Madras High Court
M. Shahul Hameed vs A. Salima, The Union Of India (Uoi) By Its ... on 22 November, 2002
Equivalent citations: II(2003)DMC262, AIR 2003 (NOC) 162 (MAD), (2003) 1 MAD LW 647, (2003) 2 DMC 262, (2003) 1 MAD LW 183, (2003) MATLR 531, (2003) 1 CURCC 271
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. Shahul Hameed, the first defendant, the appellant herein aggrieved by the concurrent judgments and decrees passed by the Courts below declaring that the Talaq pronounced through the letter sent by him to his wife is not valid and granting permanent injunction to the wife/plaintiff, has filed this second appeal.
2. The case of the plaintiff is as follows:
"The plaintiff A. Salima got married to the first defendant Shahul Hameed on 2.4.1978 under Muslim rites. The first defendant, the appellant herein is an Officer in the Office of the Collector of Central Excise and Customs, Madurai, the third defendant, which is under the control of the second defendant Union of India. Initially, they were living happily. The plaintiff was subjected to various medical tests to find out whether she got conceived. She was also subjected to operation. Since she became weak, she requested her husband to get transfer from Tirunelveli near Salem so that she could get treatment from Dr. Joseph, who belongs to Chennai and visits Saraswathy Nursing Home at Salem periodically. He did not agree for that. In the meantime, the plaintiff received a letter dated 30.11.1987 containing Talaq pronouncement. After sending the same, the first defendant has been making arrangement for second marriage. He has also requested the second and third defendants to give permission to solemnise second marriage. The letter dated 30.11.1987 is vague and as such, the contents of the said letter would not constitute a valid Talaq. Hence, she filed the suit seeking for declaration that the Talaq pronounced in the said letter is not valid and for permanent injunction restraining the first defendant from solemnising second marriage and also restraining the other two defendants from granting any permission for the same."
3. The suit was contested by the first defendant contending that after marriage, there were so many instances that caused misunderstanding between the spouses and the plaintiff did not show due respect to her husband/first defendant and after taking true steps for conciliation and since the conciliation talks failed, the first defendant sent a letter dated 30.11.1987 containing pronouncement of Talaq, attested by the witnesses, which is in accordance with the Muslim Shariat Act and consequently, the plaintiff would not be entitled to declaration or permanent injunction.
4. According to the defendants 2 and 3, they are not necessary parties and the first defendant did not file any application for getting permission and if such a permission is sought, the same will be considered in accordance with law.
5. On the above pleadings, necessary issues were framed. Neither the plaintiff nor the first defendant did not choose to adduce any oral evidence. The plaintiff filed only two documents, namely Exs.A1 and A2. Ex.A1 is the xerox extract of Nikkah Register relating to the marriage held between the plaintiff and the first defendant and Ex.A2 is the letter dated 30.11.1987 containing Talaq pronouncement sent by the first defendant to the plaintiff.
6. The trial Court on a scrutiny of the plaint, written statements and Exs.A1 and A2, decreed the suit in favour of the plaintiff.
7. Challenging the same, the first defendant filed an appeal before the lower appellate Court, which in turn confirmed the decree in regard to declaration and permanent injunction, but however, the lower appellate Court held that the defendants 2 and 3 are unnecessary parties and as such, permanent injunction would be in respect of the first defendant alone.
8. Not satisfying with that, the first defendant has filed this second appeal.
9. At the time of admission, the following substantial questions of law formulated by this Court on 1.7.1992:
1) Whether the lower appellate Court was right in the view it took that the contents of Ex.A2 would not constitute a valid talaq nama and that the respondent continued to be the wife of the appellant?
2) Is the substantial question of law that arises for consideration in this second appeal?
10. I have heard the counsel for the parties.
11. It is contended by the counsel for the appellant that the contents of Ex.A2 would clearly indicate the intention of the husband to pronounce Talaq and as such, the judgments rendered by both the Courts below are wrong. But, on going through the judgments impugned, it is noticed that both the Courts would hold that the Talaq has not been pronounced thrice through the letter and as it is not a triple Talaq, the said Talaq is not valid. This finding, in my view, cannot be said to be wrong.
12. As a matter of fact, the Supreme Court in SHAMIM ARA v. STATE OF U.P.(2002(4) CTC 377) would observe that 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 and if the attempts fail, the Talaq may be effected. Therefore, the pronouncement of Talaq should be effective by establishing the above materials.
13. In this case, no evidence has been adduced by the husband either to prove that there was reconciliation attempt or to prove that the Talaq pronouncement was attested by the persons from both the family or from both the Jamaths or to show three Talaqs were pronounced through the said letter. Both the Courts would correctly hold that the letter does not indicate the pronouncement of triple Talaq. Therefore, the decree passed by the Courts below is correct.
14. At the end, the learned counsel for the appellant would submit that the decree passed in favour of the plaintiff should not affect the right of the appellant to approach second and third defendants for applying permission as he is entitled to marry four wives under Shariat Act.
15. This question does not arise in this case, since the lower appellate Court would modify the decree that the second and third defendants are unnecessary parties in the suit and as such, the permanent injunction would be as against the first defendant alone.
16. With this observation, the second appeal is dismissed. No costs.