Madras High Court
S.W.Aabith Basha vs Zeenathunnisa on 29 November, 2021
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A.No.908 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :29.11.2021
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.908 of 2021
S.W.Aabith Basha ...Appellant
Vs.
Zeenathunnisa ...Respondent
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 30.09.2019 made in
A.S.No.17 of 2019, on the file of the learned Subordinate Judge, Gudiyattam,
in confirming the judgment and decree dated 27.02.2019 in O.S.No.21 of
2018 on the file of the learned District Munsif, Gudiyattam, by allowing the
present Second Appeal.
For Appellant : Mr.A.Gouthaman
For Respondent : Mr.M.Marudhachalam
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S.A.No.908 of 2021
JUDGMENT
This Second Appeal is directed against the judgment of the learned Subordinate Judge, Gudiyattam, in A.S.No.17 of 2019 confirming the judgment of the learned District Munsif, Gudiyattam, in O.S.No.21 of 2018.
2. The appellant/plaintiff filed the suit for the relief of the declaration that marriage between him and the respondent took place on 21.08.2016, to be declared as null and void on the pronouncement of muthalaq by the appellant on 08.11.2018 and for costs.
3. The case of the appellant, as seen from the plaint in brief, is as follows:
The marriage between the appellant and respondent had taken place on 21.08.2016 in the presence of family members in Masjid-E-Jadeed.
After marriage, appellant and respondent were living in the appellant's house in R.Kollapalli Village. Appellant spent 2.15lakhs for marriage and also gifted five sovereign gold jewels, four gram mahar and an anklet. One week after marriage, respondent demanded the appellant to go for a separate living 2/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021 and started insisting on separate living everyday, else she wanted appellant to come to her parent's house. Appellant refused to accept to go for a separate living. Therefore, respondent started harassing the appellant and neglected to maintain appellant and his parents. She has not maintained hygiene in the house and she avoided taking bath for months together. After misplacing her gold ring, she made allegations against appellant and his family members that they had stolen the ring. She also threatened that she would give police complaint against appellant and his family members. Without informing appellant, she left the matrimonial home on 08.11.2017. She told that she would come to live with the appellant, only if he sets up separate family.
Appellant made effort to unite with her through elders and his parents.
Respondent informed the panchayatars on 04.02.2019 that she would not join him unless he sets up a separate family. Therefore, appellant paid the mahar amount to the respondent in the presence of elders and pronounced muthalaq on 04.02.2017. In such circumstances, the suit was filed for the reliefs as aforesaid.3/18
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4. Respondent filed written statement denying the allegations made in the plaint. The averment that appellant provided jeweleries to respondent is denied. It is claimed that only the respondent provided jewels and the allegations like respondent is harassing the appellant and his family members, neglected to maintain them and not keeping herself in hygienic condition are all denied. It is claimed that the suit is filed for the relief on the basis of false allegations. It is denied that respondent left her matrimonial home on 08.11.2017. There is no specific mention about the panchayat said to have been taken place on 04.02.2019 and on whose presence panchayat had taken place. It is claimed that muthalaq was pronounced on 04.02.2019, but claimed that mahar amount was paid to the respondent on 04.02.2017. It is contradictory pleading. In case of matrimonial dispute, petition should be submitted to the Jamad and an enquiry would be conducted. No such enquiry was conducted. This suit is filed without any basis and only with a view to obtain divorce from the respondent. Appellant has not established that muthalaq was pronounced in accordance with law. Therefore, the suit is liable to be dismissed.
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5. On the above set of pleadings, the learned District Munsif, Gudiyattam, framed the following issues:
i)Whether the plaintiff is entitled for the relief of declaration as prayed for?
ii) To what other relief, plaintiff is entitled?
6. During the trial before the Trial Court appellant was examined as PW1. PW2 and PW3 were also examined. Exhibits A1 to A4 had been marked on the side of the appellant. DW1 and DW2 were examined and Exhibits B1 to B5 were marked on the side of the respondent.
7. On considering the oral and documentary evidence, the learned District Munsif, Gudiyattam, found that the appellant has not established that muthalaq was pronounced for valid reason. It was also found that the appellant has failed to prove that muthalaq was pronounced in the manner known to law. In this view of the matter, the suit was dismissed. 5/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021
8. The appellant preferred Appeal No.17 of 2019. The learned Subordinate Judge, Gudiyattam, found no reason to interfere with the judgment of the Trial Court, confirmed the judgment of the Trial Court and dismissed the Appeal. Against the said appeal judgment, this Second Appeal is preferred.
9. Heard the learned counsel for the appellant and Mr.M.Marudhachalam, learned counsel who appeared for the respondent in the condone delay petition and perused the records.
10. The narration of facts of the case shows that, there is no dispute that marriage between the appellant and respondent had taken place on 21.08.2016. The main reason for the appellant to divorce his wife by pronouncing muthalaq is that the respondent was insisting on a separate family and when that was not conceded by the appellant, the respondent left the matrimonial home and that necessitated the pronouncement of muthalaq. There are other reasons as well like harassment alleged against the 6/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021 respondent, such as refusing to take care of the parents of the appellant, not keeping herself clean, preventing the appellant from attending mosque etc.,
11. The learned counsel for the appellant submitted that the contract of marriage under the mahomedan law may be dissolved,
i)by the husband at his will, without the intervention of a Court.
ii)by mutual consent of the husband and wife, without the intervention of a Court.
iii)by a judicial decree by the suit of the husband or wife.
12. He also submitted that any Mahomedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause.
13. Talaq may be oral or in writing. No particular form of words is prescribed for effecting a talaq. If the words are express or well understood as implying divorce no proof of intention is required. If the words are ambiguous, the intention must be proved. It is not necessary that the talaq should be pronounced in the presence of the wife or even addressed to her. 7/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021
14. He submitted that in the case before hand, the appellant had pronounced a valid muthalaq under the presence of elders and that was proved by examining PW2 and PW3. However, without considering that, appellant had proved pronouncement of muthalaq and terminated the marriage, both the Courts below have wrongly appreciated the evidence and dismissed the suit.
15. In response, learned counsel for the respondent submitted that there had been judicial pronouncements including by the Hon'ble Supreme Court that the “talaq, may be in the form of oral or writing, but it must be for a reasonable cause. It must be preceded by an attempt of reconciliation of husband and wife by two arbitrators one chosen from the family of the wife and other by husband. If their attempts fail, then talaq will be effected by pronouncement”. This is the observation made in the case reported in (2003) 3 ALD 220 (Zamrud Begum Vs. K.Md.Haneef) of the High Court of Andhra Pradesh.
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16. In 2002 SCC online Mad 836 (A.S.Praveen Akthar Vs. The Union of India), the High Court of Madras said that, “....talaq, in whatever form, must be for a reasonable cause, and must be preceded by attempts for reconciliation by arbiters chosen from the families of each of the spouses, the petitioner's apprehension that notwithstanding absence of cause and no efforts having been made to reconcile the spouses, this form of talaq is valid, is based on a misunderstanding of the law” Different Modes of talaq:
"A talak may be effected in any of the following ways:— (1) Talak ahsan.—This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat.
When the marriage has not been consummated, a talak in the ahsan form may be pronounced even if the wife is in her menstruation.
Where the wife has passed the age of periods of menstruation the requirement of a declaration during a tuhr is inapplicable; furthermore, this requirement only applies to a oral divorce and not a divorce in writing.
Talak Ahsan is based on the following verses of Holy 9/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021 Quran : "and the divorced woman should keep themselves in waiting for three courses."
"And those of your woman who despair of menstruation, if you have a doubt, their prescribed time is three months, and of those too, who have not had their courses." (LXV : 4).
(2) Talak hasan.—This consists of three pronouncements made during successive tuhrs , no intercourse taking place during any of the three tuhrs.
The first pronouncement should be made during a tuhr , the second during the next tuhr , and the third during the succeeding tuhr.
Talak hasan is based on the following Quranic injunctions:
"Divorce may be pronounced twice, then keep them in good fellowship or let (them) go kindness." (II : 229).
"So if he (the husband) divorces her [third time] she shall not be lawful to him afterward until she marries another person." (II : 230).
(3) Talak-ul-bidaat or talak-i-badai: This consists of—
(i) three pronouncements made during a single tuhr either in one sentence, e.g ., "I divorce thee thrice ,—or in separate sentences e.g., "I divorce thee, I divorce thee, I divorce thee"or, 10/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021
(ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage,e.g ., "I divorce thee irrevocably."
Talak-us-sunnat and talak-ul-biddat The Hanafis recognized two kinds of talak , namely, (1) talak-us-sunnat , that is, talak according to the rules laid down in the sunnat (traditions) of the Prophet: and (2) talak-ulbidaat , that is, new or irregular talak . Talak-ul- biddat was introduced by the Omeyyade monarchs in the second century of the Mahomedan era. Talak-ul-sunnat is of two kinds, namely, (1) ahsan , that is, most proper, and (2) hasan , that is, proper. The talak-ul-biddat or heretical divorce is good in law, though bad in theology, and it is the most common and prevalent mode of divorce in this country, including Oudh. In the case of talak ahsan and talak hasan , the husband has an opportunity of reconsidering his decision, for the talak in both these cases does not become absolute until a certain period has elapsed, and the husband has the option to revoke it before then. But the talak-ul-bidaat becomes irrevocable immediately it is pronounced (312). The essential feature of a talak-ul-bidaat is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr . But the triple repetition is not a necessary condition of talak-ul-bidaat , and the intention to 11/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021 render a talak irrevocable may be expressed even by a single declaration. Thus if a man says: "I have divorced you by a talak-ul-bain (irrevocable divorce)", the talak is talak- ul-bidaat or talak-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression " bain "-(irrevocable) manifests of itself the intention to effect an irrevocable divorce".
17. Hon'ble Supreme Court of India has put a seal on the true law relating to triple talaq under Islam. The Five Judges Bench of the Hon'ble Supreme Court set aside the petition of divorce through Triple talaq in AIR 2017 Supreme Court 4609 (Shayara Bano Vs. Union of India). The Apex Court held that the triple talaq is against the basic tenets of Quran.
"Given the fact that Triple talaq is instant and irrevocable, it was obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which was essential to save the marital tie, could not ever take place. Also, as understood by the Privy Council in Rashid Ahmad, such Triple Talaq was valid even if it was not far any reasonable cause, which view of the law no 12/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021 longer holds good after shamim Ara. This being the case, it was clear that this form of Talaq was manifestly arbitrary in the sense 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. The 1937 Act, in so far as it seeks to recognize and enforce triple talaq, was 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. The practise of talaq-e-biddat-triple talaq was set aside".
18. In this legal background, we have to appreciate the evidence available in this case. It is pointed out by the learned counsel for the respondent that the date of muthalaq is not specifically pleaded and proved. The reading of the plaint averments shows that in para 4 of the plaint, pronouncement of muthalaq is referred. It is said that on 08.11.2017, the respondent left the matrimonial home. When efforts were made through panchayatars for re-union, respondent said to have informed the panchayatar on 04.02.2019, that she would not join the appellant unless, he sets up a 13/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021 separate family. Therefore, he claimed that he paid mahar amount to the respondent and pronounced muthalaq on 04.02.2017. Obviously, there is mis-match in the date of alleged pronouncement of muthalaq in para 4 of the plaint and the prayer. In the prayer it is claimed that muthalaq was pronounced on 08.11.2018. The plaint was filed in the year 2018. Obviously, muthalaq would not have been pronounced on 08.11.2018. Thus, it could not be gathered from the plaint averments, as to the date on which the muthalaq was pronounced. This confusion was not cleared either before the Trial Court or before the Appellate Court.
19. When comes to the finding of the Courts below, the learned District Munsif Judge, Gudiyattam, on appreciation of oral and documentary evidence found that it is claimed by the appellant that a petition was given to jamad of the appellant and that was forwarded to jamad of the respondent. There was no enquiry conducted on the basis of this petition. No evidence was produced to show the presentation of this petition. Appellant's father and brother was examined as PW2 and PW3. However, it is seen from their evidence that they do not have personal knowledge about the alleged 14/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021 pronouncement of muthalaq by the appellant. Thus, the Trial Court concluded that appellant has failed to prove the pronouncement of muthalaq against the respondent. The first appellate Court also had gone through the evidence carefully and found the discrepancy in the date of alleged pronouncement of muthalaq and failure of the appellant in proving the muthalaq to the satisfaction of the Court. Thus, both the Courts have concurrently found that the appellant has failed to properly plead and prove the muthalaq alleged to have been pronounced against the respondent and dismissed the suit. As said above Hon'ble Supreme Court has set aside the practice of talaq-e-biddat- triple talaq and triple talaq as violative of the fundamental rights contained under the Article 14 of the Constitution and against the basic tenets of Quran. Thus, this Court, finds no reason to interfere with the judgment and decree of the first Appellate Court, confirming the judgment and decree of the Trial Court. There is no substantial question(s) of law involved in this Second Appeal.
20. In this view of the matter, the judgment and decree of the learned Subordinate Judge, Gudiyattam in A.S.No.17 of 2019 confirming the 15/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021 judgment and decree of the learned District Munsif, Gudiyattam, in O.S.No.21 of 2018 is confirmed.
21. In fine, this Second Appeal is dismissed. No costs.
29.11.2021 ep Index:Yes/No Internet:Yes/No Speaking Order: Yes/No 16/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021 To The Section Officer, VR Section, High Court of Madras.
17/18 https://www.mhc.tn.gov.in/judis S.A.No.908 of 2021 G.CHANDRASEKHARAN.J, ep S.A.No.908 of 2021 29.11.2021 18/18 https://www.mhc.tn.gov.in/judis