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30.Let us consider now specific cases of husband taking the plea of having divorced his wife:
(a) In the written statement filed before the Court the husband takes a plea of divorce given on some date in the past and files a copy of the Talaqnama and/ or divorce certificate with such a written statement.
(b) The husband does not say anything about the divorce in the written statement and while in the witness box takes a plea of divorce given on some earlier date and produces in support a copy of the Talaqnama and/ or divorce certificate as issued by the Qazi.
(c) In the written statement the husband takes a plea that he has given divorce to the claimant on any date earlier in the presence of a Qazi or in the presence of the father or in the presence of two or three witnesses professing Islam.
(d) In his written statement the husband takes a plea of divorce given on an earlier date in the presence of two or three witnesses and one of them does not profess Islam.
(e) In the written statement or while in the witness box the husband invokes his right of Talaq under the Ahsan or Hasan form.
(If) In the written statement the husband takes a plea that on a given date he had pronounced the triple Talaq of divorce in the presence of witnesses, though in the absence of the wife, and the words addressed to the wife were repeated three times as follows:
"I divorce my wife "Smt." forever and render her Haram for me."
And, in support thereof, copy of the Talaqnama or deed of divorce or certificate of divorce is produced.
31.On the proceedings initiated by the wife before a competent Court the divorce allegedly given by the
husband in the first three forms (a) to (c), if disputed about its factum, cannot be valid and operative. Such a divorce will be fictitious and inoperative unless the husband proves his plea of any of these forms of Talaq before the Court by leading evidence. Mere taking such plea, even in a statement on oath, does not by itself operate as a divorce from the date it is so made because there are conditions precedent to such a form of Talaq and it is required to be exercised during a particular period. The husband is required to discharge his burden of proving that he had no physical relationship with the wife during the waiting period and the reasons for exercising such a right are required to be putforth. The factum of conciliation or arbitration is also one of the conditions preceding the process of Talaq in any of these forms namely "Ahsan" and "Hasan".
In the (d) form even if the factum of divorce is proved it cannot be held to be a valid divorce as one of the witnesses does not belong to the Mahomedan religion and as per the Holy Quran it is a condition precedent that both witnesses (men) must profess Islam and in case one witness is a man the other witnesses must be two women and all of them must profess Islam.
Any breach in this regard results into an invalid Talaq as being contrary to the command of the Holy Quran, even though the factum of divorce may be established before the Court.
In the fifth form i.e. (e) it would not be enough for the husband to invoke his right of giving Talaq under the "Ahsan" or "Hasan" form before the Court by way of written statement or while in the witness box and under oath. It is not in each case that the husband and wife (the two litigating parties before the Court) are staying under different roofs and similarly the wife may take a plea that the husband did not observe the condition precedent in that regard.
The burden then falls on the husband to prove these conditions of abstinence from sexual intercourse. In addition, he has to set out before the Court the reasons for such a divorce and whether he had sought the help of arbitrators for reconciliation at any time before the wife approached the Court before he filed his written statement or before he appeared in the witness box to take such a plea of Talaq.
However, in the last contingency the divorce becomes effective and irrevocable forthwith and the wife becomes "Haram" for the husband. If the husband claims to have exercised his right of divorce in the form of Biddat/ Bidai or Rajai, in the written statement on an earlier occasion the divorce is complete and irrevocable provided the factum of due Talaq given in this form, on an earlier occasion, is duly proved before the Court. The words uttered for giving Talaq in these two forms or in any of them are required to be proved before the Court and mere statement of the husband or the proof in support thereof by way of Talaqnama or deed of divorce or certificate of divorce will not be sufficient to prove the factum of having exercised this power sometimes in the past. This view is inconsonance with the law laid down by the Privy Council in Anisa Khatuns case (supra).
32.We accordingly hold, with profound respect, that the view taken in Jaitunbis case (supra) does not meet the requirements of the Mahomedan Personal Law for a valid and irrevocable divorce. The plea taken by the husband in his written statement that he had given Talaq at an earlier date shall not amount to the dissolution of marriage under the Muslim Personal Law from the date on which such a statement was made unless such a Talaq is duly proved and it is further proved that it was given by following the conditions precedent viz. that of arbitration/ reconciliation and for valid reasons and more so when the mode of divorce alleged to have been given in the "Ahsan" or "Hasan" form. The factum of divorce is required to be proved, including the conditions precedent therefor, by evidence both oral and documentary, when the same is disputed by the wife before a competent Court of law. We agree with the view taken subsequently by a Division Bench of this Court in the case of "Saira Banu" (supra) and further lay down the clarifications, as set out herein above. We hold that the view taken by the Gauhati High Court in the case of Mast. Rukia Khatun (supra) and Zeenat Fatima Rashid (supra) is more in tune with the ethos of Islamic Personal Law. However, if the husband relies upon the Biddat or Rajai form of Talaq given at an earlier occasion either in his written statement or in his oral depositions, he is required to prove the factum of the same by leading evidence before the Court, if disputed by the wife.
33.We answer the reference in the above opinion and direct the office to place the Petition alongwith the connected matters, if any, before the appropriate Single Bench.
34.We record our appreciations for the able assistance rendered by both the amicus curiae.
[B.H.MARLAPALLE,J.]
[N.V.DABHOLKAR,J.]
Posted on 2002-08-28
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