Delhi District Court
Saeed Khan @ Pami vs Noor Bano on 7 March, 2013
IN THE COURT OF SH. NEERAJ GAUR,
ACJ/CCJ/ARC, SHAHDARA, KARKARDOOMA COURTS, DELHI
Civil Suit No. 401/2011
Unique Identification No. 02402C0383652011
Saeed Khan @ Pami
S/o Saleem Khan
R/o D21/3, Gali No. 3, Shastri Park,
Delhi 53
...........Plaintiff
Versus
Noor Bano
D/o Chhote Khan
R/o H.No. 27/10, Mohalla Fakir Badshah,
Kawtio Ka Khurra, Ramganj,
Jaipur (Rajasthan)
...........Defendant
SUIT FOR DECLARATION AND PERMANENT INJUNCTION
1. Date of institution : 16.12.2011
2. Date of reserve for orders : 02.03.2013
3. Date of order : 07/03/2013
4. Final order : Suit dismissed
CS No. 401/11 Saeed Khan Vs. Noor Bano 1/6
EXPARTE UDGMENT
1. This is a suit for declaration and permanent injunction. The declaration sought is to the effect that the triple Talaq dated 22.07.11 pronounced by the plaintiff against the defendant be declared as valid and binding. The restraint sought is to the effect that the defendant should not claim as legally wedded wife of the plaintiff.
2. The defendant, despite service of summons, failed to appear and she was proceeded exparte vide order dated 18.01.12.
3. The plaintiff, in his evidence deposed that his marriage with the defendant was solemnized according to Muslim rites on 27.01.06 at Jaipur. The marriage was consummated. In the month of January, 2007, the defendant went to her paternal house when she was 8 months pregnant and a male child was born in February, 2007. When defendant returned to the matrimonial home in September, 2007, the plaintiff asked about his new born baby but defendant told that the new born child subsequently died. The plaintiff was doubtful regarding the death of the child and he made a complaint dated 24.09.07 to PS New Seelampur.
4. Plaintiff also deposed that the relationship became strained and in November, 2007, the defendant again left the matrimonial home on a false pretext. When defendant did not return then the plaintiff went to CS No. 401/11 Saeed Khan Vs. Noor Bano 2/6 the paternal home of the defendant. His requests to send back the defendant were turned down. The brothers and relatives of the defendant started threatening the plaintiff to give a divorce to the defendant. Under compelling circumstances, another complaint dated 10.05.08 was made to PS Seelampur.
5. Plaintiff deposed that finding no other option, the plaintiff divorced the defendant orally on 22.07.08 and in writing by sending a registered post and UPC.
6. He also deposed that despite pronouncement of the Talaq, duly served upon the defendant, the defendant is misrepresenting herself to his legally wedded wife. In November, 2011, the plaintiff received a notice with respect to a petition under the Protection of Women from Domestic Violence Act, 2005 which was filed in Jaipur.
7. During his evidence, the following documents were marked: copy of complaint dated 24.09.07 Ex.PW1/1, original UPC receipt dated 24.09.07 Ex.PW1/2, copy of complaint dated 10.03.08 Ex.PW1/3, original UPC receipt dated 10.03.08 Ex.PW1/4, copy of complaint dated 10.05.08 Ex.PW1/5, original UPC receipt Ex.PW1/6, copy of Talaqnama dated 22.07.08 Ex.PW1/7, original RAD receipt and UPC receipt dated 23.07.08 Ex.PW1/8 and Ex.PW1/9.
8. No other plaintiff's evidence was led by the plaintiff and closed his evidence vide his statement dated 05.01.2013.
CS No. 401/11 Saeed Khan Vs. Noor Bano 3/6
9. A Muslim marriage is essentially a civil contract. The Talaq is a mode of termination of this social contract, however, there are certain conditions which must be fulfilled for holding the Talaq as valid. In this regard, the pronouncement of Hon'ble Delhi High Court in case titled as "Smt. Riaz Fatima and Anr. Vs. Mohd. Sarif" cited as I (2007) DMC 26 is providing a valuable guidance. The High Court laid down the following pre requisites for a valid Talaq:
1. Divorce must be for a reasonable cause that is mandatory at Holy Quran.
2. Husband has to prove that there was proclamation of Talaq thrice in the presence of witnesses or in a letter. Till it is proved, Talaq is not valid.
3. There has to be proof of payment of Mehr amount or observance of period of Iddat.
4. The husband has also to prove that there was attempt for settlement/conciliation prior to the divorce.
10.In para 13 of the judgment, the High Court further observed that the correct law of Talaq, as ordained by the Holy Quran additionally requires that the attempt at reconciliation must be made by two arbiters - one from the wife's family and other from the husband's.
11. The aforementioned ratio makes the law regarding the triple Talaq very clear and unambiguous. Now we can scrutinize the evidence led CS No. 401/11 Saeed Khan Vs. Noor Bano 4/6 by the plaintiff. The plaintiff, through his own testimony has deposed the allegations made in his plaint. However, his testimony is silent with respect to any sincere effort being made for reconciliation prior to the alleged pronouncement of Talaq. Not even single arbiter has been deposed to have mediated the matrimonial dispute. The impugned Talaqnama Ex.PW1/7 does not stipulate regarding the payment of mehr. The plaintiff did not categorically depose that he never cohabitated with the defendant after the pronouncement of Talaq or that the defendant observed the Iddat period.
12.It is also noteworthy that the Talaqnama was sent through UPC which is a very weak mode of service. No witness to the alleged Talaqunama entered in the witness box.
CONCLUSION
13.For the reasons stated hereinabove, I have come to the conclusion that the plaintiff could not establish the pre requisites of a valid Talaq. In these circumstances, no decree of declaration and consequential relief of permanent injunction can be passed or granted. RELIEF In view of my conclusion drawn hereinabove, I hold that the plaintiff is not entitled to the reliefs claimed. The suit is accordingly dismissed.
CS No. 401/11 Saeed Khan Vs. Noor Bano 5/6
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in the open Court
on 07.03.2013
(NEERAJ GAUR)
ACJ/CCJ/ARC/SHAHDARA
KKD COURTS/DELHI
CS No. 401/11 Saeed Khan Vs. Noor Bano 6/6