Andhra HC (Pre-Telangana)
Syed Maqsood vs State Of A.P. And Anr. on 18 June, 2002
Equivalent citations: AIR2003AP123, 2002(2)ALD(CRI)517, 2002(2)ALT(CRI)327, AIR 2003 ANDHRA PRADESH 123, 2002 (2) ALD(CRL) 517, 2002 (2) ANDHLT(CRI) 327 AP, (2002) 2 ANDHLT(CRI) 327
Author: Bilal Nazki
Bench: Bilal Nazki
JUDGMENT Bilal Nazki, J.
1. This is a reference made by the learned single Judge of this Court who has found himself not able to follow a Judgment of Division Bench of this Court reported in Syed Jamaluddin v. Valiam Bee, 1975 (2) APLJ 20 : (1975 Cri LJ 1884). The reasons for not following this judgment are the judgment of various other High Courts. We have gone through those judgments and we do not find any ground to come to a conclusion that the law laid down by the Division Bench of this Court in Syed Jamaluddin v. Valiam Bee (1975 Cri LJ 1884) (supra) needs reconsideration and we find ourselves in agreement with the law laid down by the Division Bench of this Court.
2. The question referred to Division Bench by the learned single Judge is. "whether even if the fact of divorce is true, whether it would be invalid and cannot be acted upon on the ground that it was effected by the husband on unreasonable grounds and that it was not proceeded by any efforts for reconciliation". The learned single Judge referred to various judgments of other High Courts and views of some academicians and he was of the view that the effort to reconcile was a precondition for pronouncement of divorce by a husband. The facts of the case before the learned single Judge reveal that the wife filed an application under Section 125 of the Code of Criminal Procedure before the Magistrate's Court claiming maintenance for herself and for her child. The husband put up a defence that he had divorced his wife by triple pronouncement of 'talaq' on 3-7-1995 in presence of elders viz. Mohd. Moulana and Ahmed Hussain. He also pleaded that the said fact was reduced into writing and the said talaqnama executed by the husband was sent to the house of the wife intimating her about the talaq. The elders intimated the same to the wife, but the wife and her parents refused to receive Mehr amount and also the maintenance for the iddat period. Thereafter the husband made a publication in the Rehbar-e-Telengana daily newspaper on 1-8-1995. The husband had sent a demand draft in the name of his wife drawn on Andhra Bank, Banswada on 3-8-1995 towards Mehr amount of Rs. 2051/- and for three months' iddat period maintenance of Rs. 600/- @ Rs. 200/- p.m. A letter was sent by registered post, but neither the demand draft was accepted nor was the letter accepted. The Magistrate held that divorce as pleaded by the husband was not proved and granted maintenance to the wife and the child. In revision the learned Sessions Judge decided the issue as to whether the plea of divorce in the counter filed by the husband would operate as divorce between the spouses from the date of filing of the counter. The order passed by the Magistrate on 4-9-1997 in M.C. No. 3 of 1995 was quashed by the learned Sessions Judge. The learned Sessions Judge held that the divorce pleaded was not valid under Mohammedan Law. The basis for his finding was that before the husband could exercise his right to effect divorce it must be proved that there was an attempt for making reconciliation which is a prerequisite under Muslim Law. In support of this view the learned Sessions Judge relied upon the judgment of the Madras High Court reported in Saleem Basha v. Mumtaz Begam, 1999 (1) ALD (Cri) 182 : (1998 Cri LJ 4782). The learned Judge of Madras High Court had relied upon a judgment of the Gauhati High Court. The Gauhati High Court had quoted a passage from the book "Islamic and Comparative Law Quarterly." While noting the Judgments in Ahmad Kasim v. Khatun Bibi, AIR 1933 Cal 27; A. Yousuf v. Sowramma, ; Fuzlunbi v. K. Khader Vali, ; Zeenat Fatema, 1993 (2) Crimes 853 : (1995 AIHC 416) (Gauhati); Rashid v. Md. Iqbal Anwar and M. Rahiman v. Sabina Khatoon, 1994 (3) Crimes 236 : (1994 Cri LJ NOC 217) (Cal) and also the judgment of the Division Bench of this Court in Syed Jamaluddin v. Vallan Bee (1975 Cri LJ 1884) (supra), the learned single Judge framed two questions for consideration. They are, (1) Whether an unequivocal statement in the counter filed by the respondent in the proceeding for maintenance filed against that he has effected divorce with the wife would in itself operate as divorce or not according to Muslim Law ?
(2) Even if that operates as divorce or the fact of divorce is true, whether it would be invalid and cannot be acted upon on the ground that it was effected by the husband on unreasonable grounds and that it was not preceded by any efforts at reconciliation ?
After discussing the judgments of various other High Courts and the judgment of the Division Bench of this Court, the learned single Judge found that he was in agreement with the view of the Madras High Court in Saleem Basha v. Mumtaz (1998 Cri LJ 4782) (supra).
3. It is well known through Hadith and I Holy Quran that divorce is acceptable only as a necessary evil. It is also true that Holy Quran and Hadith make it obligatory to make efforts for reconciliation before Talaq as pronounced. But in our view, if those efforts are not made, the power of Talaq does not get diluted. The power of Talaq is absolute and it would be in fitness of things if it was pronounced after reconciliation failed. But if a person divorced without trying to reconcile, that itself shows that the relations are at a point of no return. The reconciliation presupposes a mental state in which both parties are ready to explore the possibility of living together. If one party, is adamant to leave the other, reconciliation itself would be fruitless. Therefore, whenever a person divorces his wife without an effort to reconciliation it shows his state of mind and in such a case it would appear that the person had already decided to pronounce the divorce and as such the reconciliation would be an exercise in futility. In the present case also the record disclosed that the husband has already remarried, therefore, in such a case reconciliation would not have been otherwise possible. Considering the whole law on the subject including the judgment of the Privy Council the Division Bench of this Court in Syed Jamaluddin v. Valian Bee, 1975 Cri LJ 1884 at Pp. 1889-90) held.
"21. For all the reasons stated, we have no hesitation to hold that notwithstanding the failure of a Mohammedan husband to prove his allegation that he had divorced his wife some years or months ago, or the statement made by him to the effect that he had divorced his wife earlier being found to be false, nevertheless it would operate as an acknowledgment of divorce as from the date on which such clear and unambiguous statement was made in a notice issued by him to his wife or a pleading or an affidavit filed by him in a Court proceeding to which his wife was a party. The husband need not prove the form of talaq adopted by him. Such declaration, irrespective of the form of Talaq, would be complete, irrevocable and effective from the date of the filing of the pleading or affidavit or the communication of the notice and he would not be liable to maintain her any longer except for the period of Iddat. We, therefore, prefer to accept the view expressed by A.D.V. Reddy, J. in K.A. Mohiuddin v. Waheeda Bi (1970) 1 Andh WR 234 as correct and overrule the contrary view taken by Mohammed Mirza, J. in Imam Saheb v. Hajju Bee (1970) 1 And WR 138 which does not appear to be correct.
22. Applying the principles enunciated in the aforesaid decisions to the facts of the present case, we have no hesitation to hold that the statement in the counter made by the petitioner's husband before the Magistrate's Court that he had already divorced his wife, the 1st respondent herein, operates as a declaration of divorce as from the date of the filing of such counter, notwithstanding his failure to prove or establish the truth and correctness of his divorcing his wife earlier. The declaration of his intention to divorce his wife was made in writing. But such declaration was not made in the presence of the wife or the elders of the community and, therefore, the husband has to prove his intention to divorce his wife. On the facts of this case, we do not find any difficulty in inferring the clear intention of the husband to divorce his wife; The declaration of the husband, divorcing his wife would be effected only when it is communicated to the wife. The wife is a party to the proceeding before the Magistrate, where, in unambiguous language, the husband has indicated his intention to divorce his wife by making a specific averment in the counter filed by him contesting the claim of his wife for maintenance under Section 488, Cr.P.C. In the circumstances, the statement made by the husband must be deemed to have been known to the wife as she is a party to the proceeding in which such declaration has been made by her husband. This fact alone would be sufficient to reject the contention of the wife that the petitioner continued to be her husband even after the filing of the counter entitling her to claim maintenance from him. The 1st respondent herein would cease to be the wife of the petitioner from the date of his filing the counter and, therefore, he is not liable to maintain her thereafter except for the period of Iddat. The maintenance awarded by the trial Court in respect of the son and daughter of the petitioner and the 1 st respondent would stand and the order awarding maintenance to the 1st respondent would be set aside with a modification that she would be entitled to maintenance till the period of iddat and not thereafter. The principal question is therefore answered in the affirmative and the divorce would be effective from the date of the filing of the counter by the petitioner-husband to the application by the wife before the Magistrate for maintenance under Section 488, Cr.P.C."
4. For these reasons, we do not find ourselves in agreement that the judgment of the Division Bench of this Court in Syed Jamaluddin v. Valian Bee (1975 Cri LJ 1884) (supra) needs reconsideration. The reference is replied accordingly.