Patna High Court
Md. Rizwan vs Bibi Rizwana Khatoon on 23 July, 2014
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta, Ravi Ranjan
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.373 of 2010
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Md. Rizwan, S/o Gulam Rasul, resident of Harpur Pusa, Bhuskaul, P.S.-
Pusa, District, Samastipur
.... .... Appellant -Plaintiff
Versus
Bibi Rizwana Khatoon, D/o Anwar Ali, R/o Vill.- Dih Sarshona, P.S.
Bangra, Distt. Samastipur
.... Opp. Party- Defendant
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Appearance :
For the Appellant : Mr. Sanjay Parashmani, Advocate
For the Respondent : Mr. Md. Harun Quareshi, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA
and
HONOURABLE DR. JUSTICE RAVI RANJAN
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA)
Date: 23-07-2014
Heard learned counsel for the appellant and learned
counsel for the respondent.
The appeal is directed against the judgment and decree
dated 31.03.2010 passed by the Principal Judge, Family Court,
Samastipur in Divorce Case No.96/2008 filed by the appellant seeking
a declaration and passing a decree holding that the plaintiff-appellant
has divorced the respondent and become unconcerned with the
defendant-respondent.
The case of the plaintiff-appellant, as stated in the plaint,
was that the marriage of the appellant took place with the respondent
on 21.05.2005 and it was alleged therein that during the stay of the
defendant at the place of the plaintiff a person used to come to the
2 Patna High Court MA No.373 of 2010 dt.23-07-2014
2 / 12
place of the appellant frequently and on every occasion he used to
meet the respondent in the room in which she was staying. One day
when the said person wanted to take the respondent to her father‟s
place, the plaintiff protested the same but still the respondent
accompanied the person and went to her father‟s place without the
consent of the plaintiff. It was further alleged that the said position
continued on every occasion whenever the respondent was in the
house of her husband and despite protest the said person used to enter
the room wherein she was staying at the house of the plaintiff. It was
also alleged that the said man was found in compromising position
with the respondent. On the other hand, the respondent used to refuse
to have co-habitation with the plaintiff. It was also alleged that on
05.07.2008, the plaintiff along with his relatives went to his father-in-
law‟s house and divorced the defendant according to the Mohammedan Law and disclosed to take the property and dower amount from him.
The respondent appeared and filed her written statement. In the written statement, the stand taken was that the divorce case has been filed by the plaintiff to save the skin from the criminal case of cruelty and maintenance in order to create his defence. The further stand taken was that the Talaq was never made in the presence of the respondent nor the appellant conveyed about the same and thus, the 3 Patna High Court MA No.373 of 2010 dt.23-07-2014 3 / 12 respondent was never divorced by him. It was also sought to emphasize that the decision of the Apex Court in Shamim Ara Vs. State of U.P. and another : AIR 2002 S.C. 3551 laying down the condition for valid Talaq has not been complied with. The allegations were denied as far from the truth. It was alleged that the plaintiff himself was entangled with his Bhabhi, Mazina Khatoon, and so he along with his family members subjected the respondent to cruelty for non-fulfilment of dowry demand of motor cycle and cash of Rs.50,000/- and lastly on 26.07.2008, the plaintiff and his family members brutally assaulted the defendant, snatched the ornaments and detaining all the „dahez‟ articles ousted the defendant from her matrimonial house for which the defendant has lodged criminal case vide C.R. No.1039/08.
The plaintiff examined three witnesses including himself and his father in support of his case. The respondent also examined four witnesses including herself. The respondent also brought on record Information Petition No. 3270/08 filed by the plaintiff- appellant on 25.06.2008, in paragraph 8 of which it was recited that on the previous day i.e., 24.06.2008, father and brother of the respondent came to his house and forcibly took away all the articles including the ornaments, furniture, etc., and the respondent also accompanied them.
4 Patna High Court MA No.373 of 2010 dt.23-07-2014 4 / 12 On a consideration of the pleadings and evidence of the parties, the court below came to the conclusion that the allegation of adultery was not made out and further the pre-requisite of valid Talaq, namely, Talaq being for a reasonable cause and that it was preceded by an attempt at reconciliation between the husband and the wife by two arbitrators, one chosen by the wife from her family and the other chosen by the husband from his family and only on failure of such attempt, the Talaq may be effected by pronouncement, could not be proved in this case and for the said reason, dismissed the suit holding that the plaintiff was not entitled to a decree of divorce or any other relief as sought for.
The point to be considered in this appeal is as to whether the appellant has succeeded in establishing the pre-requisite condition for a valid Talaq in the present matter. In this regard, reliance has been placed by the respondent from the very beginning on the decision of the Supreme Court in the case of Shamim Ara (Supra), in paragraphs 13 to 16 of which it has been laid down as follows:
"13. There is yet another illuminating and weighty judicial opinion available in two decisions of Gauhati High Court recorded by Baharul Islam, J. (later a Judge of the Supreme Court of India) sitting singly in Sri Jiauddin Ahmed v. Mrs. Anwara Begum, (1981) 1 GLR 358 and later speaking for the Division Bench in Must. Rukia Khatun v. Abdul Khalique Laskar, (1981) 1 GLR 375. In Jiauddin Ahmed's case, a plea of previous divorce, i.e. the husband having
5 Patna High Court MA No.373 of 2010 dt.23-07-2014 5 / 12 divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid talaq of the wife by the husband under the Muslim Law ? The learned Judge observed that though marriage under the Muslim Law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriage-tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution. (Para 6). Quoting in the judgment several Holy Quaranic verses and from commentaries thereon by well-recognized scholars of great eminence, the learned Judge expressed disapproval of the statement that "the whimsical and capricious divorce by the husband is good in law, though bad in theology" and observed that such a statement is based on the concept that women were chattel belonging to men, which the Holy Quran does not brook. 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 family and the other from the husband's; if the attempts fail, talaq may be effected (Para 13). In Rukia Khatun's case, the Division Bench stated that the correct law of talaq, as ordained by Holy Quaran, 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 view which, in their opinion, did not lay down the correct law.
14. We are in respectful agreement with the 6 Patna High Court MA No.373 of 2010 dt.23-07-2014 6 / 12 abovesaid observations made by the learned Judges of High Courts. We must note that the observations were made 20-30 years before and our country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends. What this Court observed in Bai Tahira v. Ali Hussain, AIR 1979 SC 362 dealing with right to maintenance of a muslim divorcee is noteworthy. To quote :
"The meaning of meanings is derived from values in a given society and its legal system. Article 15(3) has compelling compassionate relevance in the context of S. 125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-used wife and the derelict divorcee. This social perspective granted, the resolution of all the disputes projected is easy. Surely, Parliament, in keeping with Art. 15(3) and deliberate by design, made a special provision to help women in distress cast away by divorce.
Protection against moral and material abandonment manifest in Art. 39 is part of social and economic justice, specificated in Art. 38, fulfillment of which is fundamental to the governance of the country (Art. 37). From this coign of vantage we must view the printed text of the particular Code." (para 7) "Law is dynamic and its meaning cannot be pedantic but purposeful." (para 12)
15. The plea taken by the husband-respondent No. 2 in his written statement may be re-noticed. The respondent No. 2 vaguely makes certain generalized accusations against the wife-appellant and states that ever since the marriage he found his wife to be sharp, shrewd and mischievous. Accusing the wife of having brought disgrace to the family, the respondent No. 2 proceeds to state, vide para 12 (translated into English) - "The answering respondent, feeling fade up with all such activities unbecoming of the wife-petitioner, has divorced her on 11-7-87". The particulars of
7 Patna High Court MA No.373 of 2010 dt.23-07-2014 7 / 12 the alleged talaq are not pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency continued to prevail even during the trial and the respondent No. 2, except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11-7-1987. There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq.
16. We are also of the opinion that the talaq to be effective has to be pronounced. The term 'pronounce' means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate (See Chambers 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq having taken place on 11-7-1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5-12-1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effecting talaq on the date of delivery of the copy of the written statement to the wife. The respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11-7-1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the 8 Patna High Court MA No.373 of 2010 dt.23-07-2014 8 / 12 written statement in the Court followed for delivery of a copy thereof to the wife. So also the affidavit dated 31-8-1988, filed in some previous judicial proceedings not inter parte, containing a self-serving statement of respondent No. 2, could not have been read in evidence as relevant and of any value."
It is evident from a consideration of the proposition laid down in the above decision that there are three requisites which must be fulfilled before a Talaq can be held to be valid. The first is that the Talaq must be for a reasonable cause; the second is that it must be preceded by an attempt at reconciliation between the husband and the wife by two arbitrators, one chosen by the wife from her family and the other chosen by the husband from his family, and if their attempts fail, the Talaq may be effected; and lastly, the Talaq in order to be effective has to be pronounced, that is, it must be proclaimed or uttered formally, declared or articulated and a mere plea taken regarding its communication are not sufficient for the purpose of pronouncement of Talaq.
Even in the attempts so made in the evidence of the plaintiff and his father, the names of the arbitrators appointed by the appellant or by the respondent or from both sides have not at all been mentioned and the statements made are of vague and general nature.
In the present matter, from a consideration of the 9 Patna High Court MA No.373 of 2010 dt.23-07-2014 9 / 12 pleadings in the plaint, this Court does not find any averment with regard to the Talaq which shows fulfilment of the pre-requisite condition of reconciliation in the manner laid down in the aforesaid judgment. The plaintiff-appellant through his evidence and the evidence of his father has sought to make certain statements with regard to attempt at reconciliation which ultimately failed but that seems to be a mere afterthought upon consideration of the written statement filed by the respondent and in the absence of any pleading in the plaint itself such evidence cannot be of any avail.
So far as the question of reasonable cause is concerned, there can be no doubt that if the plaintiff had succeeded in proving the case of adultery that would have constituted a reasonable cause for Talaq. Learned counsel for the appellant, however, is unable to show either from the plaint or from the evidence of the parties regarding any details of the so-called person about whom it is alleged that he was coming to the house of the plaintiff so long as respondent stayed there on a daily basis and was found in compromising position, as to what was his name, parentage and other details or any effort to locate that person or any criminal case having been instituted against the said person for his repeated entry into the inner chambers of the house despite protest made by the plaintiff. As a matter of fact, the said anonymous person has not even been made party to the suit of 10 Patna High Court MA No.373 of 2010 dt.23-07-2014 10 / 12 divorce although the principal ground on which the divorce has been claimed is that of adultery with that person.
In this regard, the clear statement of the appellant in the plaint and evidence is that on 04.07.2008, the said person was found in compromising position with the respondent. Thereafter, on 05.07.2008 the plaintiff and the family members and others went to the house of the respondent making a complaint about the same to the father, whereas, as has rightly been noted by the court below that in their Information Petition filed on 25.06.2008, which has been brought on record as Ext. B, the allegation made was that the father and brother of the respondent had come to the house on 24.06.2008 and had forcibly taken away all articles including ornaments, etc. and subsequently the respondent also accompanied them. There is no explanation in the plaint or in the evidence of the parties as to how and under what circumstances the respondent having left the house of the appellant-plaintiff along with her father and brother and all other articles including the ornaments etc., she had again come back to the house of the plaintiff and was found in compromising position. The same clearly shows serious lacuna in the case of the plaintiff and makes it difficult to accept the stand regarding the fact that the respondent was found in a compromising position with unnamed person. The absence of such particulars including the name of that 11 Patna High Court MA No.373 of 2010 dt.23-07-2014 11 / 12 person who was found in compromising position gives credence to the stand of the respondent that the entire story has been cooked up for the purpose of divorce case and also to save the plaintiff and create a defence in the complaint case filed under Section 498-A of the Indian Penal Code. Thus, the only ground on which the reasonable cause for divorce could have been sustained falls flat and, thus, the first requirement for a valid Talaq is also not proved.
The contention of learned counsel for the appellant is that the respondent simply denied the allegation but could not get anything in the cross-examination and, thus, the court below has seriously erred in disbelieving the case of the plaintiff and deciding the matter against him.
In our view, it is primarily for the plaintiff to prove his case in order to succeed and the plaintiff appears to have hopelessly failed in the same.
It is also submitted by the learned counsel for the appellant that so far as reasonable cause is concerned, the said term is vague and is a matter of perception and thus the conclusion that there was no Talaq is not proper. In our view, the question regarding reasonable cause has to be examined in the facts and circumstances of each case and in the present matter there is no vagueness involved, rather it is a case of failure of the plaintiff to prove by evidence the 12 Patna High Court MA No.373 of 2010 dt.23-07-2014 12 / 12 reasonable cause sought to be taken in the plaint, namely, the adultery allegedly committed by the respondent.
Learned counsel has sought to argue that the decision of the Supreme Court in Shamim Ara's case (Supra) has no application in the facts of the present matter as the said case was filed under Section 125 of the Code of Criminal Procedure, whereas, in the present matter, the appellant had filed a divorce case.
The said submission is only noticed to be rejected as in the aforesaid case the Supreme Court has clearly laid down the pre- requisites for a valid Talaq which would be particularly applicable in a suit for divorce filed by a Muslim husband like the appellant.
Thus, in the light of the aforesaid discussions, we do not find any merit in this appeal. It is, accordingly, dismissed.
(Ramesh Kumar Datta, J) (Dr. Ravi Ranjan, J) SC/-/ Sanjay II U