Orissa High Court
Unknown vs Union Of India And Others Along With ... on 5 April, 2021
Author: S.Panda
Bench: S.Panda
MATA NO.64 OF 2019
07. 05.04.2021 Heard learned counsel for the appellant.
2. This appeal under Section 19 of the Family Courts Act, 1984
has been filed by the appellant challenging the judgment dated
22.02.2019 passed by the learned Judge, Family Court, Khurda in
C.P. No.11 of 2017 rejecting the application filed by the appellant
for dissolution of marriage with the respondent.
3. The learned Judge, Family Court has framed as many as
three issues in respect of the matrimonial dispute between the
parties, which are as follows:
i) Whether the marriage between the parties has been
solemnized on 21.03.2007?
ii) Whether the respondent was torturing her husband and
for that he has gone for conciliation towards dissolution of
marriage?
iii) Whether the appellant is entitled to decree of divorce?
The appellant in order to prove his case has examined two
witnesses including himself as P.W.1 whereas the respondent
examined four witnesses including herself as R.W.1. The appellant
has also exhibited five documents and the respondent has
exhibited four documents.
4. The learned Judge, Family Court after hearing learned
counsel for the parties and scrutinizing the evidence on record,
BP
recoded a finding that the appellant has failed to convince the
court either establishing his plea of torture by the respondent or in
proving his 'Talaq' including its means and response by the
respondent in that regard. The appellant also failed to prove the
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acknowledgement of letter by the respondent to the alleged
'Talaq'. On the basis of the aforesaid finding, the learned Judge,
Family Court by the impugned order dismissed the Civil
Proceeding, which is under challenge in the present appeal.
5. The above findings are recorded on the basis of the
respective pleadings of the parties which are as follows:
The marriage between the appellant and the respondent
was solemnized on 21.03.2007 under Mohammedan law by
observing all formalities of a valid 'nikah'. After 'nikah' the
respondent stayed in the paternal house of the appellant. The
appellant is serving in Indian Army but due to accommodation
problem he did not take the respondent with him. The appellant
used to come to his home frequently and was also taking her care.
After one month of marriage the respondent's parent wanted to
take the respondent to their home in absence of the appellant.
Thereafter the respondent did not return to the house of the
appellant despite repeated request of the appellant. On the
intervention of gentlemen the respondent joined to the company of
the appellant and stayed at the service place of the appellant. Out
of their wedlock a male child was born. While the respondent was
with the appellant at his service place, the parents of the
respondent had visited the respondent and her son. During the
stay of the parents of the respondent, she was instigated by her
parents as a result of which the respondent abused the appellant,
ill treated him and mentally tortured him and also she did not agree
to relationship with the appellant. Thereafter the father-in-law of
the appellant took the respondent to his home. The appellant tried
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to restitute the conjugal life but failed. It is stated that though the
appellant is ready and willing to lead conjugal life with the
respondent but she without any cause has withdrawn herself from
the society of the appellant. The appellant had tried to reconcile
the matter through mediators but the respondent did not take any
step for which the reconciliation failed. On 05.08.2009 the
appellant pronounced 'Talaq' and communicated it in writing to the
respondent, which was acknowledged by the respondent.
Thereafter he also communicated 'Talaq' twice to her. So the
pronouncement of 'Talaq' in presence of witnesses and the
communication of the fact of 'Talaq' and her acknowledgment to
the effect resulted in dissolution of marriage between the parties. It
is stated since the marriage has already been dissolved on
07.02.2013 it lacks judicial declaration. The appellant has prayed
that as he has pronounced 'Talaq' thrice within the jurisdiction of
the Court, the Court has the jurisdiction to declare the marriage as
dissolved.
5.1 The respondent appeared before the court below and filed
her written statement admitting the marriage. However, she has
denied other allegations. It is contended that at the time of
marriage, as per demand from the side of the appellant
Rs.1,00,000/-, four tolas of gold, silver ornaments, Refrigerator,
Colour TV and other household articles were given. However, the
family members of the appellant were not satisfied with these
dowry articles, therefore they compelled the respondent to bring
Rs.50,000/- more as additional dowry amount along with other
house hold articles from her father. Since the respondent and her
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widow mother were not capable to fulfill the demand of the
appellant, his father, mother and sister started manhandling the
respondent and did not provide food and clothes to her during the
period of pregnancy. The family members of the appellant had also
tortured her brutally, which was intolerable. Therefore, the
respondent came to her mother's house. Thereafter due to
intervention of the village gentlemen the appellant agreed to take
the respondent and not to repeat such type of behavior with the
respondent in future. Accordingly, the respondent went to his
service place at Itarasi, Madhya Pradesh. At the service place of
the appellant the respondent blessed with a male child. Thereafter,
the parents and sister of the appellant came to the service of the
appellant and started torturing the respondent physically and
mentally. They also did not allow food to the respondent after her
delivery for which she fell ill. Finding no other way out, the
respondent had written a letter to her mother on 03.01.2008. On
receipt of the said letter, the mother and brother of the respondent
went to the service place of the appellant but they were ill treated
by the family members of the appellant even they drove out the
mother and brother of the respondent from their house. It is stated
that though the respondent tried many times to stay in her in-laws
house but the members of in-laws family of the respondent were
not allowing her to enter in their house. It was further contended
that the appellant is serving in Indian Army and is drawing more
than Rs.50,000/- as monthly salary. That apart he has vast landed
properties out of which he gets a sum of Rs.1,50,000/- per month.
With the above pleadings the respondent prayed to dismiss the
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civil proceeding.
6. The Apex Court in the case of Shayara Bano Vs.
Union of India and others along with batch of cases
reported in (2017) 9 SCC 1 held that:
"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. It is observed in Fyzee's book that 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. 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. However, 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 such Triple
Talaq is valid even if it is not for any reasonable cause.
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.
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This form of talaq must, therefore, be held to be violative
of the fundamental right contained under Article 14 of
the Constitution of India. Therefore, the 1937 Act, in so
far 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.
7. In view of the aforesaid decision pronounced in the year
2017 and since the learned Judge, Family Court, Khurda has
passed the impugned judgment and decree in accordance with the
law settled by the Apex Court and as there is no error apparent on
the face of the record, we are not inclined to interfere with the
same.
The MATA is accordingly dismissed.
........................
S.Panda, J.
........................ S.K.Panigrahi, J.