Jammu & Kashmir High Court - Srinagar Bench
Javaid Iqbal Wagay. vs Mst. Naza on 24 April, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
561-A No. 203/2014
Date of Order: 24th of April, 2018.
Javaid Iqbal Wagay.
Vs.
Mst. Naza.
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr.Momin Khan, Advocate. .
For the Respondent(s): Mr. Aftab Ahmad, Advocate.
i) Whether approved for reporting in Yes/No
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ii) Whether approved for publication
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01. In this petition filed U/s 561-A CrPc, the petitioner has sought the indulgence of this Court in setting aside the order dated 1.10.2014 passed by the Learned Chief Judicial Magistrate, Shopian in an application U/s 488 CrPc bearing file No. 19/N on the grounds, inter alia, that the respondent is his, wife. After the marriage both of them lived as husband and wife in the parental house of the petitioner. However, the behavior of the respondent from the very inception of this marriage was hostile, rude and crude towards the petitioner and his parents. She started quarrelling with the petitioner and his parents on issues that were trifle. The petitioner asked her to shun the hostile behavior but that would infuriate her further. It is also stated that the 561-A No. 203 of 2014 Page 1 of 5 sincere efforts made by the petitioner and his parents to seek the resumption of the matrimonial tie between the petitioner and the respondent did not bear any fruit. The respondent give birth to a child from the thigs of the petitioner. Thereafter she left for her parental home. She was asked to resume the matrimonial tie which she refused to do and ultimately on 03.04.2013, the petitioner pronounced a Talak on her by a written instrument executed in the presence of two witnesses. The respondent has proceeded to state that the petitioner suppressed the factum of divorce in her petition and the trial court awarded interim maintenance in her favour by an order dated 01.10.2014 which is against the dictums of law as according to Shariya once a woman is divorced by the husband she is not entitled to any maintenance. In the instant case the petitioner has divorced the respondent in terms of a written Talak Nama, much before the institution of the maintenance proceedings, and, therefore, the respondent could not seek maintenance . The trial Court has failed to appreciate this aspect of the case in light of the settled law occupying the field. It was not open for the trial Court to grant interim maintenance to the respondent. In the premises it has been prayed that the order dated 1.10.2014 passed by the Learned Chief Judicial Magistrate, Shopian ,whereby the petitioner has been directed to pay Rs. 2,000/- as interim maintenance to the respondent be quashed.
02. Heard and considered.
03. Para 3 of the deed of divorce attached to the file has a direct bearing on the issue raised herein this petition and it is reproduced below verbatim:-
"That the said lady in any case whatsoever has not changed herself nor her actions which were against personal law and despite the fact the executants has requested her several times to change her behavior and attitude and to remain as an obedient and faithful Muslim wife but the said Ms.t Shahnaza Akhter failed to 561-A No. 203 of 2014 Page 2 of 5 follow requests of the executant. The executant tried his best to keep the marriage tie intact but the said Mst. Shahnaza Akhter is not ready to live with the executant and all the efforts of the executant went in vain. so the executant out of his own free will with cool mind without any force, fraud, coercion or undue influence with understanding pronounces triple Talak."
04. From the perusal of the Para No.3 reproduced herein before what comes to the fore is that a Triple Talak has been pronounced by the petitioner on the respondent through a written deed of divorce dated 03.04.2013. 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 30th November, 2017, incidentally authored by me, held as follows:
"06. A daughter has a statutory right to be maintained by the father irrespective of the fact whether, or not, the mother has a right to be maintained. The father has to discharge his legal duty and moral obligation of maintaining the child. True it is that the wife also cannot be left in a lurch till such time that the application is finally heard and determined. Grant of interim maintenance is a relief against destitution. The Supreme Court in the case of "Savitri v. Govind Singh", reported in "AIR 1986 SC 984", while evolving this concept, ordained that even an application supported by an affidavit will be sufficient to seek such a relief. The aim and object of the grant of interim maintenance is to prevent vagrancy and to provide the wife and child a breathing spur to live. The petitioner being an able bodied person receiving a handsome salary cannot evade his responsibility to maintain his child and the wife. 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:561-A No. 203 of 2014 Page 3 of 5
"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 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 561-A No. 203 of 2014 Page 4 of 5 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.
06. Applying the ratio of the law laid down above to the facts of the instant case, an arbitrary, instant or irrevocable talaq as ordained by the Holy Quran 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 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, as a corollary to which the petition of the petitioner is dismissed along with all connected MP(s).
(M.K. Hanjura) Judge SRINAGAR 24.04.2018 Showkat 561-A No. 203 of 2014 Page 5 of 5