hon'ble Supreme Court has declared the triple talaq unlawful and arbitrary and violative of Article 14 of the Constitution of India. In such circumstances, in our opinion trial Court has rightly held that a decree of declaration in favour of the appellant could not be granted in view of the judgment pronounced by the Hon'ble Supreme Court. In our opinion there is no question of retrospective application of the judgment of the Hon'ble Supreme Court because the appellant sought a declaration from the Court on the basis of an Act which was declared illegal by the Hon'ble Apex Court. Hence, the Court has rightly refused to grant a decree of declaration in favour of the appellant in view of the judgment passed by the Hon'ble Supreme Court. In such circumstances, in our opinion, the trial Court has rightly allowed the application filed by the respondent under Order 7 rule 11 of the CPC."

[Emphasis Supplied] (10) The aforesaid question of applicability of judgment of Shayara Bano (supra) has attained finality between the parties inter se as per the judgment passed by this Court in Mirza Fahim Beg (supra). Thus, in this round of litigation between the same parties, I am unable to hold that 'Talaqnama' still subsists or marriage can be treated to be dissolved because of said 'Talaqnama'. Mr. Vikram Singh, learned counsel for the employer argued that employer was not a party in Mirza Fahim Beg (supra). I do not see any merit in the said contention. If in a litigation between husband and wife, the Court below and this

-:- 5 -:-

Court held that dissolution of marriage on the basis of oral "tripal talaq" is not permissible, employer is bound by that and it cannot take a different view by contending that employer was not heard in the said case. In a case of dissolution of marriage, even otherwise, employer is not a necessary party. Thus, this contention and objection of Mr. Vikram Singh is devoid of substance.

(11) The aforesaid analysis shows that 'Talaqnama' could not find favour before the Family Court and relief of dissolution of marriage based on that 'Talaqnama' was not granted. Indeed, the principle of "nip in the bud" was applied by the Court below and the suit itself was dismissed while allowing the application under Order 7 Rule 11 CPC. Thus, the singular reason for rejecting the claim of the petitioner does not survive in the eye of law.

(12) I will be failing in my duty if I wouldn't consider the argument of learned counsel for the respondent No.8. He placed heavy reliance on the report filed with the return. A plain reading of said report shows that it is a recommendation which was placed before the competent authority. There is no material on record to show that the said recommendation was accepted and separate orders were passed because of which the army order (Annexure-P/12) is either vanished in thin air or modified or nullified. Pertinently, neither employer nor respondent No.8 has filed any other order to show that army order (Annexure-P/12) has lost its complete shine. Resultantly, I find no reason to deprive the petitioner from the right of consideration in the light of army order (Annexure-P/12). Accordingly, order dated 30.03.2016 is set aside. The employer is directed to consider the claim of the petitioner for grant of maintenance allowance from the date it was originally claimed and take a final decision in accordance with law within 45 days from the date of production of certified copy of this order. If petitioner is found eligible/entitled for grant of said allowance, requisite payments be made to her within aforesaid time. If employer decide it otherwise, a reasoned order be passed and communicated to the petitioner.

(13) Petition is allowed to the extent indicated above.

(Sujoy Paul) Judge s@if Digitally signed by SAIFAN KHAN Date: 2018.08.10 17:00:41 +05'30'