| CITATION | 2002 Cr LJ4726 (SC) |
| DATE OF JUDGEMENT | 01/10/2002 |
| COURT | SUPREME COURT OF INDIA (SC) |
| PETITIONER | SHAMIM ARA |
| RESPONDENT | Respondent 1:- STATE OF U.P.Respondent 2: ABRAR AHMED |
| BENCH | R.C. LAHOTIP.VENKATARAMAN REDDI. JJ |
INTRODUCTION
The goal of marriage is to maintain a relationship in which all of life’s responsibilities are equally divided between the parties. The failure of the marriage lies in the individuals involved. It would be like queering the pitch to permit males to just declare their divorce from their wives by saying the word “talaq” without any previous notification or attempts at reconciliation. A path out of an uncomfortable, unhappy marriage should be available, but only after the proper process of law.
The Supreme Court in this case ruled that a mere plea of talaq in response to a wife’s request for maintenance cannot be interpreted as a pronouncement of talaq and that the husband’s obligation to provide for his wife does not end this correspondence. Talaq must to be expressed in accordance with the Quranic commandment in order for it to be considered significant
FACTS OF THE CASE
- In accordance with Muslim Shariyat Law, Shamim Ara, the appellant, and Abrar Ahmad, the respondent no. 2, were married at some point in 1968. There were four sons born outside of wedlock. On April 12, 1979, appellant, on behalf of herself and for her two minor children, filed an application under Section 125 Cr.P.C,alleging that respondent no. 2 had abandoned her and been unkind to her two little children. The learned Presiding Judge of the Family Court in Allahabad declined to award the appellant any maintenance by decision dated 3.4.1993 on the grounds that she had already been divorced by the respondent and was hence not entitled to any maintenance.However, one of the appellant’s sons received maintenance payments of Rs. 150/-per month while he was still a minor; the other son became a major while the case was pending.
- In his written response dated 5.12.1990 to the Section 125 Cr.P.C. application, respondent no. 2 refuted every allegation included in the application. He argues, among other things, that he divorced the appellant on 11.7.1987, and that ever since, the two had no longer been married. He also claimed protection behind the Muslim Women (Protection of Rights on Divorce) Act, 1986 and he argued that since respondent no. 2 had bought the appellant a house instead of Mehar (Dower), the appellant was not entitled to support.
- No specifics of the divorce were pled other than the bare assertion that was stated hereinabove.. The appellant vehemently denied ever having been divorced.
- Respondent no.2 said in the witness box that he had divorced the appellant on November 7, 1997, at 11 a.m., in front of Mehboob and four or five other neighbors. He said that he had not given any money for support to any of the four children or the appellant since 1988.
- Although it wasn’t mentioned in the written statement, the divorce that was allegedly granted to the appellant by him was a triple talaq. In a ruling dated 3-4-1993, the Family Court addressed and sustained a peculiar divorce narrative that went much beyond the grounds presented by Respondent 2. The learned presiding judge discussed an affidavit dated August 31, 1988, purportedly made by Respondent 2 in a civil complaint, the specifics of which are not available from the case file at this time, but which makes it apparent that the complainant was not a party. The learned Judge came to the conclusion that as the complainant had been separated, she was not entitled to any conservation.
- A revision was preferred by the appellant to the High Court. The High Court determined that the divorce that Respondent No. 2 allegedly granted the appellant was not provided in the appellant’s presence and that Respondent did not convey the information to her. But with the respondent number 2 in this case filing the written statement, the communication would be finished on 5.12.1990. The appellant was therefore found to be entitled to maintenance from 1.1.1988 to 5.12.1990 (the latter date being the one on which reply to application under Section 125 Cr.P.C. was filed by the respondent No.2 in the Court) whereafter her entitlement to have maintenance from respondent no.2 shall cease. The figure of maintenance was appointed by the High Court at Rs.200/.
- The appellant has filed this appeal by special leave.The sole matter up for determination is whether or not the appellant may be considered to have been divorced and for the divorce to have been announced to them on 5.12.1990, the date on which respondent no. 2 filed their written declaration to start the proceedings.
ISSUES RAISED
- Whether the appellant can be said to have been divorced by the respondent and the said divorce has been communicated and become effective 5.12.1990, the day when the respondent submitted the written statement in these proceedings?
CONTENTIONS OF PLAINTIFF
- No Muslim holy book or sacred write down from the past makes reference to a separation of the kind recognized by the High Court and the Family Court.
- That there is still a lawful marriage between Shamim and Abrar Ahmed since the divorce was not disclosed to her.
CONTENTION OF APPELENT
- He states that since the time of the marriage he discovered his wife to be sharp, shrewd, and wicked.
- The triple talaq was a valid and necessary practice, according to the Muslim holy book, and couldn’t be in conflict with women’s rights.
- There are no arguments or proof that a compromise attempt was made before to the talaq, nor are there any grounds supported for its legitimacy
JUDGEMENT
The Judges were of the opinion that:
Both judges agreed that the talaq must be said in order for it to be effective in the verdict. “Pronounce” refers to the actions of declaring, , articulating, formalizing, and uttering rhetorically. There is no evidence that the talaq occurred on 11.7.1987. The written statement’s petition and its communication to the wife through the delivery of a copy on 5.12.1990 are what the High Court has upheld as talaq.
We are very certain that a simple admission made in the written statement that a divorce was granted at some point in the past does not, by itself, constitute talaq on the day the wife receives a copy of the written statement. In order to prove the talaq pronouncement on 11.7.1987, respondent No. 2 should have presented proof. If he was unable to support the plea mentioned in the written statement, the plea should have been deemed unsuccessful.
Both the judges weren’t agreed with the stance taken in the decided cases mentioned by Mulla and Dr. Tahir Mahmood in their specific commentaries, where a bare assertion of prior talaq made in the written statement, though unsupported, has been accepted as evidence of talaq ending the marriage as of the written statement’s filing date.
When a written statement is filed with the court and a copy is given to the wife, the husband’s claim of a prior divorce cannot in any way be interpreted as a declaration of talaq against the wife on that day. The affidavit dated 31.8.1988, which was filed in a prior legal case but was not inter parte, contained a self-serving declaration by respondent no. 2, and as such, it was not relevant or valuable enough to be admitted into evidence.
The appeal is granted for the grounds mentioned above. The parties’ marriage remains intact on 5.12.1990, and respondent No. 2’s obligation to provide maintenance does not terminate on that day either. Until the duty is fulfilled in line with the law, respondent No. 2 will be responsible for maintenance payments. Respondent No. 2 will pay the expenses of this appeal.
CONCLUSION
The complicated Shamim Ara case brings up significant questions regarding gender equality and the field of persuasion.
As ordained by the Holy Quran the talaq must be for a valid reason and be preceded by efforts at reconciliation between the husband and wife.
For the same, two arbiters—one from the husband’s family and one from the wife’s—must be present. Talaq may be uttered if all other attempts are unsuccessful.
REFERENCES
https://wrcaselaw.files.wordpress.com/2012/12/shamamin.pd
https://indiankanoon.org/doc/332673/
This Article is written by Simran Haider Pathan, student at Balaji Law College of Pune, Maharashtra, Intern at Legal Vidhiya.
