Jammu & Kashmir High Court - Srinagar Bench
Javaid Ahmad Wani Alias Waza vs Nigeena Akhter on 14 August, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRMC No. 87/2017
IA No. 01/2017
Date of Order: 14.08.2018
Javid Ahmad Wani Alias Waza
Vs.
Nigeena Akhter
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge
Appearance:
For petitioner(s): Mr A. M. Dar, Advocate
For respondent(s): Mr M. A. Qayoom, Advocate
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?
1. The facts chiseled out of the instant petition filed under Section 561_A Cr.
PC for quashing and setting aside the impugned judgment and order dated 03.04.2017, passed by the learned Judicial Magistrate 1st Class Charar-i- Sharief, whereby maintenance has been awarded in favour of the respondent herein, at a monthly rate of Rs. 5000/- from the date of the institution of the application, i.e., 03.05.2014, are that the respondent herein entered into a matrimonial alliance with the petitioner herein on 31.09.2011. After this marriage, the respondent/wife lived happily with the petitioner/husband for some period, whereafter, she (the wife) left her matrimonial home and took refuge in her parental home. In his objections filed by the petitioner/husband before the Trial Court, he pleaded that he CRMC No. 87/2017 Page 1 of 10 has already divorced his wife and placed on record the deed-of-divorce, the relevant excerpts of which are extracted below word for word and letter for letter:
"And whereas, the said divorce instead of mending her ways has opted to reside at her parental house and has in final and absolute terms refused to come to the house of the executant for matrimonial relationship."
Hence I, Javaid Ahmad Wani S/o Khwaja Habib Ullah Wani R/o Charar-E- Sharief, Budgam Kashmir pronounce triple TALAQ upon the said Mst. Nagina Akhter D/o Lt. Wali Mohammad Baba R/o Almadar Colony, Phase 2nd near Fire & Emergency Station, Charar-E-Sharief, Budgam Kashmir and free her from my matrimonial relationship for all times to come. The Executant has already paid unpaid Mehar etc. to said divorcees as and, however, some articles in the form of Television, Bed, Refrigerator, Washing Machine, Trunk, Suit Case, Rice Cooker, Clothings etc., has been lying in the house of the Executant. The said divorcee is also entitled to the maintenance of Iddat period as applicable under Shariah.
Therefore, the deed is reduced to writing in order to make it a testimonial/document for all times to come, as the Executant was having the reasonable causes aforementioned for pronouncing the Talaq. So the Executant was left with no option but to effect Triple Talaq. Hence, the Executant and divorcee from these presents are both free to contract second marriage with any other person of their own choice; however, the divorcee is bound to go for second marriage only after observing the Iddat period as prescribed under Muslim Personal Law".
2. Aggrieved by the order aforesaid, which directed the petitioner/husband to pay a monthly allowance of maintenance in favour of his wife, the petitioner assailed the same before this Court, mainly on the ground that he has divorced his wife before the date of filing the application under Section 488 Cr. PC and, therefore, the relationship of a husband and wife in between them has ceased to exist from the said day and, as a sequel thereto, she is not entitled to claim any maintenance from him.
3. Heard and considered.
4. The entire gamut of controversy raised herein this case as is repeated here is whether, or not, the Triple Talaq by which it is alleged that the CRMC No. 87/2017 Page 2 of 10 respondent ceased to be the wife of the petitioner is a valid one. 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 30 th November, 2017, incidentally authored by me, held as follows:
"06 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 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 CRMC No. 87/2017 Page 3 of 10 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 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 CRMC No. 87/2017 Page 4 of 10 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".
5. The petitioner herein has pronounced Triple Talaq on the respondent herein as can be seen from a bare perusal of the Deed of Divorce, the contents of which have been detailed above. This divorce is not a valid one in the eyes of law as elucidated in the judgment cited above. An arbitrary, instant or irrevocable talaq 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 CRMC No. 87/2017 Page 5 of 10 effect. Therefore, the triple talaq herein this petition is inconsequential and shall not produce any change in the relationship of the petitioner and the respondent. 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.
6. Looking at the petition of the petitioner from yet another angle, the Deed of Divorce, the relevant excerpts of which have been cited above does not provide anywhere that it was on account of extreme emergency that the respondent had to terminate the marriage. It does not stipulate that any reconciliation was attempted by the parties which ultimately failed. A Muslim husband does not have an unbridled and unfettered right to put the marriage to an end by a Triple Talak. The husband cannot seek pretense and an excuse to get rid of his wife so long as she is faithful and dutiful. No man can justify a divorce without substantiating it by reasons. Hon'ble Mr. Justice Bahar-ul-Islam of the Gauhati High Court (later a judge of the Supreme Court of India) sitting singly in the case Jaiuddin Ahmad v. Anwara Begum reported in 7 (1981) 1 Gauhati LR 358 and later speaking for the Division Bench in Rukia Khatun v. Abdul Khalique Laskar reported in 8 (1981) 1 Gauhati LR 375, observed that the 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 CRMC No. 87/2017 Page 6 of 10 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 Quranic 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 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. CRMC No. 87/2017 Page 7 of 10
7. Analyzing the contents of the Deed of Divorce from another perspective, the first question that strikes the mind is whether such a course as has been adopted by the respondent is permissible under the Muslim Personal Law. Deliberating over this issue, Hon'ble Mr Justice V. Khalid. J. as his Lordship then was, in case titled "Mohd. Haneefa v. Pathummal Beevi"
1972 KLT 512, observed as under:-
"... I feel it my duty to alert public opinion towards a painful aspect that this case reveals. A Division Bench of this Court, the highest court for this State, has clearly indicated the extent of the unbridled power of a Muslim husband to divorce his wife. I am extracting below what Their Lordships have said in "Pathayi v. Moideen"
'The only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under Hanafi law. ... The husband can effect it by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge.' Should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Can it not be amended suitably to alleviate their sufferings? My judicial conscience is disturbed at this monstrosity. The question is whether the conscience of the leaders of public opinion of the community will also be disturbed."
8. In an illuminating judgment, virtually a research document, delivered in the case of A. Yousuf Rawther Vs Sowramma reported in AIR 1971 Kerala, 261, an eminent Judge and jurist, V R Krishna Iyer, J. as his Lordships then was, has made extensive observations, the relevant extracts of which are reproduced below:-
"6. The interpretation of a legislation, obviously intended to protect a weaker section of the community, like women, must be informed by the social perspective and purpose and, within CRMC No. 87/2017 Page 8 of 10 its grammatical flexibility, must further the beneficent object. And so we must appreciate the Islamic ethos and the general sociological background which inspired the enactment of the law before locating the precise connotation of the words used in the statute.
7. ....Since infallibility is not an attribute of the Judiciary, the view has been ventured by Muslim jurists that the Indo- Anglican Judicial exposition of the Islamic law of divorce has not exactly been just to the Holy prophet or the Holy Book. Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Mohammad of India and Arabia. The sole of a culture-- law is largely the formalized and enforceable expression of a community's cultural norms-- cannot be fully understood by alien minds.
The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic Injunctions......It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. 'The whole Quoran 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".' (Quaran 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 Quoran 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 Quoran laid down and the same misconception vitiates the law dealing with the wife's right to divorce. ...After quoting from the Quoran and the Prophet, Dr. Galwash concludes that 'divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed to a dissolution of the marriage by 'Talaq' or by 'Khola'. . . Consistently with the secular concept of marriage and divorce, the law insists that at the time of Talaq the husband must pay off the settlement debt to the wife and at the time of Khola she has to surrender to the husband her dower or abandon some of her rights, as compensation."
9. Viewed in the context of all that has been said and done above, the petition of the petitioner is devoid of any merit. It entails dismissal and is CRMC No. 87/2017 Page 9 of 10 accordingly dismissed, as a corollary to which, the order of the Trial Court is upheld.
10. The record of the trial Court shall be sent back forthwith.
(M. K. Hanjura) Judge Srinagar 14.08.2018 "Manzoor"
CRMC No. 87/2017 Page 10 of 10