Rajasthan High Court - Jodhpur
Imran Rafeeq vs Abhilasha Jain on 7 April, 2022
Bench: Sandeep Mehta, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 475/2022
Imran Rafeeq S/o Shri Rafeeq Ahmad, Aged About 38 Years, R/o
Sarvoday Basti, Behind Old Railway Colony, Bikaner. (Rajasthan)
----Appellant
Versus
Abhilasha Jain W/o Shri Imran Rafeeq, Aged About 38 Years, R/o
8 Bahubali Colony, Bohra Ganesh Road, Dhulcoat Chouraha,
Udaipur (Rajasthan)
----Respondent
For Appellant(s) : Mr. Virendra Acharya
For Respondent(s) : -
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI
Order
DATE OF ORDER ::: 07/04/2022
BY THE COURT : (Per Mr.Farjand Ali, J.)
The instant Civil Misc. Appeal has been preferred by the appellant Imran Rafeeq under Section 19 of the Family Courts Act, 1984 against the judgment and decree dated 21.12.2021 passed by the learned Judge, Family Court No.1, Udaipur in Civil Misc. Case (Downloaded on 26/12/2022 at 01:30:45 AM) (2 of 10) [CMA-475/2022] No.31/2020 whereby, the learned Judge has allowed the divorce petition filed by the respondent-applicant (wife).
Succinctly stated the facts of the case are that parties to the lis are born and brought up according to distinct religious beliefs. They studied together in a college. Their close friendship transformed into a love affair and thus they got married on 07.07.2009 according to the rites and rituals of Muslim customs. They spent their married life with full mirth and merriment for few years and were blessed with a baby boy from their wedlock. After spending some time together, owing to some ideological and temperamental differences, relations between them turned sour and in the year 2014, they decided to live separately. The respondent kept the baby with her at her parental house at Udaipur. Over the period, their relationship became more strained and thus, on 05.08.2020, the estranged wife moved a petition before the Family Court, Udaipur seeking a decree of dissolution of marriage.
It was pleaded in the divorce petition that the marriage was solemnized between them as per the Muslim rites and rituals and the Shariah law. On 07.07.2009, the 'Nikah' was performed at Ajmer. Because of their strained relationship and negligible possibility of living together or continuing the marital ties, the spouses were living separately since the year 2014. It was further averred in the petition that as per the Muslim rites and rituals and the Shariah law, the appellant had given 'Talaq' to her and for that, a deed of divorce dated 30.08.2018 had been executed between them and now, there remained no possibility of re-union or re- (Downloaded on 26/12/2022 at 01:30:45 AM)
(3 of 10) [CMA-475/2022] establishing conjugal relationship between them and, therefore, she made a prayer for issuance of decree of dissolution of marriage.
A reply to the divorce petition was filed on behalf of the appellant wherein the factum of marriage which was performed according to the Muslim rituals and the Shariah law was admitted. He refuted the fact of divorce and specifically pleaded that since the respondent left his company, therefore, irked by her attitude, he sent a notice of divorce but the same was not intended to give her divorce rather it was sent only with a view to warn her. It was further pleaded in the reply that in order to mellow down the disputes and thaw the friction both the parties went to Mount Abu from 27.10.2018 to 29.10.2018 and stayed together. He specifically pleaded that the third 'Talaq' was never given to his wife, which is a condition precedent for divorce as per the prevailing law and, therefore, in absence of the third 'Talaq', the marriage between them has not been dissolved; thus he prayed for dismissal of the petition.
On the basis of the pleadings of the parties, the learned trial Court framed two issues. The onus to prove the issue No.1 was cast upon the applicant-respondent. Thereafter, the respondent- applicant was examined as PW-1 and the deed of divorce dated 30.08.2018 was tendered as evidence and was marked as Ex.1. The appellant-non-applicant was examined as NAD-1. After hearing the counsel for the parties and careful examination of the evidence adduced by the parties in support of their respective claims; the learned Court below adjudicated the issue No.1 in favour of the (Downloaded on 26/12/2022 at 01:30:45 AM) (4 of 10) [CMA-475/2022] respondent-applicant, and accordingly the divorce petition has been allowed and a decree of divorce has been awarded in favour of the respondent-applicant vide judgment and decree dated 21.12.2021, which is assailed before this Court.
We have heard the arguments advanced by the appellant's counsel Shri Virendra Acharya and have gone through the impugned judgment and decree of divorce.
Indisputably, the respondent professed the Muslim religion and changed her name as "Tamanna Parveen @ Abhilasha Jain" and on 07.07.2009, the parties solemnized marriage according to the Muslim rituals and the Shariah law. They lived together till February, 2014. However, owing to discord of common petulance and ideological and temperamental differences, they started living separately. After leaving the company of the appellant, the respondent went to her parents' house at Udaipur, where she is residing till date. It is reflected from the pleadings of the parties that since February, 2014 to the year 2018, they lived separately and never cohabited. It is even admitted by the appellant that he sent a letter dated 28.06.2018 in the form of first 'talaq' and then on 30.07.2018 in form of second 'talaq', however, with a pretense that the same were not sent with the intent to dissolve the marriage; rather, the said letters were sent only with a view to warn or caution her. The appellant was examined as NAD-1 in the Family court. In cross examination, he admitted his signatures on Ex.1 and Ex.3A and also candidly conceded that at the time of appending signatures upon these documents, he was not under any fear or coercion. He (Downloaded on 26/12/2022 at 01:30:45 AM) (5 of 10) [CMA-475/2022] also admitted (in his cross examination) the factum of sending the letters dated 28.06.2018 and 30.07.2018 as first and second 'Talaqs'. The document Ex.1 was executed in the presence of two witnesses, namely Kaushal Pandey and Yusuf Khan, and has a clear recital of dissolution of marriage solemnized in between the parties.
Before proceeding further, this Court deems it appropriate to go through the law of divorce by which the parties are governed and the concept of three consecutive 'talaqs'.
'Talaq' is an Arabic word and its literal meaning is "To release". Under Muslim Law, 'Talaq' means repudiation of marriage by the husband though that has been considered to be the most detestable before the God besides all the permitted things. According to Sunni Law, a 'Talaq' may be oral or in writing (Talaqnama). No specific formula or use of any particular word is required to constitute a valid Talaq. Any expression which clearly indicates the husband's desire to break the marriage is sufficient to dissolve the marriage through Talaq. In a landmark judgment delivered by the Constitution Bench of Hon'ble The Supreme Court in the case of Shayara Bano Vs. Union of India reported in AIR 2017 9 SCC 1 (SC) the practice of triple Talaq was declared to be unconstitutional. "Triple Talaq" means pronouncing or uttering the word "Talaq" three times in one sitting without the consent of his wife. However, the case in hand does not come within the purview of "Triple Talaq".
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(6 of 10) [CMA-475/2022] The fact that the appellant-non-applicant thinks that he can send a notice of divorce upon his will just to warn the wife and that it would not be counted as a 'talaq' does not sit well with this court. Unilateral divorce, at the will of husband, is provided for in the two other forms of talaq under Muslim customs but nowhere in the Holy Quran or in any religious scripture is it mentioned that a man can divorce his wife without reason. On the contrary, the Quran suggests that if there are no pressing or serious reasons that form the cause for divorce, then no man can rationalise or defend a divorce. This view has been supported by Hon'ble the Supreme Court in Shamim Ara v. State of Uttar Pradesh reported in (2002) 7 SCC 518, whereby it has been held that the spirit of the Quran or the Prophet's words reveals that divorce is an option to embrace only in extreme circumstances and should emanate from a voice of reason. It is a recourse to be taken after attempts at reconciliation and not one to be used as a warning or in jest. The Supreme Court's intention in the glittering judgment of Shayara Bano (supra) was to enunciate the importance of gender equality with regard to institution of marriage. A woman's rights should not require chaperonage in such basic matters in today's times but as we progress towards making of a society where the fundamental rights of each individual, irrespective of gender, religion, caste or sexual orientation or any other basis for differentiation, are protected, the Courts need to define these rights in incontrovertible terms.
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(7 of 10) [CMA-475/2022] The matter before this Court is having conspicuous trends of a different form of Talaq, which is known as 'Talaq-e-Hasan' (proper Talaq). The pre-requisite formalities under this form are as under:-
(a) The husband has to make a single declaration of Talaq in a period of Tuhr (Tuhr means period between two mensuration);
(b) In the next Tuhr, there is another single pronouncement for the second time. It is significant to note that the first and second pronouncements may be revoked by the husband; if he desires to do so, either expressly or by resuming conjugal relations. Here, the words of Talaq become ineffective as if no Talaq was made at all.
(c) But, if no revocation is made after the first or second declaration, then lastly the husband has to make the third pronouncement in the third period of Tuhr (purity). As soon as this third declaration is made, the third Talaq becomes irrevocable and the marriage dissolves.
In the case in hand, there is oral as well documentary evidence to prove the fact that the first Talaq was sent on 28.06.2018, the second on 30.07.2018 and the last on 30.08.2018. Even the appellant admits execution of these documents. Admission is the best evidence against the person making it. As envisaged under Section 58 of the Indian Evidence Act, fact admitted need not be proved. The appellant admitted in cross examination that he was (Downloaded on 26/12/2022 at 01:30:45 AM) (8 of 10) [CMA-475/2022] not under any threat or coercion when he appended his signature over the document. There is exclusion of oral evidence against the documentary as the rule of, "Best Evidence", would prevail.
The execution and communication of letters dated 28.06.2018 & 30.07.2018 have not been questioned on behalf of the appellant which are in the form of first and second 'Talaq'; the only assertion has been that the third Talaq was never communicated to the respondent/applicant and thus it is vehemently contended that in absence of communication of third Talaq, which is the condition precedent for completion of divorce, no decree of dissolution can be passed. We have minutely pondered over this submission also. The findings of the learned trial judge is based on the documents, namely the letters dated 28.06.2018, 30.07.2018 & 30.08.2018, construing the same as First, Second and Third Talaq. It is also to be made clear that the period for which the married couple went to Mount Abu starts from 27.10.2018, which was after the third talaq was communicated by the husband and hence it would not count as an attempt at reconciling before completion of the divorce. The respondent had clearly explained before the Trial Court that she had come for the sole purpose of ascertainment of visitation rights so that her child can meet his father and not to resume conjugal relations with the appellant. Thus, it is manifested from the above narration that after communication of first and second talaq, there was no revocation whatsoever in explicit or implicit manner.
As observed above, the appellant admits his signatures along with signatures of two witnesses on the document dated (Downloaded on 26/12/2022 at 01:30:45 AM) (9 of 10) [CMA-475/2022] 30.08.2018. On perusal of the same, in unequivocal terms; it reflects the communication of Talaq and as such the ingredients essential to constitute a valid 'Talaq' as per Mohammedan Law are conspicuously present in the case, therefore, we find no force in the submissions advanced on behalf of the appellant.
As a matter of fact, after first and second Talaq, the appellant never revoked or withdrew it either through spoken words or by way of a written note as well as no concrete evidence has been adduced to convince the Court regarding re-
establishment/reinstatement of conjugal relationship. As per the mandate of Talaq-ul-Hasan, it was incumbent upon the husband to send a letter of revocation of first and second Talaq or to prove the fact that he had revoked the same through any other mode. The first and second Talaq are permitted to be revoked after resuming the conjugal relationship, however, even for the sake of arguments, no evidence has been produced in this regard. Otherwise also, the parties are living separately since the year 2014, now more than seven years have elapsed and it appears that no sincere endeavors have been made for their re-union; thus, it has become an irretrievable break down and, therefore, the findings arrived at by the learned Judge, Trial Court, require no interference of this Court.
In view of the above observation, the factum of Talaq has duly been proved and thus, the learned Judge, Family Court, Udaipur has not erred while accepting the petition for dissolution of marriage (Nikah) and by issuing a decree of divorce dated 21.12.2021, which (Downloaded on 26/12/2022 at 01:30:45 AM) (10 of 10) [CMA-475/2022] requires no interference of this Court. The submissions advanced by the appellant are devoid of merit and thus deserve to be rejected.
Accordingly, the appeal is hereby dismissed.
(FARJAND ALI),J (SANDEEP MEHTA),J.
40-Mamta/-
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