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12. So far as oral talak is concerned, there is no prescribed form. If the words are express or well-understood as implying divorce, no proof of intention is required. If the words are ambiguous, the intention must be proved. It is also not necessary that the talak should be pronounced in presence of wife or even addressed to her and talak expressed in the absence of wife becomes effective as against her when it is communicated to her.

13. Talak in writing: A talaknama may only be the record of the fact of an oral talak or it may be the deed by which the divorce is effected. The deed may be executed in the presence of the Kazi or of the wife's father or of other witnesses. The deed is said to be in the customary form if it is properly superscribed and addressed so as to show the name of the writer and the person addressed. If it is not so superscribed and addressed, it is said to be in unusual form. If it is in customary form, it is called "manifest" provided that it can be easily read and comprehended. If the deed is in customary form and manifest the intention to divorce is presumed. Otherwise the intention to divorce must be proved. In the undernoted case the talaknamas were held to be customary and manifest and so operative without proof of intention. On the other hand if the deed is in the form of a declaration not addressed to the wife or any other person, it is not in customary form and is not effective if there was no intention to divorce. If the talaknama is customary and manifest it takes effect immediately even though it has not been brought to the knowledge of the wife. There are different modes of oral talak, viz. (1) Talak ahsan, which consists of single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat; (2) Talak hasan, which consists of three pronouncements made during successive period between menstruations, no intercourse taking place during period between menstruations. The aforesaid two forms are considered to be regular forms. However, there is third form known as Talak-ul-biddat or talak-i-badai which consists of, (i) three pronouncements made during a single tuhr either in one sentence, e.g. "I divorce thee thrice", or in separate sentences, e.g. "I divorce thee, I divorce thee, I divorce thee"; or (ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage, e.g. "I divorce thee irrevocably" although Talak-ul-biddat or talak-i-badai are irregular forms, they arc considered legal.

Section 312 of Mulla's Mahomedan Law shows as to when talak becomes irrevocable. A talak in the ahsan mode becomes irrevocable and complete on the expiration of the period of iddat whereas a talak in the hasan mode becomes irrevocable and complete on the third pronouncement irrespective of the iddat and a talak in the badai mode becomes irrevocable immediately it is pronounced, irrespective of the iddat.

14. We have referred to these different forms only to show that even though it is unilateral power of the husband to pronounce a talak, the law prescribes certain modes of effecting even oral talak. Whether in a particular case there is divorce or not, will always depend on establishment of the facts which constitute the same. It will not be a question of fact alone, but a mixed question of law and fact. The first part being, whether talak has, in fact, taken place and the other part of the question would be, whether that is in accordance with the principles of Mahomedan Law. As pointed earlier, the question as to how a talak can be effected and whether in the facts and circumstances of a given case, the talak, as alleged by the husband was in fact effected and whether that is legal and valid, are the questions which are required to be decided in the facts and circumstances of each case.

15. From the points indicated in the earlier part of the judgment, the scope of discussion is limited. In order to substantiate his case, reliance has been placed on different authorities by learned Counsel appearing for the husband and it is necessary to refer to these different authorities. Learned Counsel for respondent-husband also draw our attention to certain part of commentary contained in the Hedaya, Vol. I, translated by Charles Hamilton. The said commentary, however, refers to different modes of talak and number of examples are quoted therein. In view of the fact that we are not deciding the issue as to how a talak can be effected legally, it is not necessary to refer to the various instances quoted in the Hedaya. All that we can say is that even the Hedaya also gives certain modes of oral talak and number of examples have been quoted. A very old judgment of the Privy Council is useful for reference. In Ma Mi and Anr. v. Kallander Ammal, , the wife claimed to be the sole heir of her husband and contended that the first defendant falsely claims to have been his lawful wife and that the second defendant falsely claims to be the legitimate son of her deceased husband. The defendants contended that prior to his death the deceased had divorced the plaintiff according to the Mahomedan Law. The reference to this judgment is made only to point out that ultimately the Privy Council also found that it was necessary to consider whether there was any evidence on record sufficient to prove that the deceased on the occasion when the document was drawn up and executed, used the words which would be sufficient to constitute oral divorce under the Mahomedan Law. There was evidence of two witnesses on record showing that the deceased had uttered the word "talak" three times and had also shown the document of talaknama to the witnesses that it was a document of divorce. After considering the entire evidence on record, the High Court had come to a conclusion that the evidence on record was not sufficient to establish what the deceased said, to enable them to hold whether the words amounted to constitute divorce or merely indicated his intention of divorcing her by execution and transmission of the talaknama. Confirming the decree of the High Court, the Privy Council held that the divorce, as contended, was not proved by the evidence on record and the High Court was justified in coming to such a conclusion.

"10. We respectfully submit that we are unable to agree with the decisions in the above-referred cases for the following reasons. Written statement is a pleading. Pleading is one thing and proof is another. Pleading is formal allegations by the parties of their respective claims and defences to provide notice of what is to be expected at trial. Proof is establishment of a fact by evidence of matters before the Court of legal Tribunal. Where the parties are in dispute as regards a material fact, an averment in the pleading does not constitute evidence, as what is stated in the pleading is recital of past event which is required to be proved. Under the Evidence Act, if a material fact pleaded is not proved, it follows that the Court considers or believes that the fact does not exist. Therefore, averment in the pleading cannot be used in favour of the maker. This being the position, the statement made by the husband in his pleading or deposition that he has divorced his wife is recital of past event and if talak pleaded is not proved such statement shall be of no consequence. In that view of the matter, if statement made by the husband that he had divorced his wife in his pleading or deposition is considered as an acknowledgement of divorce by talak, it also amount to furnishing or providing evidence of talak, which is against the rule of pleading and proof..."