Allahabad High Court
Smt. Baby Shabnam Bano vs Shadab Alam on 5 August, 2010
-1- Court No. - 7 Case :- FIRST APPEAL No. - 93 of 2009 Petitioner :- Smt. Baby Shabnam Bano Respondent :- Shadab Alam Petitioner Counsel :- Abdul Samad Respondent Counsel : - Sri R. B. Singh Hon'ble Dr. Satish Chandra,J.
This first appeal is filed under Section 96 of Code of Civil Procedure against the judgment dated 31.07.2009 and decree dated 17.08.2009 passed by Additional District Judge, Raibareli in Original Suit No. 251 of 2003 (Shadab Alam v. Smt. Baby Shabnam Bano).
Brief facts of the case are that both the parties are the husband and wife who were married on 29.04.2002 according to Muslim Law. After about one year of marriage, the appellant has gone to her parents' residence and she has not returned. So the opposite party has filed a Suit for Restitution of Conjugal Rights, which was decreed vide order dated 17.08.2009. Being, aggrieved, the wife - appellant has filed the present appeal.
With this background, Sri Abdul Samad learned counsel for the appellant submits that the opposite party is not treating the appellant properly. He further submits that before filing the Suit, the appellant has filed a criminal case under Section 498-A, 504 IPC and 3/4 Dowry Prohibition Act against the opposite party. He also submits that the opposite party has sent the Talaqnama through registered post. He further submits that the opposite party and his family members are treating the appellant like a cattle and beating her mercilessly, therefore, she is not ready to live with the opposite party. He also submits that the lower court has already discussed this issue at page no. 17 of the judgment that the appellant is not ready at all to live with her husband anywhere even in the house of her parents. Lastly, he made a request that the impugned orders may kindly be set aside. -2-
On the other hand, Sri R. B. Singh, learned counsel for the opposite party-husband, submits that the appellant is still her legally wedded wife as per the muslim rites as he has not given any divorce till date. He is treating the appellant as wife and performing all the responsibilities being a good husband. He also submits that the husband has gone to gulf countries to earn the money. So, he is in a position to maintain her wife (appellant) properly. It is the wife, who has deserted her husband without any reason. He further submits that he is ready to live with his wife at her terms and conditions. He supported the impugned order dated 31.07.2009 passed by the Additional District Judge, Raebareli.
I have heard both the parties at length and gone through the material available on record.
On the last date of hearing, both the parties were called in the Chamber for amicable settlement of the dispute but the appellant submits that she is not ready to go with her husband in any case as her husband and his family members are brutally beating her. She has the danger of her life. She also submits that she left the matrimonial home for this reason only and filed a case under Section 498-A, 504 IPC; and 3/4 Dowry Prohibition Act, which are still pending. She further submits that her family members are not in a position to give any dowry. She also submits that it would be better to commit suicide instead of living with the opposite party.
Today, again one chance was given to both the parties to reconcile the matter but the situation remains the same.
On merit, after hearing both the parties without any case law and on perusal of record, it appears that in the instant case, the wife (appellant) is not ready to live with her husband on account of cruelty committed by her husband as well as by his family members. When the appellant is not ready to live with her husband, then nobody can force her to live with her husband -3- specially when she has danger of her life as mentioned above. She further submits that it is impossible to live with the opposite party even in her parents house.
From the record, it appears that in the impugned order, the court below has discussed the Talaq-nama. It is alleged by the appellant that the opposite party sent the Talaq-nama to her but the court below has taken this Talaq-nama as void document after examining the lonely Mofti who has come as PW-2 of the opposite party and stated that Fatwa was brought to him by Modh. Razuddin who is the maternal uncle of the appellant but it is surprising that Mofti has neither produced any record nor produced so called fatwa in question before the Court. Even then, the lower court has treated the divorce as a void document, which is not desirable as per the Muslim rites.
It may be mentioned that in Muslim Law, there are three modes of Talaq namely Talak Ahsan, Talak Hasan; and Talak-I-Badai. Talak "Ahsan" consists of a single pronouncement of divorce (Talak), made during a tuhr, period between two menstrual course, followed by abstinence from sexual intercourse for the period of Iddat. Talak "Hasan" consists of three pronouncement made during successive tuhrs without sexual intercourse during any of three tuhrs. The Talak becomes irrevocable on pronouncement of divorce during all the three tuhrs. In other words, before the third pronouncement, Talak Hasan is revocable by conduct of the parties. However, once the third pronouncement of divorce is made without sexual intercourse during all the three tuhrs, the divorce becomes irrevocable and in that case after Iddat, the former husband and wife cannot enter into a Nikah unless the wife undergoes the process of Halala. The third mode of Talak namely "Talak-i-badai" consists of two modes. Firstly, it consists of three pronouncements made during a single tuhr. For instance, -4- three pronouncement in one go (Triple Talak) either in one sentence e.g. "I divorce you three times or in separate sentences e.g. Talak, Talak, Talak. The second mode of Talak-i-badai consists of a single pronouncement made during a tuhr clearly indicating an intention irrevocable to dissolve the marriage. For instance, "I divorce you irrevocably."
It may also be mentioned that Mubara' at means mutual release. A Mubara' at divorce like khula, is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife, and the she desires a separation, the transaction is called Khula. When the aversion is mutual and both the sides desires a separation, the transaction is called Mubara' at. The offer in a Mubara' at divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates a Talak-i- bain as in case of Khula. As a Talak, so in khula and mubaraat the wife is bound to observe the iddat. Khula is redemption of the contract of marriage while Mubara' at is a mutual release from the marriage tie. In Khula the offer is made by the wife and its acceptance is made by the husband, whereas in Mubara' at any of the two may make an offer and other accepts it. In Khula, a consideration passes from wife to husband, whereas in Mubara' at the question of consideration does not arise.
In view of the above, the lower court failed to consider the sanctity of Talaq-nama in question without examining the record maintained by Mofti.
Moreover, a criminal case is pending and another suit for dissolution of marriage is also pending before the Civil Judge (Senior Division), Raiberely. Unless the above mentioned cases will be decided, the appellant cannot be forced to perform her matrimonial obligation with the opposite party specially when she has danger to her life.
Hence, I set aside the impugned order dated 31.07.2009 and decree -5- order dated 17.08.2009 passed by Additional District Judge, Court No.2 Raebarely in Original Suit no.251 of 2003.
The appeal is allowed. The interim order/execution order, if any, stands vacated. No cost.
Order Date :- 5.8.2010 VNP/-