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Lordship then was) observed:
"The interpretation of a legislation, obviously intended to protect a weaker section of the community, like women, must be informed by the social perspective and purpose and, within its grammatical flexibility, must further the beneficent object. And so we must appreciate the Islamic ethos and the general sociological background which inspired the enactment of the law before locating the precise connotation of the words used in the statute. ... ...
Since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and Arbis. The soul of culture - law is largerly the formalised and enforceable expression of a communitys culture norms cannot be fully understood by alien minds. The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions ...
... Indeed a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce. ..."
"It is a popular fallacy that a Muslim male enjoys, under the Quranic law, unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretext for divorcing his wife, so long as she remains faithful and obedient to him. "If they (namely women) obey you then do not seek a way against them" (Quran IV: 34).
In the case of "Sri Jiauddin Ahmed V/s Mrs. Anwara Begum" [(1981) GLR 358] Baharul Islam, J. (as His Lordship then was) dealt with a case of seeking maintenance by the wife under section 125 of the Code and in the written statement the husband, though admitted the marriage, had stated that he had pronounced Talaq on 10th October, 1976 and the same was registered at Qazis office on 12th October, 1976 at Dihrugarh. He also stated that the wife was paid all sums payable under the Mahomedan Law on the day of divorce. The first point that was considered by the learned Judge was whether there had been a valid Talaq of the wife by the husband under the Muslim law. The learned Judge recorded his opinion in the following words:
"14.The modern trend of thinking is to put restrictions on the caprice and whim of the husband to give Talaq to his wife at any time without giving any reason whatsoever. This trend is in accordance with the Quranic injunction noticed above, namely, that normally there should be avoidance of divorce and if the relationship between the husband and the wife becomes strained, two persons - one from each of the parties should be chosen as arbiters who will attempt to effect reconciliation between the husband and the wife; and if that is not possible the Talaq may be effect. In other words, an attempt at reconciliation by two relations - one each of the parties, is an essential condition precedent to "Talaq"."
...
"16.In the instant case the petitioner merely alleged in his written statement before the Magistrate that he had pronounced Talaq to the opposite party; but he did not examine himself, nor has he adduced any evidence worth the name to prove "Talaq".
There is no proof of Talaq, or its registration. Registration of marriage and divorce under the Assam Muslim Marriages and Divorces Registration Act, 1935 is voluntary, and unilateral. Mere registration of divorce (or marriage) even if proved, will not render valid divorce which is otherwise invalid under Muslim Law.
"... ... In my view 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 wifes family the other from the husbands. If the attempts fail, Talaq may be effected.
In support of the above view, the learned Judge also relied upon the view expressed by Krishna Ayer, J. in the case of A. Yusuf Rawther (supra). An identical issue again came tobe referred to the Division Bench of the Gauhati High Court in the case of "Must. Rukia Khatun V/s Abdul Khalique Laskar" [ (1981) 1 G.L.R. 375] and again Baharul Islam, C.J. (as His Lordship then was), speaking for the Division Bench reiterated and confirmed the view he had taken in the case of Jainuddin Ahmed (supra).
In the case of Rukia Khatun (supra) an application for maintenance was filed under section 125 of the Criminal Procedure Code, 1973 and in opposing the same, though the husband admitted the marriage, but took a plea that he had divorced the Applicant on 12th April, 1972 by executing a Talaqnama and had paid the dower money to her. When the application came up before the learned Single Judge the decision in the case of Jiauddin Ahmed was relied upon but the husband prayed for reconsideration of the issue again by a larger bench and, therefore, the reference was made to the Division Bench. In addition to the views expressed in Jiauddin Ahmeds case (Supra) Baharul Islam, C.J., speaking for the Division Bench, added the following views:
"The first point to be decided, is whether the opposite party divorced the Petitioner. The equivalent of the word "divorce" is "Talaq" in Muslim law. What is valid "Talaq" in Muslim law was considered by one of us (Baharul Islam, J., as he then was) sitting singly in Criminal Revision No. 199/77 (supra). The word "Talaq" carries the literal significance of "freeing" or "the undoing of knot". "Talaq" means divorce of a woman by her husband. Under the Muslim law marriage is a civil contract. Yet the rights and responsibilities consequent upon it are of such importance to the welfare of the society that a high degree of sanctity is attached to it. But inspite of the sacredness of the character of the marriagetic, Islam recognises the necessity in exceptional circumstances of keeping the way open for its dissolution."
The learned Judge quoted the words in Sura IV Verse 35 from the Holy Quran and observed:
"From the verse quoted above, it appears that there is a condition precedent which must be complied with before the Talaq is effected. The condition precedent is when the relationship between the husband and the wife is strained and the husband intends to give "Talaq" to his wife he must choose an arbiter from his side and the wife an arbiter from her side, and the arbiters must attempt at reconciliation, with a time gap so that the passions of the parties may calm down and reconciliation may be possible. If ultimately conciliation is not possible, the husband will be entitled to give "Talaq". The "Talaq" must be for good cause and must not be at the mere desire, sweet will, whim and caprice of the husband.
It must not be secret." In para 11 of the said judgment, the Division
Bench sumed up its final opinion as follows:
"11.In our opinion the correct law of "Talaq" as ordained by Holy Quran is: (i) that "Talaq" must be for a reasonable cause; and (ii) that it must be preceded by an attempt at reconciliation between the husband and wife by two arbiters, one chosen by the wife from her family and the another by the husband from his. If their attempts fail, "Talaq" may be effected.... ..."
The Division Bench disagreed with the law laid down by the Calcutta High Court in ILR 59 Calcutta 33 and this Court in ILR 30 Bombay 537.
19.Again the Gauhati High Court (Division Bench), in the case of "Zeenat Fatema Rashid V/s Md. Iqbal Anwar" [1993 (2) Crimes 853] was called upon to deal with a similar issue. The wife had filed an application under section 125 of Cr.P.Code against her husband on 13th August, 1990 for maintenance for herself and her minor child. Husband opposed the claim by filing a written statement and took a defence that he had divorced the claimant on 31st August, 1990 i.e. after she had approached the Family Court. The Court held that there had been a divorce duly effected and claim for maintenance would be determined under section 3 of the 1986 Act. The questions that arose for consideration before the Division Bench were (a) whether there had been a divorce duly effected; (b) whether a Mahomedan husband can divorce his wife at his whim and caprice; (c) whether divorce by Talaq was proved. The Division Bench referred to the earlier enunciations in the case of Sarabai (supra) Asha Bibi (supra) Ahmed Qasim Mulla (supra) Jiauddin Ahmed (supra) and Rukia (supra). "(a) A Mahomedan husband cannot divorce his wife at his whim and caprice; (b) under the Mahomedan Law marriage, though recorded as a civil contract between a man and a woman, they become husband and wife after the solemnisation of the marriage and their respective rights and obligations are regulated by the rules under relevant law.
This being the position, marriage is the basis for social organisation and foundation of legal rights and obligations. The modern concept of divorce is also that the matrimonial status should be maintained as far as possible; (c) If a Mahomedan husband divorces his wife as at his whim and caprice it would not only be a spiritual offence but it would also affect the divorce and a Mahomedan husband cannot divorce his wife at his whim or caprice, as divorce must be for a reasonable cause and it must be preceded by pre-divorce conference to arrive at a settlement. The husband failed to prove the alleged Talaqnama on the basis of its photostat copy. However, in the evidence of the husband he had stated that he also made pronouncement of the word "Talaq" three times. There was no evidence or material to corroborate that Talaq was effected orally.
Under the circumstances it is held that the Talaq pleaded has not been proved. There is no evidence that there was a pre-divorce conference and in that view of the matter the husband failed to prove the alleged divorce by "Talaq".
A further plea was taken on behalf of the husband that even if Talaq pleaded was not proved, the husband had stated that the wife had been divorced not only in his written statement but also in his deposition and, therefore, the divorce would be deemed to have been effected from the date of filing of the written statement or from the date of the statement on oath. The Division Bench disagreed with the view taken earlier taken in this regard in the case of "Asmat Ulla V/s Mst Khatun Unnisa, Wahab Ali V/s Qamro Bi, Chand Bi V/s Bandesha, Abdul Shakoor V/s Kulsum, and Mohammad Ali V/s Fareedunnisa for the following reasons:
"Written statement is a pleading.
Pleading is formal allegations by the parties of their respective claims and defences to provide notice of what is tobe expected at trial. Proof is establishment of a fact of evidence or matters before the Court or legal Tribunal. Where the parties are in dispute as regards the material fact, an averment in the pleadings 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 material fact pleaded is not proved, it follows that one Court considers or believe that the fact does not exist.
Therefore, averment in the pleading cannot be used in favour of the maker. This being the position, statement made by the husband in his pleading or deposition that he had divorced his wife is a recital of past event and if Talaq 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 acknowledgment of divorce by Talaq, it will be against the policy of law and it would also amount to furnishing or providing evidence of Talaq which is against the rule of pleading and proof. That apart, in view of our conclusion above that divorce must be for a reasonable cause and it must be preceded by a pre-divorce conference, if the statement made orally in evidence or in the written statement that the husband has divorced his wife in a proceeding under section 125 of Cr.P.C. will be a valid Talaq from the date of making statement cannot be sustained as it would be contrary to our conclusion.
In the case of "Moti-ur-Rahaman V/s Sabina Khatun and another" [1994 (3) Crimes 236] the wife had filed an application under section 125 before the Magistrate for maintenance. By order dated 15th September, 1990 the said application was allowed. On 3rd May, 1992 the husband filed an application under section 3 and 7 of the 1986 Act before the Magistrate contending that he had given divorce to the wife according to Mahomedan Law on 15th October, 1990 and an affidavit to that effect was sworn. It was also stated that a copy of the declaration was sent to the wife. This application came to be rejected by order dated 4th September, 1992 which was challenged before the High Court. The learned Judge disagreed with the husband that he had divorced or given Talaq to the claimant wife on 15th October, 1990 and the reasons in support of this view are stated in para 13.
"13.Even though under Section 308 of the Mohammedan Law (vide Mullas principles of Mohammedan Law) any Mohammedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause, a Division Bench of the Gauhati High Court in the decision in Zeenat Fatema Rashid V/s Md. Iqbal Anwar, has held that a Mahomedan husband cannot divorce his wife at his whim or caprice and divorce must be for a reasonable cause and it must be preceded by a pre-divorce conference to arrive at a settlement, with which I fully concur. Though under the aforesaid Section 308 of the Mohammedan Law the husband is not required to assign any cause for the divorce, but there must be a reasonable cause for the same, which should be preceded by a predivorce conference so as to make an endeavour for reconciliation between the parties, if possible. But no reasonable cause has been disclosed by the husband in the relevant proceedings for the alleged divorce. There is neither the nearest and faintest whisper by him that the alleged divorce on 15.10.1990 had been preceded by a pre-divorce conference to arrive at a settlement. That being so, even most charitably, assuming for the sake of argument that the husband had divorced the wife on 15.10.1990, the alleged divorce could not be held to be according to Muslim Law. ... ..."
In the case of "Saleem Basha V/s Mrs. Mumtaz Begam" [1998 Cri.L.J. 4782] S.M.Sidickk, J., speaking for the Madras High Court also took the same view as was taken by the Calcutta High Court in the case of Moti-ur-Rahaman (supra) after referring to the long list of enunciations, as referred to herein above. The husband had taken a plea that he was not liable to pay maintenance for the period subsequent to the divorce on 30th November, 1992 except for the Iddat period and the fact of divorce was communicated to the wife, Jamat and Mutawalli of the Mosque by registered post. The wife filed affidavit in the Court repudiating averments and she claimed that she was not informed of the divorce and the Talaq pronounced by him was a false allegation.
One of the issues framed by the learned Single Judge of the Madras High Court was whether the Talaq pronounced by the husband on 30th November, 1992 divorcing his wife was valid under law. It was brought to the notice of the Respondent wife about the pronouncement of Talaq by her husband when he filed the petition for cancellation of maintenance on 20th July, 1995 though she was not informed about the pronouncement of Talaq by registered post, which was returned. A presumption was, therefore, drawn that the pronouncement of Talaq was informed to the wife on 30th November, 1992 and on 20th July, 1995. The Talaqnama executed by the husband in the presence of the witnesses (Exhibit P5) was on record. The reasons stated in the Talaqnama for divorce were that the wife had filed a case for maintenance and she insulted the husband and her mother-in-law as well as there were differences of opinion, as a result of which they could not run the family. The Talaqnama did not indicate that any conciliation proceeding was initiated between them at any point of time by any mediator nor it was stated therein that the husband called upon his wife to reform herself and then to run the family amicably. In his oral depositions before the trial Court the husband had stated that he divorced his wife as per Mahomedan Law by pronouncing Talaq in the presence of two witnesses on 30th November, 1992 but he did not give any reason to give Talaq. The learned Judge observed that the correct law of Talaq as ordained by the Holy Quran is that (a) Talaq must be for reasonable cause, (b) it must be preceded by an attempt at reconciliation (by nominees of both the spouses), and (c) Talaq may be effected if the said attempt failed. The learned Judge entirely agreed with the view taken by the Gauhati High Court in the case of Zeenath Fatima Rashid (supra) and by the Calcutta High Court in the case of Chandbi Ex W/o Bandesha Mujawar (supra) and he held that the Talaq pronounced by the husband on 30th November, 1992 divorcing his wife was not valid under the Mahomedan Law.
Posted on 2002-08-28
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