Jammu & Kashmir High Court - Srinagar Bench
Muzafffar Ahmad Thoker vs Shaheena Akhter And Another on 6 March, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
Serial No. 01
Suppl. list
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No. 62/2016
Date of Order: 06.03.2018
Muzaffar Ahmad Thoker Vs. Shaheena Akhter & Another
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr Riyaz Ahmad Gadda, Advocate
For respondent(s): Mr Mubashir Gatoo, Advocate
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. The facts of the instant petition chiseled in a nutshell are that the respondents filed a petition under Section 488 Cr. PC before the Court of learned Chief Judicial Magistrate, Shopian, in which interim maintenance was directed to be awarded in their favour. Aggrieved by the said order, the petitioner assailed the same in a revision before the Court of the learned District and Sessions Judge, Shopian, chiefly on the ground that the respondent No. 1, a divorcee cannot file and maintain a petition under Section 488 Cr. PC. However, during the pendency of the revision petition both the parties entered into an amicable settlement in which it was agreed that the petitioner herein will deposit an amount of Rs 20000/- in the Court which in turn shall be paid to the wife and an amount of Rs. 10,000/- will be paid to her within a period of one month from the date of the order. The compromise also stipulated that the parties shall remarry and they will live as husband and wife in a separate dwelling. The learned Sessions Judge recorded the statements of the parties, sent down the file OWP No. 62/2016 Page 1 of 6 to the Court of the learned Chief Judicial Magistrate, who disposed of the petition Under section 488 Cr. PC as settled. The respondent wife thereafter filed an application before the Court of learned District and Sessions Judge seeking the execution of the aforesaid compromise on the ground that the petitioner did not act upon the compromise and denied to remarry the petitioner. The petitioner, however, paid the amount settled in the compromise to the learned counsel representing her. The respondent filed another application before the Court of the learned District and Sessions Judge, with the prayer that the compromise be set aside. The learned District and Sessions Judge, vide his order dated 10.12.2015, set aside the compromise and revived the revision petition filed by the petitioner. Dissatisfied with the said order, passed by the learned District and Sessions Judge, Shopian, in file No. 347/M, the petitioner has challenged the same in the instant writ petition and has prayed that the said order, does not meet the ends of justice and is, therefore, liable to be set aside.
2. The respondent-wife has resisted the petition of the petitioner, inter alia, on the grounds that since the petitioner failed to pay the amount of maintenance, directed to be paid to her under the compromise and refused to execute afresh Nikah Nama under the plea that she is already divorced and a triple talaq has been pronounced on her, therefore, it was incumbent on her part to perform "Halala", i.e. to marry some other person before she could remarry him. The omissions and commissions on the part of the petitioner after the execution of the compromise explain that the petitioner never intended to act upon the terms and conditions incorporated in the compromise but to stall the payment of maintenance.
3. It is further pleaded that from 18.5.2013 till 17th August, 2017, the petitioner has paid an amount of Rs. 12,000/- only as maintenance in favour of the respondent No. 2, who is a student of class Ist. This attitude and behavior of the petitioner speaks volumes about the falsity of the instant petition. After the execution of the compromise dated 24.04.2015, the petitioner failed to deposit OWP No. 62/2016 Page 2 of 6 the agreed amount before the Court and thereafter denied to execute a fresh Nikah Nama on the ground that the petitioner has pronounced a triple Talak upon her on 24.07.2013 and under the Shariah Law, a fresh Nikah cannot be performed without "Halala".
4. Heard and considered.
5. In almost an identical petition bearing No. 80/2016 filed under Section 561_A Cr. PC along with the connected MP No. 01/2016, titled "Mohammad Yaseen Bhat v. Aisha Yaseen & Another", this Court in the judgment dated 30th November, 2017, incidentally authored by me, held as follows:
"06. A daughter has a statutory right to be maintained by the father irrespective of the fact whether, or not, the mother has a right to be maintained. The father has to discharge his legal duty and moral obligation of maintaining the child. True it is that the wife also cannot be left in a lurch till such time that the application is finally heard and determined. Grant of interim maintenance is a relief against destitution. The Supreme Court in the case of "Savitri v. Govind Singh", reported in "AIR 1986 SC 984", while evolving this concept, ordained that even an application supported by an affidavit will be sufficient to seek such a relief. The aim and object of the grant of interim maintenance is to prevent vagrancy and to provide the wife and child a breathing spur to live. The petitioner being an able bodied person receiving a handsome salary cannot evade his responsibility to maintain his child and the wife. However, to ward off his liability, the petitioner, in this case, has taken refuge under the plea that his wife is not entitled to any maintenance because he has already divorced her and she has acknowledged its receipt. The Deed of divorce, which forms a part of the petition of the petitioner, is a sequel to the fact that the petitioner has pronounced a 'Tripple Talaaq' on his wife, i.e. the Respondent No.2 in the petition. This practice has been declared to be void by a majority view of the Hon'ble Judges of the Apex Court of the country in the case of "Shayara Bano & Ors v. Union of India & Ors." reported in "2017 (4) JKLT 1 (SC)", wherein it has been held as under:
"Per Hon'ble Mr Justice Kurian Joseph (Majority view):
24. To freely profess, practice and propagate religion of one's choice is a Fundamental Right guaranteed under the Indian Constitution. That is subject only to the following- (1) public order, (2) health, (3) morality and (4) other provisions of Part III dealing with Fundamental Rights. Under Article 25 (2) of the Constitution of India, the State is also granted power to make law in two contingencies notwithstanding the freedom granted under Article 25(1). Article 25 (2) states that "nothing in this Article shall OWP No. 62/2016 Page 3 of 6 affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus." Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible.
Hence, there cannot be any Constitutional protection to such a practice and thus, my disagreement with the learned Chief Justice for the constitutional protection given to triple talaq. I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right can be injuncted.
25. When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that a reconciliation between the same is possible, but the process of harmonizing different interests is within the powers of the legislature. Of course, this power has to be exercised within the constitutional parameters without curbing the religious freedom guaranteed under the Constitution of India. However, it is not for the Courts to direct for any legislation. 299
26. Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well."
"Per Hon'ble Mr Justice R.F. Nariman and Hon'ble Mr. Justice Uday Umesh Lalit (Majority view):
56. Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq. We have noticed how in Fyzee's book (supra), the Hanafi school of Shariat law, which itself recognizes this form of Talaq, specifically states that though lawful it is sinful in that it incurs the wrath of God. Indeed, in Shamim Ara v. State of U.P., (2002) 7 SCC 518, this Court after referring to a number of authorities including certain recent High Court judgments held as under:
"13...The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters -- one from the wife's OWP No. 62/2016 Page 4 of 6 family and the other from the husband's; if the attempts fail, talaq may be effected (para 13). In Rukia Khatun case [(1981) 1 Gau LR 375] the Division Bench stated that the correct law of talaq, as ordained by the 392 Holy Quran, is: (i) that "talaq" must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, "talaq" may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay views which, in their opinion, did not lay down the correct law.
14. We are in respectful agreement with the abovesaid observations made by the learned Judges of the High Courts."
57. 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 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.
Applying the ratio of the law laid down above to the facts of the instant case, an arbitrary, instant or irrevocable talaq as ordained by the Holy Quran is not a valid one. It must be for a reasonable cause anteceded by attempts to seek reconciliation between the husband and the wife by a set of two mediators-- one each from both the families. If in such reconciliation the attempt to harmonize the relationship between the two spouses fails, talaq may be operated. Any attempt to save the marital tie in the case of triple talaq, which operates immediately, is out of question and cannot ever take place. Not only this, it is not necessary that the cause for the pronouncement of such a talaq should be a reasonable one. This form of talaq being arbitrary, in the sense that the marital tie can be broken in an erratic, impulsive, freakish and a mercurial manner, has been held to be violative of Article 14 of the Constitution of India, and, as such, void in its effect. Therefore, the triple talaq herein this petition is inconsequential and shall not produce any change in the OWP No. 62/2016 Page 5 of 6 relationship of the petitioner and the respondent No.1. Their relationship of a husband and the wife does and will exist and subsist. The form of talaq to which recourse has been had by the petitioner will not repudiate the marriage between the petitioner and the respondent No.1".
6. Taking into consideration the dictum of law cited above, the triple talaq is immaterial and trifling. It shall not result in any change in the relationship of the petitioner and the respondent No. 1. The relation of a husband and wife between them does and will subsist. The form of talaq under the shade of which, the parties have taken recourse will not annul the marriage between them, as a corollary to which, the order dated 10.12.2015, passed in the revision petition by the learned Sessions Judge, Shopian, is set aside. The learned Sessions Judge, shall hear and determine the revision preferred before him by the petitioner herein against the order of interim maintenance awarded in favour of the respondents herein by the learned Chief Judicial Magistrate, Shopian, and the same including the petition for the grant of maintenance are revived and restored to their original numbers.
7. The record shall be sent back to the learned Sessions Judge, Shopian, along with a copy of this order.
(M. K. Hanjura) Judge Srinagar 06.03.2018 "Manzoor"
OWP No. 62/2016 Page 6 of 6