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1 - 6 of 6 (0.25 seconds)Shamim Ara vs State Of U.P. & Anr on 1 October, 2002
6. The only thing to be further considered in
this case is whether the divorce alleged to have been
effected by the husband by pronouncement of talaq on
23-7-1999 is proved or not. The mere pronouncement of
talaq three times even in the presence of the wife is not
sufficient to effect a divorce under Mohammadan Law. As
held by the Supreme Court in Shamim Ara's case (2002 (3)@@
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KLT 537 (SC), there should be an attempt of mediation by@@
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two mediators; one on the side of the husband and the
other on the side of the wife and only in case it was a
failure that the husband is entitled to pronounce talaq
to divorce the wife. The marriage between the appellant
and the respondent was on 20-9-1998. After two months of
joint living the appellant went abroad. According to the
wife, she was compelled to leave the marital house on
account of the ill-treatment and demand for additional
gold ornaments and mental cruelty. To prove talaq the
appellant-husband was not examined. As already observed
earlier, the father who is the power of attorney holder
is not competent to give evidence as to the circumstance
and the manner in which talaq was pronounced. Though it
is stated by Pw.1 that talaq was pronounced in the
presence of Aboobakcer, Alavikunju and Basheer, none of
them was examined in court. The husband was admittedly
working in Jiddah on 23-7-1999. Though it was argued
that the information regarding talaq was conveyed through
post, no document was produced in support of the same.
A. Yousuf Rawther vs Sowramma on 24 June, 1970
The
Supreme Court has also approved the view of the learned
Judge and jurist, V.R.Krisha Iyer, J., of this Court in
Yousuf Rawther v. Sowramma (1970 KLT 477) holding that@@
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it is a popular fallacy that a Muslim male enjoys, under
the Quaranic Law, unbridled authority to liquidate the
marriage. The Holy Quran expressly forbids a man to seek
pretexts for divorcing his wife, so long as she remains
faithful and obedient to him. Justice Krishna Iyer has
referred to various authorities to come to the conclusion
that divorce was permissible in Islam only in case of
extreme cases and where reconciliation has failed.
Section 498A in The Indian Penal Code, 1860 [Entire Act]
Kotambiyakath Pathu Kutti Umma And Ors. vs Nedungadi Bank Ltd. And Ors. on 8 March, 1937
As early as in 1937, the Madras High
Court in Kutti Umma v. Nedungadi Bank Ltd., Calicut (AIR@@
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1937 Madras 734) also found that the doctrines of Shafi@@
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School are found among the Mappilas of South Malabar
generally. In Mulla's Principles of Mohammadan Law, in
paragraph 28, it is stated as follows:
M. Abdul Karim vs P.K. Nabeesa And Ors. on 29 October, 1987
887), Pareed Pillay, J., as His Lordship then was,@@
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noticed that in the plaint in that case it was not stated
that the parties belong to Shafi sect. But it was
asserted in the replication field by the plaintiff that
they and defendant follow Shafi School. It was observed
that majority of Muslims in Kerala follow Shafi School.
So far as this State is concerned Hanafis are only in the
minority. Judicial notice of the above position was
taken by the learned Judge and it was found that there
was ample evidence in the case that the parties followed
Shafi School. When judicial notice is taken of the fact
that majority of the Muslims in Kerala follow Shafi
School, we do not understand as to why there should be a
presumption so far as the Muslims in Kerala are concerned
that they are Hanafis; and the necessity to plead and
prove that the parties belonged to Shafi sect, when alone
a decree for arrears of maintenance can be granted. In
this case, it is important to note that when the
plaintiff claimed arrears of maintenance there was no
contention in the written statement filed that the
parties belonged to Hanafi sect and therefore the
plaintiff cannot claim arrears of maintenance. It was
only in the proof affidavit of the power of attorney
holder of the appellant that it was stated that the
parties belonged to Hanafi sect. When Rw.1 was examined,
no attempt was made to bring out as to which sect the
parties belonged to. The appellant was not examined in
court. The question still arises as to how far the
evidence of the power of attorney can be relied on and
can be treated as a substitute for the evidence of the
appellant himself. As held by the Supreme Court in
M.P.Rural Agrl.E.O.Assn. v. State of M.P. (2004 (2)@@
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KLT 265 (SC), the power of attorney can give evidence@@
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only in respect of acts done by him in the exercise of
powers granted by the instrument, but he cannot depose
for the principal in respect of the matter on which the
principal alone can have personal knowledge. In the
absence of sufficient pleadings to raise an issue on the
particular sect to which the parties belonged to and an
issue raised in that respect, it may not be proper to
defeat the claim for maintenance on such technical
contentions. It is to be noticed that the appellant is
claiming a special exemption from the general law of the
land. It is, no doubt, true that though generally a
neglected wife is entitled to maintenance if the personal
law of the parties is otherwise the husband may be
entitled to resort to the personal law. But such claims
must be beyond doubt. If as noted in this case the
majority of Muslims in Kerala especially in South Malabar
are Shafis, we are of opinion that it will be most unjust
to start with a presumption that they are Hanafis and in
the absence of pleading and proof, to hold that neglected
wife is not entitled for arrears of maintenance. We are
of opinion that Justice Pareed Pillay was fully justified
in taking judicial notice of the fact that Hanafis in the
State are only in the minority and majority of the
Muslims in Kerala follow Shafi School. This is supported
by the observation in the Madras District Gazetteers
(Malabar), Volume 1, page 188 wherein it is stated that
the Mappilas belong to the Shafi School of the Sunni Sect
of Mohammadans.
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