Jammu & Kashmir High Court - Srinagar Bench
Safiya & Anr. vs Shafiq Ahmad Mir on 24 April, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
561-A No. 297/2015
Date of Order: 24th of April, 2018.
Safiya & Anr.
Vs.
Shafiq Ahmad Mir
Coram:
Hon'ble Mr Justice M. K. Hanjura, Judge.
Appearance:
For the Petitioner(s): Mr. Z.A. Shah, Sr. Advocate with
Mr. A. Hanan Kalwal, Advocate.
For the Respondent(s): Mr. S.M. Ayoub, Advocate.
i) Whether approved for reporting in Yes/No
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes/No
01. Aggrieved by the order dated 30.11.2015 of the Ld. Sessions Judge, Pulwama passed in file No. 15/Revision and the judgement of the Court of the Ld. Chief Judicial Magistrate, Pulwama dated 15.05.2014 passed in file No. 29/N, the petitioners have challenged their virus in this petition filed U/s 561-A CrPc on the grounds, inter-alia, that the petitioner No.1 solemnized a marriage with the respondent herein. She gave birth to a son that is, the petitioner No.2 from the ribs of the respondent. On their neglect by the respondent, the petitioners 561-A No. 279 of 2015 Page 1 of 12 were forced and coerced to take refuge in the parental home of the petitioner No.1 where she has been living along with her son for a long time by now. The petitioner No. 1 filed an application U/s 488 CrPc on her behalf and on behalf of the minor son for the grant of maintenance in their favour. The trial court allowed the said application vide Order dated 15.05.2014 and dismissed the application in so far as the petitioner No.1 is concerned by holding that the petitioner has been divorced by the respondent herein. The Trial court, however, awarded a monthly allowance of Rs. 3000/- as maintenance, in favour of the petitioner No.2. Dissatisfied with the order of the trial court the petitioner assailed the same in a revision filed before the Ld, Court of Sessions at Pulwama, which came to be dismissed by an order dated 30.11.2015.
02. The petitioner has challenged the order dated 30.11.2015 of the Ld. Sessions Judge, Pulwama and that of the trial Court chiefly on the ground that the entire case revolves round the plea whether the relationship of the petitioner No.1 and the respondent has ended by a valid divorce and if not what shall be its effect? The petitioner has pleaded in the petition that the alleged deed of divorce does not make any mention of the divorce but proceeds on an assumption that there exists a divorce. The parties belong to Sunni Sect and under the Islamic law a particular mode of divorce has to be adopted before the same can become effective and binding. The deed of divorce does not in law satisfy the requirement of a valid divorce. Under the Islamic Law a Muslim husband does not have an absolute, 561-A No. 279 of 2015 Page 2 of 12 unfettered or uncontrollable right to divorce his wife. There are inbuilt limitations. To do so is not in the sweet will of a Muslim husband. The Deed of divorce executed does not satisfy these requirements and, is therefore, totally invalid. The respondent labors under an erroneous belief that he has divorced the petitioner which is a fallacious one. The courts below have not appreciated the context in which a Muslim husband can divorce his wife. The Courts below have acted in contravention of the judgements of the Apex Court delivered on the subject and, therefore, both these orders require to be set aside.
03. Heard and considered.
04. The entire gamut of controversy raised herein this case as is repeated here is whether, or not, the divorce by which it is alleged that the petitioner No.1 ceased to be the wife of the respondent is a valid one. Both the courts below, that are, the Trial Court and the Court exercising the revisional jurisdiction have held that the petitioner No.1 cannot seek maintenance from the respondent as she no longer continues to be his wife on the face of the divorce having been pronounced on her. Both the courts below have in one voice stated that the respondent herein has proved the factum of divorce and, therefore, the petitioner No.1 looses the status of being the wife of respondent. To appreciate whether the Ld. Courts below have resolved the controversy in the right perspective, the Deed of Divorce placed on the record of the trial Court file requires to be scanned and evaluated. The Deed of Divorce has been executed on the 19th day of November 2012 by the executant, 561-A No. 279 of 2015 Page 3 of 12 that is, the respondent herein and the relevant excerpts thereof are reproduced below verbatim:-
02. That as already stated hereinabove that the actions and behavior of the said lady was against the principle and guidelines of Muslim Personal law and was persuaded by the executant to be true, devoted Muslim wife towards the executant.
03. That the said laid in any case whatsoever has not changed herself nor her actions which were against personal law and despite the fact the executant has requested her several times to change her behavior and attitude and to remain as an obedient and faithful Muslim wife but the said Mst. Safiya faled to follow requests of the executant. The executant tried his best to keep the marriage tie intact but the said Mst. Safiya is not ready to live with the executant and all the efforts of the executant went in vain. The said Mst. Safiya in turn has instituted a petition U/s 488 CrPc against the executant which has been disposed of by way of a compromise, but the said Safiya has filed to follow the terms and conditions of the said compromises, besides so many settlements have been done by the respectable persons of the localities, but all in vain, so the executant out of his own free will with cool mind without any force, fraud, coercion or undue influence has pronounced Talak in pursuance of Muslim Personal Law.
04. That today the executant without any force or fraud misrepresentation has pronounced Talak to the said lady namely Mst. Safiya.561-A No. 279 of 2015 Page 4 of 12
05. That the said lady Mst. Safiya is no more the wife of executant and has already been paid meher at the time of Nikah and onwards. The maintenance as under
law has also been given to the said lady and said lady is within her rights to remarry to any other person of her choice after the period of Iddat. The marriage tie between the executant and Mst. Safiya comes to an end by virtue of this divorce deed, the said Mst. Safiya is henceforth free to live anywhere where she desires and to contract 2nd marriage with any person to whom she likes so.
05. Looking at the contents of the Deed of Divorce, 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 561-A No. 279 of 2015 Page 5 of 12 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."
12. 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 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 561-A No. 279 of 2015 Page 6 of 12 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 561-A No. 279 of 2015 Page 7 of 12 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."
06. Looking at the instant petition from the perspective of the law laid down above 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 state anywhere 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 Talak in a single setting. The husband cannot seek pretense and an excuse to get rid of his wife so long as she is faithful and dutiful. The respondent herein has executed the deed of divorce to even the scores with the petitioner No.1., who filed a petition seeking maintenance from him. 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 Jaiuddin Ahmad v. Anwara Begum reported in 7 (1981) 1 Gauhati LR 358 and latter speaking for the Division Bench in Rukia Khatun v. Abdul Khalique Laskar reported 8 (1981) 1 Gauhati LR 375 observed that the 561-A No. 279 of 2015 Page 8 of 12 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 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 561-A No. 279 of 2015 Page 9 of 12 from the Calcutta and Bombay views which, in their opinion, did not lay down the correct law.
07. As already stated the respondent has pronounced an instant divorce on the petitioner No.1 which shades it under the cover of a Triple Talak which is not a valid one in the eyes of law. The law laid down in the case of "Shayara Bano & Ors v. Union of India & Ors." reported in "2017 (4) JKLT 1 (SC)", elucidates this and it provides as under:-
"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 561-A No. 279 of 2015 Page 10 of 12 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 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."
08. 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 561-A No. 279 of 2015 Page 11 of 12 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.
09. In view of the above analysis the order dated 30.11.2015 passed by the Ld. Sessions Judge, Pulwama in File No. 15/Revision and the order of the Court of the Ld. Chief Judicial Magistrate, Pulwama dated 15.05.2014 passed in File No. 29/N by which grant of maintenance has been refused to the petitioner/wife are quashed and the matter is remanded to the trial Court for reconsideration in light of what has been stated herein above.
10. Disposed of along with connected MPs.
561-A No. 279 of 2015 Page 12 of 12