Gauhati High Court
Page No.# 1/2 vs The Union Of India And 4 Ors on 24 July, 2025
Page No.# 1/20
GAHC010195352021
2025:GAU-AS:9529
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6368/2021
FIRDUJA BEGUM
W/O MD. MANIRUL ALI
D/O MOHAMMED ALI,
RESIDENT OF VILLAGE BHASANIGAON, PO LAKHIGANJ, PS BILASIPARA,
DIST DHUBRI ASSAM 783345
VERSUS
THE UNION OF INDIA AND 4 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF INDIA,
MINISTRY OF HOME AFFAIRS, NEW DELHI 110001
2:THE DIRECTOR GENERAL
CENTRAL RESERVE POLICE FORCE
INDIA
CGO COMPLEX
NEW DELHI 110001
3:THE COMMANDANT
32 BN. CRPF.
LOKTAK
CHURACHANPUR
MANIPUR
795124
4:MD. MANIRUL ALI
S/O TAZEM ALI
RESIDENT OF VILLAGE PAROURA GAON
PO SASHAR GAON. PS FAKIRAGRAM
DIST KOKRAJHAR
ASSAM
Page No.# 2/20
783345
5:MRS. SURMILA BEGUM
W/O MD. MONIRUL ISLAM
RESIDENT OF VILLAGE PAROURA GAON
PO SASHAR GAON. PS FAKIRAGRAM
DIST KOKRAJHAR
ASSAM
78334
Advocate for the Petitioner : MD J ALOM, H M ALI,MR. M ISLAM,MS RUKMINI BARUA,MS
PADMINI BARUA
Advocate for the Respondent : ASSTT.S.G.I., MR A K DAS (R-4,5),MR. M HUSSAIN (R-4,5),MR.
K GOGOI (R-1,2,3) BEFORE HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR JUDGMENT & ORDER (Oral) Date: 24.07.2025 (N. Unni Krishnan Nair. J) Heard Mr. M. Islam, learned counsel for the petitioner. Also heard Mr. K. Gogoi, learned CGC appearing for the respondent nos. 1 to 3 and Mr. M. Hussain, learned counsel appearing for the respondent nos. 4 & 5.
2. The petitioner, by way of instituting the present proceeding, has prayed for the following reliefs: -
(i) a writ in the nature of Certiorari directing the respondent authorities to set aside and quash the impugned letter/order dated 22.02.2020 (Annexure-1) as the same is in gross violation of the principes of natural justice and de hors the rights of the petitioner, and/or
(ii) a writ in the nature of Mandamus directing the respondent authorities to declare that the Talak-i-Bian (Affidavit) by which the petitioner was purportedly Page No.# 3/20 given Talak by the respondent No. 4 is null and void and has no force in law, and/or
(iii) also a writ in the nature of Mandamus directing the respondent authorities to declare that the second marriage contracted by the petitioner's husband with the respondent No. 5, Mrs. Surmila Begum is violative of the rule-15 of the CRPF Rules of 1955, and the same is to be declared as null and void, and/or
(iv) further a writ in the nature of Mandamus directing the respondent authorities to incorporate/reinstate the name of the petitioner as nominee/dependent holder of her respondent husband in the list of nominee/dependent holders in the service book of the petitioner's husband, i.e. the respondent no. 4 by removing the name of the respondent no. 5, Mrs. Sarmila Begum, the second wife of the respondent no. 4 from the list of nominee/dependent holders of the service book of the respondent no. 4.
3. The brief facts requisite for adjudication of the issue, arising in the present proceeding is noticed as under: -
The petitioner's marriage was solemnized with the respondent no. 4 on 11.10.1998 and the said marriage was duly registered in the office of the Muslim Marriage & Divorces Registrar, Bilasipara, Dhubri, Assam. The respondent no. 4, at the relevant point of time was working as a Head Constable (GD) in the Central Reserve Police Force (in short CRPF). On the solemnization of the marriage of the petitioner with the respondent no. 4, the name of the petitioner came to be recorded as a nominee/dependent of the respondent no. 4 in his service records. The petitioner and the respondent no. 4 were blessed with two female children and the younger one was a minor at the time of filing of the present writ petition.
The petitioner, in the writ petition, has contended that since the year 2018 she has been forced to live separately from her husband due to the torture meted out to her by her husband i.e., the respondent no. 4 on account of non-
Page No.# 4/20 fulfillment of demand for payment of dowry by her husband and his family members. The petitioner, accordingly, had instituted Miscellaneous Case No. 12/2008, invoking the provisions of Section 125 Cr.P.C., before the Court of the learned Sub-Divisional Judicial Magistrate (M), Bilasipara, praying for maintenance for herself and her younger daughter Masuda Begum. The learned Trial Court, vide order dated 26.11.2008, allowed the prayer of the petitioner herein, by directing the respondent no. 4 to provide maintenance at the rates directed to both the petitioner as well as her minor daughter.
The petitioner, thereafter, filed an application being Misc. Case No. 206/2017, under Section 127 of the Cr.P.C., praying for enhancement of the maintenance amount so directed to be paid to her by the learned Trial Court. The learned Trial Court, upon consideration of the issue, was pleased vide order dated 18.06.2019, to enhance the maintenance amount awarded to Rs. 8,000/- per month in favour of the petitioner and to Rs. 4,000/- per month in favour of her minor daughter.
The petitioner came to learn that her husband had married the respondent no. 5 without divorcing her, and she also gathered information that her name was deleted as a nominee/dependent of the respondent no. 4 in his service book/records and the name of the mother of her husband was incorporated therein, as his nominee. It is further projected that after the marriage of her husband with the respondent no. 5, the respondent no. 4 was taking steps for incorporating the respondent no. 5 as his nominee in his service records. Being aggrieved, the petitioner submitted a representation before the Commandant, 32 Bn., CRPF, Loktak, Churachandpur, Manipur on 12.02.2018, praying for re-incorporation of her name as a nominee/dependent of the respondent no. 4 in his service book. The said representation was followed by further representations dated 12.02.2018 and 20.09.2018.
Page No.# 5/20 In response to the representations submitted by the petitioner, the authorities of the CRPF informed her vide a communication dated 13.10.2018, that a communication has already been issued to the respondent no. 4, calling for his explanation in the matter and also for submission of the Certificate of Talaknama. It was further projected in the said communication that an enquiry would be conducted by the authorities in the matter and, on completion of which, the result thereof would be communicated to the petitioner, herein.
It is further projected in the writ petition that vide the communication dated 22.02.2020, issued by the office of the Commandant, 32 Bn., CRPF, Loktak, Churachandpur, Manipur, the petitioner was informed that on an enquiry made into the grievance expressed by her and an explanation in this connection being obtained from the respondent no. 4; and he having submitted his explanation along with a TALAQ-I-BAIN in writing, issued by Mr. Fazlur Rahman, Notary, District Dhubri, Dhubri, Assam along with a Marriage Certificate issued by the Marriages and Divorce, Registrar, Bilasipara, pertaining to the marriage of the respondent no. 4 with the respondent no. 5, the said documents on being considered and divorce being effected, the issue with regard to the marriage of the respondent no. 4 with the respondent no. 5, was closed with a warning to the respondent no. 4.
Being aggrieved, the petitioner has instituted the present proceeding.
4. Mr. M. Islam, learned counsel for the petitioner has submitted that the purported divorce in the form of Talaq-i-Bain, executed by the respondent no. 4 before the Notary, Dhubri District, Dhubri on 21.06.2013 is clearly not sustainable. Mr. Islam has submitted that the divorce so effected vide the said Notarized document dated 21.06.2013, was never brought to the knowledge of the petitioner herein. Mr. Islam by drawing the attention of this Court, to the proceeding of Misc. Case No. 206/2017 has submitted that the fact that the respondent no. 4 had divorced the petitioner herein, Page No.# 6/20 on 21.06.2013 was not brought on record therein. In the objections filed by the respondent no. 4 in the said proceeding, there is no reference to the purported divorce so stated to have been effected on 21.06.2013 by him. Mr. Islam has further submitted that the respondent no. 4 herein, had also not disclosed about the execution of the said document, divorcing the petitioner on 21.06.2013 even in the proceeding of G. R. Case No. 68/2008, instituted basing on the FIR filed by the petitioner against the respondent no. 4 and his family members. Mr. Islam has further submitted that the affidavit filed by the respondent no. 4 in the matter, would also go to reveal that the said notarized document pronouncing divorce by the respondent no. 4 at the petitioner herein, was also not submitted before his employer at any point of time, prior to the year 2019.
5. Mr. Islam, learned counsel for the petitioner has submitted that the authorities of the CRPF had erred in accepting the explanation submitted by the respondent no. 4 on the basis of the purported Talaq-i-Bain/Divorce declaration made by the Notary public. Mr. Islam has further submitted that the respondent authorities also miserably failed to ascertain the veracity of the contention of the respondent no. 4 that the Talaq-i- Bain/Divorce by way of declaration by Notary public was handed over to the petitioner. Mr. Islam by referring to a OM dated 10.10.2024, issued by the Govt. of India, Ministry of Law and Justice, Department of Legal Affairs (Notary Cell) has submitted that in terms of the provision of the Notaries Act, 1952 and the Notaries Rules, 1956, the execution of Marriage/Divorce affidavit is not the function of a Notary. It was further projected by the learned counsel for the petitioner that the provisions of the Act of 1952 and the Rules of 1956 do not authorize any Notary to notarize an affidavit of marriage or divorce and the Notary is also not competent to notarize a decree of divorce. Mr. Islam, learned counsel for the petitioner, accordingly, submits that the purported divorce by way of declaration before the Notary public, relied upon by the respondent no. 4 herein, would have no consequence and could not have been relied upon by the respondent authorities for the purpose of rejecting the prayer of the Page No.# 7/20 petitioner for incorporation of her name as nominee/dependent of the respondent no. 4 in his service records.
6. Mr. Islam, learned counsel for the petitioner, in support of his submissions has relied upon the decisions of the Division Bench of this Court in the cases of (1) Must. Rukia Khatun Vs Abdul Khalique Laskar, reported in (1981) 1 GLR 375, (2) Zeenat Fatema Rashid Vs Md. Iqbal Anwar, reported in (1993) 1 GLR Supp 85 and the decision of the Hon'ble Supreme Court in the case of (3) Shamim Ara Vs State of U.P. and Another, reported in (2002) 7 SCC 518.
7. In the above premises, Mr. Islam, learned counsel for the petitioner has submitted that the order dated 22.02.2020, issued by the CRPF authorities, rejecting the claim of the petitioner for re-incorporation of her name in the service record of the respondent no. 4 as his nominee/dependent along with the Talaq-i-Bian, executed before the Notary public by the respondent no. 4 as well as the second marriage contracted by the respondent no. 4 with the respondent no. 5 are required to be set aside and declared to be null and void with a further direction to the respondent authorities to incorporate the name of the petitioner as a nominee/dependent of the respondent no. 4 herein, in his service record.
8. Mr. K. Gogoi, learned CGC, appearing for the respondent nos. 1, 2 & 3 has submitted that an enquiry was held in pursuance to the representation submitted by the petitioner and a query being made in the matter to the respondent no. 4, he had forwarded the Talaqnama and had contended that the same was also handed over to the petitioner herein. He further submits that the respondent no. 4 had also contended that he had married the respondent no. 5 after divorcing his first wife i.e., the petitioner, herein. Mr. Gogoi has further submitted that it is on the basis of the enquiry and the clarification submitted in the matter by the respondent no. 4 that the CRPF authorities had proceeded to issue the communication dated 22.02.2020. Accordingly, he submits that the said communication would not call for an interference Page No.# 8/20 by this Court.
9. The learned counsel for the respondent nos. 4 & 5 has submitted that the respondent no. 4 had duly divorced the petitioner herein, on 21.06.2013 and a copy of the Talaqnama was also forwarded to the petitioner herein. The learned counsel has submitted that the marriage between the respondent no. 4 & 5 was solemnized on 08.07.2013 i.e., after the respondent no. 4 had divorced the petitioner herein, and accordingly, the allegation of the petitioner that during the subsistence of the marriage between the petitioner and the respondent no. 4, the respondent no. 4 had married the respondent no. 5 is clearly not sustainable. The learned counsel has submitted that the petitioner after being divorced by the respondent no. 4, cannot be construed to be a family member of the respondent no. 4 and accordingly, her claim for being incorporated as a nominee/dependent in the service records of the respondent no. 4 would not be permissible in terms of the provisions of the CCS (Pension) Rules, 1972.The learned counsel for the respondent nos. 4 & 5 has further submitted that the challenge made to the Talaqnama as well as the marriage conducted between the respondent nos. 4 & 5, this Court, would not have any jurisdiction to entertain the said issue. Accordingly, he submits that the writ petition mandates to be dismissed in limine.
10. Rejoining his submissions, Mr. Islam, learned counsel for the petitioner has submitted that the Talaqnama was never brought to the knowledge of the petitioner and for the first time she had come to learn about the same only on perusal of the communication issued by the CRPF authorities on 22.02.2020. Mr. Islam, learned counsel has reiterated that the said Talaqnama was also not produced before the authorities of the CRPF by the respondent no. 4 at any point of time before the enquiry initiated in the matter in pursuance to the representations submitted by the petitioner in the year 2018. Mr. Islam has further submitted that the contention of the respondent no. 4 that the Talaqnama was also handed over to the petitioner herein, is clearly perverse, inasmuch as, the same was never so forwarded to the petitioner Page No.# 9/20 herein, and the Talaqnama was for the first time brought on record by the respondent no. 4 in the affidavit-in-opposition filed by him in the present proceeding. Mr. Islam has further submitted that the respondent no. 4 in his affidavit has also not brought on record any material to demonstrate that the said Talaqnama was handed over to the petitioner at any point after the same was so executed before the Notary concerned.
11. I have heard the learned counsels appearing for the parties and also perused the materials available on record.
12. While it is not disputed that the petitioner herein was married to the respondent no. 4 on 11.10.1998; and her name was also incorporated as a nominee in the service records of the respondent no. 4. The validity of the deletion of the name of the petitioner as a nominee/dependent from the service record of the respondent no. 4 is the issue arising in the present proceeding. The respondent no. 4, in support of his such action, has relied upon the Talaqnama executed on 21.06.2013 before the Notary public, Dhubri District. While the reliance is placed on the said document stated to have been so executed on 21.06.2013, there is no explanation on the part of the respondent no. 4 as to why the same was not brought to the notice of the Trial Court in the proceeding of Misc Case No. 206/2017; instituted by the petitioner herein, praying for enhancement of the maintenance authorized to her earlier by invoking the provisions of Section 127 Cr.P.C.
13. A perusal of the Judgment dated 18.06.2019, passed by the learned Trial Court would go to reveal that the evidence in the matter was so recorded on 29.04.2019 and 18.06.2019; and there is no reference in the evidences so adduced by the respondent no. 4 of, he, having divorced the petitioner on 21.06.2013. Further, the respondent no. 4 has also not brought on record the fact that he had divorced the petitioner herein, in the proceeding of the G. R. Case No. 68/2008 before the Court of the Sub-Divisional Judicial Magistrate (M) Bilasipara, which proceeding was so Page No.# 10/20 instituted basing on a FIR lodged by the petitioner under Section 498 (A) of the IPC. It is also material to note that the respondent no. 4 herein had instituted a criminal petition being Crl. Petn. No. 90/2020, before this Court, assailing the order dated 18.06.2018, passed by the Sub-Divisional Judicial Magistrate (M) Bilasipara in Misc. Case No. 206/2017, enhancing the maintenance receivable by the petitioner herein, along with the order passed in Criminal Revision Petition No. 7/2019, by the Addl. District & Sessions Judge, Bilasipara vide order dated 20.11.2019. In the said criminal petition also, the respondent no. 4 had not made any mention about the divorce given by him to the petitioner herein. The said aspect of the matter pertaining to the execution of the Talaqnama on 21.06.2013 had surfaced for the first time when a notice in the enquiry initiated by the CRPF authorities was issued to the respondent no. 4, basing on the representation submitted by the petitioner in the matter for re- incorporation of her name in the service records of the respondent no. 4.
14. The Talaq-in-bain in writing was executed before a Notary Public. It is a settled position of law that a Notary public not being declared as a marriage officer would not be entitled to notarize divorce decrees and the said position emanating from the provisions of the Notaries Act 1952 was clarified vide the OM dated 10.10.2024. The OM dated 10.10.2024 being clarificatory in nature, the same would have retrospective effect and accordingly, the said Talaqnama, purportedly executed by the respondent no. 4 before the Notary public, in the considered view of this Court, for the purpose of adjudicating the issue arising in the present proceeding, would not mandate a consideration.
15. The respondent no. 4 had due opportunity to get the validity of the Talaqnama executed by him in the proceedings as indicated herein above, however, he had not referred to such Talaqnama in any of the said proceedings.The said facts as coming to the notice of this Court, gives rise to a doubt as to the execution of the said Talaqnama on 21.06.2013 by the respondent no. 4, herein, and accordingly, the said Talaqnama would not mandate a consideration while examining the prayer of the Page No.# 11/20 petitioner for re-incorporation of her name in the service records of the respondent no. 4.
16. A perusal of the Talaqnama, purportedly, executed by the respondent no. 4 on 21.06.2013, would go to reveal that he had vide the same by uttering three divorces consequently at the same time, had contended to have divorced the writ petitioner. The validity of the Triple Talaq has received judicial consideration both by this Court as well as by the Hon'ble Supreme Court. The Division Bench of this Court, in its decision in the case of Must. Rukia Khatun (supra) vide order dated 09.07.1979 had after noticing the various provisions governing the matter, held that the condition precedent required to be complied with for giving a Talaq by a Muslim man to his wife, he must choose an Arbiter from his side and the wife an Arbiter from her side and the Arbiters must attempt at reconciliation with a time gap so that the patience of the parties may cool down and reconciliation be possible. If ultimately, the reconciliation is not possible, the husband will be entitled to give Talaq. It was further held that the Talaq must be for a good cause and must not be mere desire, sweet whim and caprise of the husband and that it must not be a secret. In the case on hand, the steps as set out by this Court in the case of Must. Rukia Khatun (supra) was not demonstrated by the respondent no. 4 to have been complied with.
17. The Division Bench of this Court, in the case of Zeenat Fatema (supra) vide its judgment dated 05.05.1993, had drawn the following conclusions: -
"7. We are not inclined to accept the submission made by Mr. Barua. We approach the matter as follows. Under the Quran, the marriage slate is to be maintained as far as possible and there should be conciliation before divorce (see not 254 of vol 1 of Holy Quran by A. Yusuf Ali). Therefore, the Quran discourages divorce and it permits only in extreme cases after pre-divorce conference. Therefore, a Mahomedan husband cannot divorce his wife at his whim and caprice. The question then is. Whether, if divorce by talak is made arbitrarily, it should be treated as spiritual offence only? Under the Mahomedan Law, marriage though regarded as a civil contract between a man and a woman, they become husband and wife Page No.# 12/20 after solemnization of the marriage and their respective rights and obligations are regulated by the rules under relevant law. This being the position, marriage is the basis for social organisation and foundation of legal rights and obligations. The modem concept of divorce is also that the matrimonial status should be maintained as far as possible. Under Section 7 of the Family Court Act, 1984, cases relating to matrimonial status of any person are within the jurisdiction of the Family Court. The Family Court aims at conciliation and persuasion of parties to arrive at a settlement. For these reasons, if a Mahomedan husband divorces his wife at his whim and caprice, it would not only be a spiritual offence but it would also affect the divorce. In the above view of the matter, a Mahomedan husband cannot. divorce his wife at his whim or caprice, that is, divorce must be for a reasonable cause, and it must be preceded by a pre-divorce conference to arrive at a settlement. Therefore, we are in agreement with the decision of this Court, and we respectfully arc unable to agree with the view taken by the other High Courts that divorce can be made at whim and caprice of the husband. The decisions of this Court were made by the Single Judge in the year 1978 and by the Division Bench in the year 1979, before 14/15 years ago. Therefore, the question of unsettling the settled position of law does not arise.
10. We respectfully submit that we are unable to agree with the decisions in the above referred cases for the following reasons. Written statement is a pleading. Pleading is one thing and proof is another. Pleading is formal allegations by the parties of their respective claims and defences to provide notice of what is to be expected at trial. Proof is establishment of a fact by evidence or matters before the Court or legal tribunal. Where the parties are in dispute as regards a material fact, an averment in the pleading does not constitute evidence, as what is stated in the pleading is recital of past event which is required to be proved. Under the Evidence Act, if a material fact pleaded is not proved, it follows that the Court considers or believes that the fact does not exist. Therefore averment in the pleading cannot be used in favour of the maker. This being the position, statement made by the husband in his pleading or deposition that he has divorced his wife is recital of past event, and, if talak pleaded is not proved such statement shall be of no consequence. In that view of matter, if statement made by the husband that he had divorced his wife in his pleading or deposition is considered as an acknowledgement of divorce by talak, it will be against the policy of law, and it would also amount to furnishing or providing evidence of talak, which is against the rule of pleading and proof. That apart, in view of our conclusion Page No.# 13/20 above mat divorce must be for a reasonable cause and it must be preceded by a pre-divorce conference, if the statement made orally in evidence or in the written statement that the husband had divorced his wife in a proceeding under section 125, CrPC, will be a valid talak from the date of making statement cannot be sustained as it would be contrary to our conclusion. For the reasons stated above, the contention of Mr. Barua is rejected."
18. The said two decisions of the Division Bench of this Court were considered with approval by the Hon'ble Supreme Court in the case of Shamim Ara (supra). The Hon'ble Supreme Court, in the said case had drawn the following conclusions: -
"15. The plea taken by Respondent 2 husband in his written statement may be renoticed. Respondent 2 vaguely makes certain generalized accusations against the appellant wife 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, Respondent 2 proceeds to state, vide para 12 (translated into English) "The answering respondent, feeling fed up with all such activities unbecoming of the petitioner wife, has divorced her on 11-7-1987." The particulars of 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 Respondent 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 bproof that any effort at reconciliation preceded the talaq.
16. We are also of the opinion that the talag to be effective has to he 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 e 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 effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent 2 ought to have adduced evidence and proved the Page No.# 14/20 d 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 e 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 the wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31-8-1988, filed in some previous judicial proceedings not inter partes, containing a self-serving statement of Respondent 2, could not have been read in evidence as relevant and of any value.
17. For the foregoing reasons, the appeal is allowed. Neither the marriage between the parties stands dissolved on 5-12-1990 nor does the liability of Respondent 2 to pay maintenance comes to an end on that day. Respondent 2 shall continue to remain liable for payment of maintenance until the 9 obligation comes to an end in accordance with law. The costs in this appeal shall he borne by Respondent 2."
19. The Hon'ble Supreme Court, in the case of Shayara Bano Vs. Union of India & Ors., reported in (2007) 9 SCC 1, had examined the issue of pronouncement of Triple Talaq and had therein, approved its decision in the case of Shamim Ara (supra) to the effect that Triple Talaq lacks legal sanction. It further held that Shamim Ara (supra) being a law laid down under the provisions of Article 141 of the Constitution of India, it is the law that is applicable in the country. The Hon'ble Supreme Court, in the said decision in Paragraph Nos. 13, 15, 18, 27 and 104 concluded as follows: -
"13. The above view has been endorsed by various High Courts, finally culminating in Shamim Ara by this Court which has since been taken as the law for banning Triple Talaq. Interestingly, prior to Shamim Ara, Krishna Iyer, J. in Fuzlunbi v. K. Khader Valis, while in a three-Judge Bench in this Court, made a very poignant observation on the erroneous approach of Batchelor, J. in Sarabai v. Rabiabai on the famous comment "good in law, though Page No.# 15/20 bad in theology". To quote: (Fuzlunbi cases, SCC p. 136, para 20)
15. There is also a fruitful reference to two judgments of the Kerala High Court one of Krishna Iyer, J. in A. Yousuf Rawther v. Sowrammal and the other of V. Khalid, J. in Mohd. Haneefa v. Pathummal Beevil. No doubt, b Sowramma was not a case on Triple Talaq, however, the issue has been discussed in the judgment in paras 7 & 8 which have also been quoted in Shamim Aral: (Sowramma case, SCC OnLine Ker)
7. ... The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions....
8. ... It is a popular fallacy that a Muslim male enjoys, under the Quranic law, unbridled authority to liquidate the marriage. "The whole Quran expressly forbids a man to seek pretexts for divorcing his wife, so long as she remains faithful and obedient to him, "if they (namely, women) obey you, then do not seek a way against them"." (Quran IV:34). The Islamic law gives to the man primarily the faculty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. If he abandons his wife or puts her away in simple caprice, he draws upon himself the divine anger, for the curse of God, said the Prophet, rests on him who repudiates his wife capriciously'.... Commentators on the Quran have rightly observed and this tallies with the law now administered in some Muslim countries like Iraq-that the husband must satisfy the court about the reasons for divorce. However, Muslim Law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife's right to divorce...." (Shamim Ara case, SCC pp. 524-25, para 12) (emphasis in original)
18. Shamim Ara has since been understood by various High Courts across the country as the law deprecating Triple Talaq as it is opposed to the tenets of the Holy Quran. Consequently, Triple Talaq lacks the approval of Shariat.
27. Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and Page No.# 16/20 reiterate 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.
104. 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, 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. 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 recognise 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 recognises 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."
20. A perusal of the decisions rendered by this Court as well as the Hon'ble Supreme Court would go to reveal that the pronouncement of Triple Talaq was deprecated and had held that Triple Talaq being instant and irrevocable, it is obvious that any attempts 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.
21. The Hon'ble Supreme Court, in the case of Shayara Bano held that the view that talaq is valid even if it is not for any reasonable cause to be no longer to be a good law after its decision in the case of Shamim Ara (supra). Triple Talaq was held to be manifestly arbitrary, in the sense that the marital tie can be broken capriciously and whimsically by Muslim man without any attempt at reconciliation to save it. The Triple Talaq was therefore, held to be violative of the fundamental rights contained Page No.# 17/20 under Article 14 of the Constitution of India. Accordingly, as of 21.06.2013, when the respondent no. 4 had pronounced the Triple Talaq towards divorcing the petitioner herein, the decision rendered by the Hon'ble Supreme Court in the case of Shamim Ara (supra) held the field and accordingly, the said Talaq as pronounced by the husband of the petitioner even ignored in the manner it was done, would not be sustainable.
22. At this stage, it is also required to be noted that the communication of the said Talaq to the petitioner herein, has been disputed by her. Further, as noticed herein above, the same was so done before a Notary Public, who was also not conferred with the power to register any such divorce.
23. In view of the above discussions and in the light of the decisions of this Court as well as of the Hon'ble Supreme Court as noticed herein above, for the purpose of the issue arising in the present proceeding, this Court is of the considered view that the Talaq pronounced by the respondent no. 4, on 21.06.2013, would not be a material for consideration by the authorities of the Central Reserve Police Force for considering the prayer of the petitioner for incorporation of her name in the service book records of her husband i.e. the respondent no. 4, as his dependant/nominee.
24. Having drawn the above conclusions, the order dated 22.02.2020, passed by the CRPF authorities, rejecting the prayer of the petitioner for re-incorporation of her name in the service records of the respondent no. 4 is now being examined.
The communication dated 22.02.2020 being relevant to the issue arising in the present proceeding, the same is extracted herein below: -
"No. G.II-1/2018-32-EC-II Dated: 22/02/2020
To,
Smt. Firduza Begum.
D/o. Mohammed Ali.
P/O-Lakhi Ganj.
P/S-Bilasipara,
Dist-Dhubri (Assam)
Page No.# 18/20
PIN-783345.
Subject: APPLICATION FOR REMAINED NAME AS A NOMINEE.
Please refer to your application dated-07/01/2020.
Vide your letter under reference this office has been requested to intimate further outcome of subject case. In this regard, it is submitted that the matter has been enquired and explanation to his regard has been obtained from No. 961240301 HC/GC Monirul Ali where said individual submitted his explanation along with TALAQ- I-BAIN IN WRITING issued by FAZLUR RAHMAN, NOTARY DHUBRI DISTRICT, DHUBRI ASSAM, INDIA REGD-NO-DBI-10, also submitted Marriage Certificate issued by MARRIAGE & DIVORCES REGISTRAR BILASIPARA. Said documents submitted has been considered and on the basis of above evidence of this divorce and marriage with Surmila Begum case has been closed with a warning to Monirul Ali.
No further action requires from this office.
(Bhaskar Bhattacharyya) D/C For Commandant-32 Bn., CRPF."
25. A perusal of the said communication dated 22.02.2020, would go to reveal that the claim of the petitioner for re-incorporation of her name in the service records of the respondent no. 4 was rejected only on the explanation submitted by the respondent no. 4. The respondent no. 4 while submitting his explanation had also brought on record the Talaqnama executed by him on 21.06.2023, with a further contention that the same was handed over to the petitioner herein.
26. As already noticed herein above, the said Talaqnama, for the purpose of determining the right of the petitioner for re-incorporation of her name as a nominee/dependent in the service records of the respondent no. 4, being not permissible to be so considered, in view of the fact that the same has not been executed in the manner required and/or the same not having been proved to have been so executed, the Commandant-32 Bn., CRPF had exceeded his jurisdiction in placing reliance on the said Talaqnama, purportedly, executed by the respondent no. 4 on 21.06.2013. In view of the said position, the said communication dated 22.02.2020 Page No.# 19/20 cannot be sustained and the same would call for an interference by this Court.
27. Accordingly, in view of the above discussions, the communication dated 22.02.2020, issued by the Commandant-32 Battalion, Central Reserve Police Force, rejecting the prayer of the petitioner for reincorporation of her name as dependant/nominee of the respondent no. 4 in his service records, stands set aside.
28. Having drawn the above conclusions, this Court is of the view that as on date, the status of the petitioner herein, as the wife of the respondent no. 4 has not been altered and accordingly, her right to be construed as a nominee/dependent of the respondent no. 4 and incorporation of her name in the service records of the respondent no. 4 as a nominee/dependent, cannot be denied to her. Accordingly, this Court is of the considered view that the authorities of the CRPF are required to re- incorporate the name of the petitioner herein, in the service records of the respondent no. 4 as his nominee/dependent. Consequently, a direction is issued to the Commandant-32 Bn., CRPF to re-incorporate the name of the petitioner herein, in the service records of the respondent no. 4 forthwith as a nominee/dependant and extend to her all consequential benefits flowing from such re-incorporation as a nominee/dependent in the service records of the respondent no. 4.
29. The petitioner has also prayed for an interference with the marriage solemnized between the respondent no. 4 and respondent no. 5. This Court is of the considered view that it is not permissible for this Court, in the present proceedings, to consider the said prayer. Accordingly, the respondent no. 4 is given liberty to establish that the Talaqnama as executed by him on 21.06.2013 to be valid by initiating appropriate proceedings in accordance with law.
30. Basing on the decisions as would be now rendered in the proceeding that would be initiated by the respondent no. 4 for establishing the validity of the Talaqnama executed by him in the matter, the marriage of the respondent no. 4 solemnized with Page No.# 20/20 the respondent no. 5 would be so considered. However, for the issues arising in the present proceeding, this Court, proceeds to reiterate that the Talaqnama executed by the respondent no. 4 on 21.06.2013, having been held to be not sustainable, the marriage between the petitioner and the respondent no. 4 cannot be held to have been dissolved and the petitioner herein, continuous to carry the status of being the wife of respondent no. 4 and accordingly, be entitled to all consequential benefits flowing there from.
31. With the above observations and directions, the present writ petition stands disposed of.
JUDGE Comparing Assistant