Jammu & Kashmir High Court
Jamurad Begum vs Nazar Hussain And Another on 30 December, 2020
Equivalent citations: AIRONLINE 2020 J AND K 361
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(through video conferencing)
Reserved on : 24.12.2020.
Pronounced on: 30.12.2020
CRM(M) No. 357/2020
CrlM No.1321 & 1322 of 2020
Jamurad Begum ...Petitioner(s)
Through:- Mr. Anuj Dewan Raina, Advocate
V/s
Nazar Hussain and another ...Respondent(s)
Through:- Mr. Nasir Mirza, Advocate for R-1
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. Through the medium of instant petition, the petitioner has challenged the order dated 20.02.2020 passed by the learned Principal Sessions Judge, Rajouri (hereinafter referred to as 'the Appellate Court'), whereby order dated 11.10.2019 passed by the learned Judicial Mobile Magistrate (T), Rajouri (hereinafter referred to as 'the Trial Court'), awarding monthly maintenance of Rs.8,000/- to the petitioner, has been set aside.
2. Before coming to the instant petition, let me give a brief background of the facts leading to the filing of this petition under Section 482 Cr.P.C. It appears from the record that the petitioner herein had filed an application under Section 23 of the Protection of Women from Domestic Violence Act (hereinafter referred to as 'D.V.Act') seeking maintenance as well as compensation from respondent No.1 herein. In the application it was 2 CRM(M) No.357/2020 contended by the petitioner that she had entered into wedlock with respondent No.1 about 30 years back and out of the said wedlock, four issues were born. It was further averred that behaviour of respondent No.1 towards the petitioner was not good and he would inflict acts of cruelty upon her from time to time. It was alleged that on 10.12.2017, the petitioner was thrown out of her matrimonial home. The petitioner claimed herself to be the legally wedded wife of respondent No.1, who was neglecting to maintain her and inflicting acts of domestic violence against her.
3. The application was resisted by respondent No.1 by filing reply thereto. In his reply, respondent No.1 claimed that, in terms of deed of divorce dated 12.08.1992, he has divorced the petitioner and that the said deed stands registered with Sub-Registrar, Rajouri. Respondent No.1 further claimed that for the last 27 years the petitioner was living separately from him and as such, there was no question of infliction of acts of cruelty or domestic violence by him upon her. It is claimed by respondent No.1 that the petitioner is being supported by her two major sons, one of whom is a Doctor whereas the other one is Engineer. It was also claimed by respondent No.1 that he has entered into wedlock with respondent No.2, who happens to be the sister of the petitioner and as per Muslim Law, two sisters cannot be wives of a person at one and the same time.
4. The learned Trial Court after hearing the parties passed a detailed order dated 11.10.2019, whereby the Court, while dealing with the plea of divorce taken by respondent No.1, observed that the merits of the said plea can be determined only after the evidence is adduced and until then 3 CRM(M) No.357/2020 the petitioner is entitled to interim maintenance of Rs.8,000/- per month from respondent No.1.
5. Against the aforesaid order, respondent No.1 filed an appeal before the learned Appellate Court on the same grounds that he had taken in his reply to the application before the learned Trial Court. Learned Appellate Court found favour with the version projected by respondent No.1 and it was observed by the said Court that there is material on record to show that the petitioner was divorced by respondent No.1 about 27 years ago and that since then she is residing separately from respondent No.1. Learned Appellate Court, while setting aside the order of the learned Trial Court, directed the said Court to pass a fresh order after making inquiry prima facie regarding the plea of both the parties within a period of three months.
6. The petitioner-wife has challenged the order of learned Appellate Court on the grounds that the petitioner was in domestic relationship with respondent No.1 and as such, entitled to grant of interim maintenance; that the learned Appellate Court has, without giving an opportunity to the petitioner to lead evidence against the alleged divorce deed, rendered an opinion about the validity of the said deed; that the impugned order of the learned Appellate Court is against the facts and law.
7. I have heard learned counsel for the parties and perused the material on record.
8. So far as facts of the case at hand are concerned, it is not in dispute that the petitioner had entered into wedlock with respondent No.1. The petitioner claims that marriage between her and respondent No.1 is still subsisting whereas respondent No.1 claims that the marriage stands 4 CRM(M) No.357/2020 dissolved about 27 years back and that the said fact is evidenced by deed of divorce dated 12.08.1992. According to the learned Trial Court, the question whether petitioner was divorced by respondent No.1 needs to be determined after giving the parties an opportunity of leading evidence but the learned Appellate Court has rendered its opinion that that the divorce between the parties has taken place about 27 years ago. According to the learned Appellate Court, this fact has not been denied by the petitioner herein. The learned Appellate Court has also made an observation that the petitioner herein has not denied that after her divorce by respondent No.1, her sister- respondent No.2 herein has entered into wedlock with respondent No.1.
9. I could not find anything from the pleadings of the parties, which stand reproduced by the learned Trial Court in its order dated 11.10.2019, to even remotely suggest that the petitioner herein has made any such admission, as has been claimed by the learned Appellate Court in its impugned order nor could I find anything in the pleadings of the petitioner to show that she has admitted the assertion of respondent No.1 regarding her separate residence.
10. The question that falls for determination is whether mere production of a deed of divorce, which is admittedly a unilateral document executed by respondent No.1-husband, would conclusively or even prima facie show that the petitioner herein has been divorced by respondent No.1. Dependent on the determination of the said issue would be the answer to the question whether the petitioner herein is entitled to maintenance from respondent No.1.
5 CRM(M) No.357/2020
11. The issue touching the subject of divorce under Muslim Law has been a matter of discussion in a large number of judgments rendered by the different High Court of the Country and the Supreme Court. In order to determine the controversy at hand, it will be apt to notice the observations made by different Courts in some of the celebrated judgments rendered on the issue.
12. In Yousuf Rawther v. Sowramma, AIR 1971 Ker 261, the eminent Judge and jurist V.R.Krishna Iyer-J, as His Lordship then was, has, while discussing the concept of divorce under Muslim Law, observed as under:-
"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 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-Anglian 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 Muhammad of India and Arabia. The soul 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 6 CRM(M) No.357/2020 injunctions.......... It is a popular fallacy that a Muslim male enjoys, under the Quaranic Law, unbridled authority to liquidate the marriage. "The Holy 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 Kholaa she has to surrender to the husband her dower or abandon some of her rights, as compensation."7 CRM(M) No.357/2020
13. The aforesaid observations of the High Court of Kerala were noticed by the Supreme Court in the case of Shamim Ara v. State of U.P. and another, (2002) 7 SCC 518. While doing so, the Supreme Court explained the mode of pronouncement of divorce in the following words:-
"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 taken place on 11.7.1987. 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 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. The respondent No.2 ought to have adduced evidence and proved the 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 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 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, 8 CRM(M) No.357/2020 filed in some previous judicial proceedings not inter parte, containing a self-serving statement of respondent no.2, could not have been read in evidence as relevant and of any value."
14. In Masroor Ahmed v. State (NCT of Delhi) & another, ILR (2007) II DELHI 1329, Badar Durrez Ahmed-J, as his Lordship then was, while holding that communication of talaq to wife is a vital ingredient of pronouncement, made the following observations:-
"36. The Supreme Court made it clear in Shamim Ara (supra) that a talaq, to be effective, has to be pronounced.
The manner of pronouncement of oral talaq also brings in differences in hanafi and ithna ashari schools. For one, the latter requires the presence of two competent witnesses, while the former does not. Then there is the issue of communication. A talaq may be pronounced in the absence of the wife. But, does it not need to be communicated to her? As discussed above, pronouncement of talaq materially alters the status of the wife. Her rights and liabilities flow from the nature of the talaq. Is it a revocable talaq or is it an irrevocable talaq? Then there is the question of iddat. Her right to residence. Her right to maintenance. Her right to mahr (if deferred). Custody of children, if any. Her right of pledging her husband's credit for obtaining the means of subsistence. How would she know that it is time for her to exercise these rights (or time for her not to exercise them, as in the case of pledging her husband's credit) if she does not even know that her husband has pronounced talaq? So, linked with the question of her rights is the issue of communication of the talaq to her? Furthermore, as pointed out above, the iddat period, in the case of a revocable talaq, is also a period during which the husband and wife have a re-think and 9 CRM(M) No.357/2020 attempt reconciliation. How would this be possible if the husband pronounces talaq secretly and does not at all inform the wife about it? Consequently, while it may not be essential that the talaq has to be pronounced in the presence of the wife, it is essential that such pronouncement, to be effective, is made know to her, communicated to her, at the earliest. Otherwise she would be deprived of her rights post talaq and pre-dissolution. What is the earliest will depend on the facts and circumstances of each case and would necessarily be a function of the access to communication that the husband and wife have. In the modern day, where every nook and cranny has landline or cellular coverage, in almost every case it would mean the same day. To my mind, communication is an essential element of pronouncement. Where the pronouncement of talaq is made in the presence of the wife, the acts of pronouncement and communication take place simultaneously. The act of pronouncement includes the act of communication. Where the wife is not present, pronouncement and communication are separated by time. The pronouncement would be valid provided it is communicated to the wife. The talaq would be effective from the date the pronouncement is communicated to the wife. In case it is not communicated at all, even after a reasonable length of time, a vital ingredient of pronouncement would be missing and such a talaq would not take effect."
15. In Mohd. Naseem Bhat v. Bilquees Akhter and another, 2013 KLJ 466, this Court observed that for a husband to wriggle out of his obligations under marriage including one to maintain his wife, claiming to have divorced her has not merely to prove that he has pronounced Talaak or 10 CRM(M) No.357/2020 executed divorce deed to divorce his wife but has to compulsorily plead and prove the following:-
(i) that effort was made by the representatives of husband and wife to intervene, settle disputes and disagreements between the parties and that such effort for reasons not attributable to the husband did not bear any fruit.
(ii) that he had a valid reason and genuine cause to pronounce divorce on his wife.
(iii) that Talaak was pronounced in presence of two witnesses endued with justice.
(iv) that Talaak was pronounced during the period of tuhr (between two menstrual cycles) without indulging in sexual intercourse with the divorcee during said tuhr.
16. In Ali Abbas Daruwala v. Mrs. Shehnaz Daruwala (WP No.114 of 2018 decided on 04.05.2018), the Bombay High Court while dealing with the plea of divorce raised by husband in the said case, in light of the provisions of the Domestic Violence Act, observed as under:-
"10. The purpose of any provision of law which is beneficial to a woman is to provide some solace to a woman during the subsistence of the marriage or even after she is divorced out of the said marriage and since the Domestic Violence Act is an enactment to provide effective protection of rights of woman, who are victims of violence, the respondent-wife cannot be denied the umbrella of the said legislation. The respondent-wife has staked her claim by filing proceedings under the Domestic Violence Act, 2005 claiming monthly 11 CRM(M) No.357/2020 maintenance for herself and her children vide Exh-34. On the said application, the respondent-husband has been directed to produce all or any of the documents which are in existence or his possession and which are not produced by him so as to reflect his earnings. Though it is a specific case of the petitioner-husband that he has divorced to his wife, it cannot be expressed as a gospel truth specifically in light of the latest pronouncement of the Hon'ble Apex Court in case of Shayara Bano v. Union of India & others as to what would be the effect of such Talaknama. In any contingency this Court is not concerned with the validity of the said Talaknama at this stage and in this proceeding. This Court will have to restrict itself to the impugned order dated 22.06.2017 passed by the Family Court at Bandra directing the husband to pay monthly amount for maintenance of the wife and the children and also to pay for the rent of the house where the wife is residing."
17. From a catena of judgments referred to herein before, it is clear that for a Muslim husband to avoid his liability to maintain his wife on the ground that he has divorced his said wife, said husband has not only to show that the divorce is validly pronounced in accordance with Muslim law but he has also to show that the said divorce has been communicated to the wife. In the instant case, learned Appellate Court, at the interim stage, has rendered an opinion on both these issues in favour of the husband by treating the case of the husband as gospel truth.
18. The learned Appellate Court, while setting aside the order of learned Trial Court, has observed that the learned Magistrate has treated the case of the wife as gospel truth, but has made a similar mistake while 12 CRM(M) No.357/2020 passing the impugned order by treating the documents and the pleadings of the husband-respondent No.1 herein as genuine.
19. In the instant case, it is admitted by the parties that they had entered into wedlock about 30 years back. Respondent No.1 had come up with a plea that he has divorced the petitioner herein in the year 1992. The burden is upon him to show that his act of pronouncing divorce was valid as per the Islamic Law and that the divorce was communicated to the petitioner. In the instant case the learned Appellate Court has presumed the correctness of assertions made by the husband and shifted the burden of rebutting these assertions upon the wife, which is against the settled principles of law of evidence and the precedents referred to hereinbefore. Thus, the learned Appellate Court has landed itself into error while setting aside the order of the Trial Court.
20. While passing the impugned order, the learned Appellate Court has discarded the documents produced by the petitioner herein on the ground that these documents were prepared after filing of the petition without bearing in mind the fact that these documents have been issued by public authorities in exercise of their official functions. There is a presumption of correctness attached to the documents like Adhaar Card, Identity Card issued by the Election Commission of India and Bank Pass Books. Infact these documents are universally accepted as identity and address proof of the concerned person(s). The learned Appellate Court has discarded these documents without any justifiable reasons and on the other hand placed reliance upon every documents produced by respondent No.1. In such circumstances, when there are claims and counter claims supported by material on each side, the proper course was to allow the learned Trial Court 13 CRM(M) No.357/2020 to hold an enquiry into the matter in terms of the provisions of D.V. Act and until then, in order to prevent vagrancy of a destitute lady, make an arrangement for maintenance of the said lady.
21. For the reasons discussed herein before, the impugned judgment passed by the learned Appellate Court is legally unsustainable as such, the same cannot be allowed to stand. The petition is, therefore, allowed and while upholding the order dated 10.11.2019 passed by the learned Trial Court, the impugned judgment/order passed by the learned Appellate Court is set aside.
(Sanjay Dhar) Judge Jammu 30.12.2020 Vinod.
Whether the order is speaking : Yes Whether the order is reportable: Yes VINOD KUMAR 2020.12.31 13:02 I attest to the accuracy and integrity of this document