Delhi District Court
Sh. Shakhawat Hussain vs Smt. Zubaida Khatoon on 15 April, 2009
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IN THE COURT OF SH. GURDEEP SINGH:ASJ04
NORTHEAST DISTRICT:KARKARDOOMA COURTS:DELHI
IN THE MATTER OF:
SH. SHAKHAWAT HUSSAIN
S/o Sh. Manzar Hussain
R/o Madarsa Telimal Islam
Village Piplehra, PS: Massoori
Distt. Ghaziabad, U.P .....Revisionist
Versus
SMT. ZUBAIDA KHATOON
D/o Mohd. Subhan
R/o B20/57, Rajeev Nagar,
Khajoori Khas, Delhi .....Respondents
Criminal Revision No. 03/09
O R D E R
1. Vide this order, I shall decide the revision petition filed against the order dated 04/06/2008, passed by Ms. Anuradha Shukla, Ld. Metropolitan Magistrate, Delhi, whereby rejecting the plea of divorce taken by the husband/revisionist and application U/s 5 of Limitation Act for condonation of delay.
2. The brief facts relevant for the disposal of the present revision petition are that an application U/s 125 Cr.P.C was moved by the respondent/wife against the petitioner 2 i.e her husband for grant of maintenance. Exparte judgment was passed. However, later on, the exparte judgment was setaside. Thereafter, reply was filed and application U/s 125 Cr.P.C was opposed on the ground that the present petition is not maintainable as the petitioner has divorced his wife/ respondent.
3. In view of Section 3 and 4 of Muslim Woman (Protection of Rights on Divorce) Act, 1986 (hereinafter in short referred as the Act of 1986), in case of divorced muslim women, Section 125 Cr.P.C is not applicable. Apparently, by way of impugned preliminary judgment, the question whether the respondent has been divorced or not, is decided.
4. I have heard Ld. Counsel for the parties and also gone through the record.
5. Ld. Counsel on behalf of the revisionist has moved an application U/s 5 of Limitation Act for the condonation of delay in filing the present petition.
6. Firstly, I shall decide the application for condonation of delay. the impugned order was passed on 04.06.08 and as 3 per the seal of certified copy, it was obtained on 28.06.08. It is stated that the petitioner consulted his lawyer on 28.06.08. However, his Counsel Mohd. Iliyas Choudhary had received fatal head injuries in the road accident and file was in his custody. His office remained close from 11.02.08 to June 2008 and his juniors were only taking dates, as per the list. Mohd. Iliyas Choudhary, Advocate resumed his office in the month of June but due to his illness, he could not prepare the revision and he advice the revisionist to engage any other counsel because he was unable to come from Ghaziabad. Thereafter, the revisionist consulted one Sh. Adil Ali, Advocate at Karkardooma Courts. He kept file with him but did not file the revision in time. On 07.01.09, Sh. Adil Ali, Advocate finally disclosed that the revision has not been filed due to his mistake. Thereafter, he contacted his previous counsel who prepared the present revision petition. The present petition was filed on 09.01.09.
7. The application for condonation of delay was opposed on the ground that the delay has not been properly explained. Further, there is no affidavit of Sh. Adil Ali, Advocate, who 4 had allegedly not filed the revision petition nor any complaint is filed by the revisionist against the said counsel for his negligence nor there is any medical certificate of the present counsel of his accident.
8. It is a settled law that for condoning the delay, each days delay must be explained. The present Counsel has resumed his office in the month of June when the certified copy was obtained. There is no explanation of delay of about six months except that the file was lying with the Counsel at Karkardooma Court. Merely by saying that the Counsel did not file the revision petition and return the same is not a sufficient explanation as the revisionist has neither inquired from his counsel at any point of time nor taken any action against him for his misconduct. Moreover, there is no medical certificate of the present lawyer not his affidavit. Therefore, I am of the opinion that the application for condonation of delay is without any merit and liable to be dismissed. Even on merit the revision petition is devoid any merit. It is demonstrated in following paras.
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9. The impugned order has been questioned on the grounds that the trial court has overlooked the legal notice which was placed on record which has given reason for divorce and also the attempts of reconciliation. Further, the law relied upon by the trial court are applicable to different sects of muslim. It is further submitted that the right of Mehar is not a precondition for valid divorce. It is also stated that the fatwa from a competent Mufti has also been filed alongwith the revision petition, which is applicable amongst the Sunnis sect of Muslims. It is also stated that under written statement the factum of divorce was given and the divorce letter was not disputed by the respondent or her counsel.
10. Ld. Counsel has cited "Banu & Anr. V. Kutubuddin Sulemanji Vimanwala", II (1995) DMC 390, Bombay High Court. In the said case, it was held by Hon'ble Bombay High Court, that 'talaq' pronounced in the absence of wife takes effect without communicating to her and it is not necessary for divorce to come to her knowledge.
11. Ld. Counsel also cited "Syed Maqsood V. State of A.P", AIR 2003 Andhra Pradesh 123. In the said case, it was held 6 that efforts to reconciliation is not a precondition for pronouncement of divorce by husband.
12. Now I shall take the argument that the factum of divorce is given in the written statement and it amounts to divorce. The Hon'ble Supreme Court in "Shamim Ara V. State of UP & Anr.", 2002 A.I.R. (SC) 3551 has held that a plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating 'talaq'.
13. As regards, the judgment cited by Ld. Counsel that reconciliation is not a precondition for divorce is also stands overruled by the above cited judgment of Shamim Ara, where in the Hon'ble Supreme Court has approved the judgment of Division Bench of Gauhati High Court in "Must. Rukia Khatun v. Abdul Khalique Laskar", (1981) 1 GLR 375 wherein it was observed that "The correct law of talq 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' 7 may be effected. Accordingly for a valid 'talaq', (1) the '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 the husband from his. If their attempts fail, 'talaq' may be effected."
14. While upholding the above observation, it was observed that " We are in respectful agreement with the abovesaid observations made by the learned Judges of High Courts. We must note that the observations were made 2030 years before and our country has in recent times marched steps ahead in all walks of life including progressive interpretation of law which cannot be lost sight of except by compromising with regressive trends."
15. "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 8 taken place on 11.07.1987. 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 05.12.1990. 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 be itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. The respondent No. 1 ought to have adduced evidence and proved the pronouncement of talaq on 11.07.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed.
16. Now in the light of the law on the subject laid down by the Apex Court, the arguments of Ld. Counsel are to be dealt with. It is also to be mentioned that in view of the judgment of the Hon'ble Supreme Court , both the judgments cited by Ld. Counsel on behalf of the revisionist stands over ruled. Therefore, as per the law settled by the Hon'ble Supreme Court , the divorce given in the written statement cannot be treated as a divorce, unless, a divorce 9 was properly communicated.
17. It is also argued that the divorce letter was not disputed nor there was any suggestion to the revisionist saying that it was an invalid divorce. There is no infirmity in the opinion of the Trial Court. Since, the divorce was never communicated to the respondent/wife, there was no question of disputing the same. Therefore, on this count also, the argument of Ld. Counsel for the revisionist is without any merit.
18. Ld. Counsel has submitted that the Trial Court had erred in overlooking the legal notice which was on record in which the reason of divorce was given and attempts for reconciliation were mentioned. Efforts of reconciliation cannot be proved by way of legal notice but it has to be proved by evidence of witness who participated in conciliation. Reconciliation at Crime against Women Cell does not meet requirement of Law. It may be sufficient for giving the reason of divorce but no legal notice can be read for the purpose of finding out that efforts for reconciliation were made and reconciliation by its very nature cannot be done by legal notice. Moreover, as held by the Hon'ble 10 Supreme Court, it has to be with the one arbiter from both the sides.
19. Ld. Counsel on behalf of the revisionist also argued that the payment of Mehar is not a precondition for a valid divorce. However, the Trial Court correctly applied law as laid down in Riaz Fatima's Case, 2007 (1) JCC 365. Payment of Mehar is also precondition for valid muslim divorce.
20. Accordingly, I am of the opinion that the revision petition is barred by limitation and there is no illegality or impropriety committed by the trial court which calls for interference. The Revision Petition is accordingly dismissed. Copy of the order be sent to the Trial Court. Revision file be consigned to record room. Announced in the open Court today i.e on 15/04/09 (GURDEEP SINGH) Additional Sessions Judge Karkardooma Courts, Delhi 11 Cr. No. 03/09 15.04.09 Present: Revisionist in person.
Vide my separate order announced today, the revision petition is dismissed.
Copy of the order be sent to the Trial Court. Revision file be consigned to record room.
(GURDEEP SINGH) ASJ/KKD/15.04.09