Dagdu S/O Chotu Pathan, Latur Vs. Rahimbi Dagdu Pathan, - Court Judgment

Excerpt:
criminal procedure code, 1973 - section 125 - maintenance to wife and children - written statement filed by husband - plea taken by the husband that he had given divorce (talaq) to his wife in the presence of qazi and two witnesses - one witness was muslim and the other was a hindu - mere pronouncement of talaq not sufficient - husband required to satisfy the preconditions of arbitration for reconciliation and the reasons for talaq and required to prove them when the wife disputes the factum or effectiveness or legality of talaq before a court of law - mere statement in writing before the court not sufficient to held that the husband has divorced his wife -if any of the witness does not profess islam the talaq given in his/her presence is invalid and inoperative.;in the written form of.....marlapalle, j.1.the petitioner was married to the respondentno. 1 rahimbi; and they begot three children from thesaid wedlock. however, the respondent no. 1approached the judicial magistrate, first class atlatur by an application under section 125 of thecriminal procedure code for maintenance for herselfand for the three children claiming that thepetitioner neglected her and the children after hemarried one khamrunbee from whom also he begotchildren. he neglected the applicants and refused tomaintain them during the last three years before sheapproached the learned magistrate.2. on receipt of summons, the petitioner appearedbefore the magistrate and filed a written statementopposing the claim made by the applicants i.e. thepresent respondent nos. 1 to 4. he claimed that hehad given.....

Judgment:

Marlapalle, J.

1.The Petitioner was married to the RespondentNo. 1 Rahimbi; and they begot three children from thesaid wedlock. However, the Respondent No. 1approached the Judicial Magistrate, First Class atLatur by an application under section 125 of theCriminal Procedure Code for maintenance for herselfand for the three children claiming that thePetitioner neglected her and the children after hemarried one Khamrunbee from whom also he begotchildren. He neglected the applicants and refused tomaintain them during the last three years before sheapproached the learned Magistrate.

2. On receipt of summons, the Petitioner appearedbefore the Magistrate and filed a written statementopposing the claim made by the Applicants i.e. thepresent Respondent Nos. 1 to 4. He claimed that hehad given Divorce (Talaq) to the Respondent No. 1 on24th February, 1996 in the presence of Qazi and twowitnesses and thereafter he had performed the secondmarriage with Khamrunbee. He also stated that one ofthe witnesses was a Muslim whereas the other one was aHindu. He, therefore, prayed that the applicationfiled under section 125 of the Criminal Procedure Codebe dismissed. This plea was rejected by the learned2nd Joint Judicial Magistrate First Class at Laturvide his judgment and order dated 21st November, 1998and the maintenance application filed by theRespondent Nos. 1 to 4 came to be allowed. Thelearned Magistrate held that the fact of Talaq must beproved and it cannot be accepted by the Court merelyon pleadings in the written statement. In thisregard, the learned Magistrate relied upon a judgmentof this Court [Single Judge] in the case of 'MehtabbiW/o Shaikh Sikandar V/s Shaikh Sikandar' : 1995(3)BomCR433 . This order, passed by the learnedMagistrate, has been impugned in the instant Petition.

3. When this petition came up for hearingalongwith Criminal Writ Petition No. 308 of 1999before the learned Single Judge (Vagyani, J.) on 7thFebruary, 2001 it was noted that a Division Bench ofthis Court [A.V.Savant & T.K.Chandrashekhara Dass,JJ.]in the case of 'Jaitunbi Mubarak Shaikh V/s MubarakFakruddin Shaikh' 1993 (3) Mh.L.J. 964 had heldthat the view taken by the learned Single Judge in thecase of Mehtabbi (supra) was not a good law and when aplea of Talaq is taken in the written statement filedbefore the Court, the wife is deemed to have beendivorced from the date such a statement was made inthe written statement though the husband takes theplea of Talaq on any date earlier to the filing ofsuch a written statement and was not required to provethe factum of divorce by leading evidence before theCourt.

4. However, it appears that another Single Benchof this Court at Nagpur had also made a reference todecide the controversy as arising in view of twodifferent judgments of the Single Benches viz.

'Chandbi Ex W/o Bandesha Mujawar V/s Bandesha S/oBalwant Mujawar' : AIR1961Bom121 on one hand and'Shaikh Mobin S/o Shaikh Chand V/s State ofMaharashtra' 1996 (1) Mh.L.J. 810 on the other handand, therefore, a reference came to be made to aDivision Bench at Nagpur, in the case of 'SairabanoW/o Mohd. Aslam V/s Mohd. Aslam Ghulam Mustafa Khan'1999 (3) Mh.L.J. 718 though similar reference wasalready answered by the Division Bench at Mumbai[A.V.Savant and T.K.Chandrashekhara Dass, JJ.) in thejudgment dated 22nd April, 1999 the said opinion wasnot placed before the Nagpur Bench which decided thesaid reference 1999 (3) Mh.L.J. 718 on 28thSeptember, 1999. The Division Bench at Nagpur[G.D.Patil and A.B.Palkar, JJ.), without referring tothe view of the earlier Division Bench in JaitunbiMubarak's case (supra) held that the factum of divorce(Talaq) as stated in the written statement wasrequired tobe proved and, therefore, the law laid downin the case of Mehtabbi (supra) and Shaikh Mobin(supra) was correct and the view taken in Chandbi'scase (supra) was erroneous. The learned Single Judgeof this Bench (Vagyani, J.) noted the controversybetween the views taken by two Division Benches in thecase of Jaitunbi (supra) and Sairabanu (supra) and,therefore, directed the office to place the petitionbefore the learned Chief Justice for His Lordshipsconsideration to make a reference to the Full Bench toresolve the controversy. Accordingly, the learnedChief Justice was pleased to make a reference andconstitute a Full Bench by order dated 15th March,2002. This petition has thus been placed before usfor answering the reference so as to settle thecontroversy.

5. In the case of Jaitunbi (supra) the wife hadmoved an application under section 125 of the CriminalProcedure Code and the maintenance amount came to befixed at Rs.60/- per month by order dated 26th June,June, 1981 passed by the learned Magistrate.

Subsequently, the wife filed maintenance applicationNo. 297 of 1986 under section 127 of the Code forenhancement of the maintenance amount. In reply tothis application the husband filed his writtenstatement on 1st November, 1987 and contended, interalia, that he had already given Talaq to the claimanton 29th October, 1987 and, therefore, in view of theprovisions of The Muslim Womens (Protection of Rightson Divorce) Act, 1986 the application filed in theMagistrates Court was not maintainable. The DivisionBench framed four issues for consideration and thefirst two issues are relevant in deciding thisreference and, therefore, they are reproduced, asunder:

[i] In proceedings for maintenance instituted by aMuslim wife, if a Muslim husband takes a pleain his written statement that his marriage hadbeen dissolved at an earlier date in the Talaqform, even assuming that the fact of suchdissolution at an earlier date is not proved,whether the filing of the written statementcontaining such a plea of divorce in the Talaqform amounts to the dissolution of marriageunder the Muslim Personal Law from the date onwhich such a statement was made.

[ii] Whether the law laid down by this Court inChandbi Ex Wife of Bandesha Mujawar V/sBandesha S/o Balwant Mujawar : AIR1961Bom121 still holds good or whether it requiresreconsideration in view of the two contrarydecisions of this Court in (a) Mehtabbi W/oSk. Sikandar V/s Shaikh Sikandar S/o Sk.

Mohd. reported in 1995 (3) BCR 433 and (b)Shaikh Mobin S/o Shaikh Chand V/s State ofMaharashtra reported in 1996 (1) Mh.L.J. 810.

6. In reply to the first issue the Division Benchheld that the pronouncement by a husband in hiswritten statement that he has divorced his wifeearlier though such a fact is not proved..... wouldoperate as a divorce in the Talaq form at least fromthe date of filing of the written statement and such acontention made in the written statement would operateas an acknowledgment of a divorce by him and adeclaration of divorce from the date on which thestatement was made. In reply to the second issue theDivision Bench held that the view taken in Chandbi'scase did not require reconsideration and the viewtaken subsequently in Mehtabbi's case and ShaikhMobin's case was over ruled.

7. In the case of Sairabanu (supra) theapplication for maintenance under section 125 of theCode was allowed by the learned Judicial MagistrateFirst Class at Akot and, therefore, Criminal RevisionApplication No. 164 of 1995 was filed challenging thesaid order. While resisting wives claim the husbandmade a statement in the witness box that he haddivorced his wife and had sent Talaqnama to her byregistered post which she refused to accept. Theenvelope containing the Talaqnama with the postalendorsement 'refused' was produced before the learnedMagistrate who found that the factum of the husbandshaving given divorce to the wife was not proved, theplea of divorce was not taken in the written statementby the husband but such a plea was taken for the firsttime by oral depositions in the witness box. TheDivision Bench at Nagpur framed the following fiveissues:

(1) Whether in case of parties governed byMahomedan Law, it is sufficient for a husbandto resist claim of his wife for maintenancebeyond the period of Iddat merely by making anaverment in the Written Statement or in anyapplication filed in the Court contending thathe has given her the divorce?

(2) Whether even without pleading divorce, thehusband can resist successfully the claim ofhis wife for maintenance by making a statementin the witness box to the effect that he hasdivorced her?

(3) Whether such mere assertion either in thepleading or in the witness box amounts to anacknowledgment of divorce given earlier by thehusband and he is not required to prove tohave given divorce in accordance withMahomedan Law sometime prior to date of suchan assertion?

(4) Whether even otherwise such assertion eitherin the pleadings or in the witness box or insome application filed in Court by the husbandby itself amounts to divorce in accordancewith Mahomedan Law from the date of suchassertion if not from an earlier date?

(5) Whether even if it is found that the statementregarding divorce given earlier is found to befalse, still the statement in the Courtproceedings can be taken as acknowledgment ofdivorce or even otherwise a fresh declarationof divorce?

The Division Bench held that (a) pleadings is formalallegation by the parties of their respective claimsand defences to provide a notice of what is to beexpected at the trial and proof is establishment offact by leading evidence, (b) there is no authority tothe proposition that mere allegation in the pleadingby itself should be taken either to be a proof of thefact alleged or even otherwise tobe independently as adeclaration of existence of cessation of legalrelationship between the parties; (c) pleadings inCourts of proceedings or any statement made in thewitness box or in any application is for the purposeof making out a case of parties and evidence is ledfor supporting the case already pleaded; (d) the forumof judicial proceedings cannot be used for declaringexistence or cessation of legal relationship betweenthe parties and, therefore, mere contention in thewritten statement or in any application or in plaintby itself cannot be accepted tobe either anacknowledgment of divorce already given specially evenwithout deciding upon the validity and legality of theearlier divorce. It can never be said mean a freshdeclaration of divorce from the date of such assertionor even from the date stated in the proceedings; (e)the Court proceedings should be confined to theassertion of facts by parties and to the proof offacts so asserted or alleged and not for any otherpurpose specially for acknowledgment of declaration ofdivorce. The rights and interest of the partiescannot be jeopardized by a unilateral statement madeduring the course of proceedings by other party eitherorally or in writing.

The Division Bench, therefore, over ruled theview taken in Chandbi's case (supra) and accepted theview taken in Mehtabbi's case and Shaikh Mobin's case(supra) as the correct law without referring to theview taken by the Division Bench in the Case ofJaitunbi (supra).

8. So as to assist us in resolving thecontroversy under reference we had appointed ShriGulam Mustafa and Shri Khader as Amicus Curiae andShri Khader argued for the Petitioner whereas ShriGulam Mustafa opposed the Petition. Both the amicuscuriae are well known for their scholarship in MuslimPersonal Law and we have heard them at length inaddition to the learned counsel for the respectiveparties.

9. The Mahomedan Law has mainly four differentsources. The Holy Quran is the primary source and itrepresents the Gods will communicated to the Prophetthrough angel Gabriel. The second source is Ahadisand Sunni. It is claimed that after the death ofProphet the story of occurrences concerning theProphet given by eye witness are known as Ahadis whichmeans a tradition or precept and Sunnis is thepractice of the Prophet. The third source is Ijmaawhich consists of new problems faced after the deathof Prophet and decisions thereon by the concernedjurists. The fourth source is Qiyas which, in brief,is a process of deduction by which law of text isapplied to cases which though not covered by thelanguage are covered by the reason of text which istechnically called as Illiat or effective cause.

10. There are three different schools of thought in regardto the Mahomedan society and those are Sunnis, Shiasand Mustahids.

11. The All India Muslim Personal Law Board haspublished a Compendium of Islamic Laws and Part-IItherein deals with the law of divorce. Thepreliminary note on 'Divorce in Islam', reads thus:

'Marriage is a blessing, and when thisrelationship is established it is meant tosubsist and be lasting. It is through thisrelationship that God grants children.

Divorce terminates marital relationship andleads to several problems in the family.

Divorce in itself is, therefore, anundesirable act. However, it is also truethat if there is no temperamentalcompatibility between the parties, or theman feels that he cannot as husband fulfilthe womans rights, or because of mutualdifference of nature Gods limits cannot bemaintained, keeping the marriage intact insuch situations or to compel the parties bylegal restrictions to continue in themarital bond may be more harmful for thesociety. The Shariat, therefore, regardsdivorce as permissible although it is anundesirable act.

Thus, uncontrolled use of divorcewithout regard to the restrictionsestablished by the Shariat is a sin.

Similarly, imposing such restrictions on theright of divorce due to which the man iscompelled not to divorce the wife despitehis feeling that he cannot live a happy lifewith her is also not lawful.

The decision whether a man can live ahappy life with his wife or not and whetherdivorce is necessary or not relates to thesentiments of the husband. The decision inthis regard can, therefore, be taken by thehusband himself. If the man is sure that hecannot have cohabitation as per rules, e.g.,if he is impotent, or cannot fulfil maritalobligations, or any other such situation isthere, it will be necessary for him topronounce a divorce. To divorce the wifewithout reason only to harm her, orrevengefully due to the non-fulfilment ofhis unlawful demands by the wife or herguardians, and to divorce her in violationof the procedure prescribed by the Shariat,is haram (absolutely prohibited).'

12. The Holy Quran (English translation to themeanings and commentary ...... and edited by thePresidency of Islamik Research IFTA was also placedbefore us by Shri Gulam Mustafa and our attention tothe following provisions on divorce, was invited:

225.Allah will notCall you to accountFor thoughtlessnessIn your oaths,But for the intentionIn your hearts, 252And He isOft-forgivingMost Forbearing.

226.For those who takeAn oath for abstentionFrom their wives,A waiting for four monthsIs ordained;If then they return,Allah is Oft-forgiving,Most Merciful.

227.But if their intentionIs firm for divorce,Allah hearethAnd knouted all things 253228.Divorced womenShall wait concerning themselvesFor three monthly periods.

And it is not lawful for themTo hide what Allahhath created in their wombs,If they have faithIn Allah and the Last Day.

And their husbandsHave the better rightTo take them backIn that period, ifThey wish for reconciliation. 254And women shall have rightsSimilar to the rightsAgainst them, accordingTo what is equitable;But men have a degreeOver them 255And Allah is Exalted in Power,Wise.

SECTION 29.

229.A Divorce is only 256Permissible twice, after that,The parties should either holdTogether on equitable terms,Or separate with kindness. 257It is not lawful for you,(Men), to take backAny of your gifts (from your wives),Except when both partiesFear that they would beUnable to keep the limitsOrdained by Allah 258If ye (judges) do indeedFear that they would beUnable to keep the limitsOrdained by Allah,There is no blame on eitherOf them if she giveSomething for her freedomThese are the limitsOrdained by Allah;So do not transgress themIf any do transgressThe limits ordained by Allah,Such persons wrong(Themselves as well as others). 229230.So if a husbandDivorces his wife (irrevocably), 260He cannot, after that,Re-marry her untilAfter she has marriedAnother husband andhe has divorced her.

In that case there isNo blame on either of themIf they re-unite, providedThey feel that theyCan keep the limitsOrdained by Allah.

Such are the limitsOrdained by Allah,Which He makes plainTo those who know231.When ye divorce 261Women, and they (are about to) fulfilThe term of their (Iddat),Either take them backOn equitable termsOr set them freeOn equitable terms:But do not take them backTo injure them, (or) to takeUndue advantage; 262If any one does that,he wrongs his own soul.

Do not treat Allahs SignsAs a jest, 263But solemnly rehearse 264Allahs favours on you,And the fact that HeSent down to youThe BookAnd Wisdom,For your instructions.

And fear Allah,And know that AllahIs well acquaintedWith all things.

SECTION 30

232.When ye divorceWomen, and they fulfilThe term of their (Iddat),Do not prevent them 265From marryingTheir (former) husbands,If they mutually agreeOn equitable terms.

This instructionIs for all amongst you,Who believe in AllahAnd the Last Day.

That is (the courseMaking for) most virtueAnd purity amongst you.

And Allah knows,And ye know not.

SECTION 31

236.There is no blame on youIf ye divorce womenBefore consummationOr the fixation of their dower;But bestow on them(A suitable gift),The wealthyAccording to his means,And the poorAccording to his means;-A gift of a reasonable amountIs due from thoseWho wish to do the right thing.

SECTION 39

282. O ye who believe!When ye deal with each other,In transactions involvingFuture obligationsIn a fixed period of time,Reduce them to writing 329Let a scribe write downFaithfully as betweenThe parties: let not the scribeRefuse to write: as Allah 330Has taught him,So let him write.

Let him who incursThe liability dictate,But let him fear AllahHis LordAnd not diminishAught of what he owes,If the party liableIs mentally deficient,Or weak, or unableHimself to dictate,Let his guardianDictate faithfully,And get two witnesses,Out of your own men. 332And if there are not two men,Then a man and two women,Such as ye choose,For witnesses,So that if one of them errs,The other can remind her.

The witnessesShould not refuseWhen they are called on(For evidence).

Disdain not to reduceTo writing (your contract)For a future period,Whether it be smallOr big; it is justerIn the sight of Allah,More suitable as evidence,And more convenientTo prevent doubtsAmong yourselvesBut if it be a transactionWhich ye carry outon the spot among yourselves,There is no blame on youIf ye reduce it notTo writing.

But take witnessesWhenever ye makeA commercial contract;And let neither scribeNor witness suffer harm.

If ye do (such harm),It would be wickednessIn you. So fear Allah;For it is AllahThat teaches you.

And Allah is well acquainted.

With all things. 333[Sura II, Verses 225 to 232, 236, 282]35.If ye fear a breach.

Between them twain,Appoint (two) arbiters,One from his family,And the other from hers; 549If they seek to set things aright,Allah will causeTheir reconciliation:For Allah hath full knowledge,And is acquaintedWith all things.

128.If a wife fearsCruelty or desertionOn her husbands part,There is no blame on themIf they arrangeAn amicable settlementBetween themselves;And such settlement is best;Even though mens soulsAre swayed by greed. 638But if ye do goodAnd practise self-restraint,Allah is well-acquaintedWith all that ye do.

129.Ye are never ableTo do justiceBetween wivesEven if it isYour ardent desire:But turn not away(From a woman) altogether,So as to leave her (as it were)Hanging (in the air). 639If ye come to a friendlyUnderstanding, and practiseSelf-restraint, Allah isOft-forgiving, Most Merciful.

130.But if they separateAllah will provide abundanceFor each of them for HisAll-reaching bounty:For Allah is HeThat caret for allAnd is Wise.

[Sura IV, Verses 35, 128 to 130]

1. O Prophet!5503 When yeDo divorce women, 5504Divorce them at theirPrescribed periods, 5505And count (accurately)Their prescribed periods:And fear Allah your Lord: 5506And turn them not outOf their houses, nor shallThey (themselves) leave, 5507Except in case they areGuilty of some open lewdness,Those are limitsSet by Allah: and anyWho transgresses the limitsOf Allah, does verilyWrong his (own) soul:Thou knows not ifPerchance Allah willBeing about thereafterSome new situation. 5508

2.Thus when they fulfilTheir term appointed,Either take them backOn equitable terms 5509Or part with themOn equitable terms;And take for witnessTwo persons from among you,Endued with justice,And establish the evidence 5510For the sake of Allah. SuchIs the admonition givenTo him who believesIn Allah and the Last Day.

4. Such of your womenAs have passed the ageOf monthly courses, for themThe prescribed period, if yeHave any doubts, isThree months, and for thoseWho have no courses(It is the same):5513For those who are pregnant,Their period is untilThey deliver their burdens:And for those whoFear Allah, He willmake things easy for them. 5514[Sura : 65 verses 1, 2 and 4]

13. Chapter-XVI in Mullas Principles of MahomedanLaw deals with the subject 'divorce' and section 307gives three forms of divorce viz. (1) by the husbandat his will, without the intervention of a Court; (2)by mutual consent of the husband and wife, without theintervention of a Court; (3) by a judicial decree atthe suit of the husband or wife. When the divorceproceeds from the husband, it is called Talaq, when itis effected by mutual consent, it is called Khula orMubaraat, whereas the third form of divorce by way ofdecree at the suit of the husband or wife is called asFaskh. The first form of divorce is called as 'Talaq',the second one as 'Khula'. Talaq literally means toremove a restriction or to put an end to the marriagewith immediate or deferred effect by using any of thespecial words meant for it, whether those words areused by the husband himself or by his representative,or by the Qazi who in certain situations is regarded bythe Shariat as the husbands deputy and is empoweredto pronounce a divorce on his behalf without hisconsent. A Talaq may be effected (1) orally (by spokenwords) or (2) by a written document called a Talaqnama.

In the oral form of Talaq there are three differentmodes of Talaq viz. (a) Talaq Ahsan which consists ofa single pronouncement of divorce made during tuhr(period between menstruations) followed by abstinencefrom sexual intercourse for the period of Iddat; (b)Talaq Hasan which consists of three pronouncements madeduring successive tuhrs, no intercourse taking placeduring any of the three tuhrs (the first pronouncementshould be made during a tuhr, the second during thenext tuhr, and the third during the succeeding tuhr),and (c) Talaq-ul-biddat or Talaq-i-badai. This formconsists of (i) three pronouncements made during asingle tuhr either in one sentence, e.g., 'I divorcethee thrice, - or in separate sentences e.g., 'Idivorce thee, I divorce thee, I divorce thee' or (ii) asingle pronouncement made during a tuhr clearlyindicating an intention irrevocably to dissolve themarriage e.g. 'I divorce thee irrevocably'. A Talaqin Ahsan mode becomes irrevocable and complete on theexpiration of the period of Iddat, whereas a Talaq inHasan mode becomes irrevocable and complete on thethird pronouncement, irrespective of the Iddat; whereasa Talaq in badai mode becomes irrevocable immediatelyit is pronounced, irrespective of the Iddat. Until aTalaq becomes irrevocable, the husband has the optionto revoke it which may be done either expressly, orimplied as by resuming sexual intercourse. To utter bymouth any of the special words implying Talaq is of theessence in a Talaq. Just thinking of Talaq or silentlydeciding on it will not result into Talaq.

Talaq in writing is a written mode of Talaqreduced in a Talaqnama which may only be the record ofthe fact of an oral Talaq or it may be the deed bywhich the divorce is effected. The deed may beeffected in the presence of a Qazi or the wives fatheror of two witnesses. In the absence of words showing adifferent intention, a divorce in writing operates asan irrevocable divorce (Talaq-i-bain) and takes effectimmediately on its execution. Talaq by a delegation ispermissible and it is called as Talaq by Tafweez.

14.Written Talaq may have several forms and someof them are (a) Kitabat-e-mustabinah (legible writing),It is of two kinds -- Mustabinah Marsumah (formallegible writing and Mustabinah Ghair Marsumah (informallegible writing). Kitabat-e-mustabinah Marsumah whichis a formal divorce-deed or letter which is writtenwith a title and the addressees name. Section 5 inChapter-II of Part-II of the Compendium of Islamik Lawsdeals with conditions for effectiveness of Talaq let usrefer to these provisions.

'Section 5

(a) The man pronouncing a Talaq should besane and adult and should havepronounced the Talaq while he was awakeand conscious. Therefore, a Talaqpronounced by a person who is a minor,insane, imbecile, overwhelmed,delirious, unconscious or asleep, willnot be effective.

(b) For the effectiveness of Talaq it is,in principle, necessary that the manpronouncing it should be in his senses.

This demands that a Talaq pronounced inan inebriated condition should not beeffective. However, if a person hasunlawfully consumed an intoxicant byhis own liking and habit, his Talaqwill become effective by way ofpunishment. But if a person hasconsumed any intoxicant as a treatment,or under compulsion or strong pressure,or in ignorance, and pronounces Talaqin that state, it will not beeffective.

(c) If a person consumes something which infact is not intoxicating but because ofits unsuitability for his system hegets inebriated, a Talaq pronounced insuch condition will not be effective.

(d) It is also necessary that in thesentence used for Talaq the divorcemust have been related to the wife,either expressly or by necessaryimplication.

(e) It is further necessary that the womandivorced should be a proper object ofTalaq, i.e., she must be either marriedto the man or observing for him 'Iddat'of a revocable or irrevocable Talaqother than a triple Talaq.

Section 6 states that if a person under compulsion orduress pronounces a Talaq it will be valid if it isverbal, but not otherwise. Section 11 in Chapter-IIIspeaks of proper and improper Talaq and the first formis in section 11 whereas the second form is in section12, which read as under:

'PROPER AND IMPROPER TALAQSection 11:

There are two conditions forTalaq-e-sunnat [proper Talaq] first, in aconsummated marriage the wife should not bedivorced during menstruation and the Talaqshould be pronounced in a tuhr (periodfollowing one menstruation and preceding thenext) before having coitus in it. Second,if the marriage has been consummated, onlyone revocable divorce should be pronouncedin any single tuhr. If a man pronounces asingle revocable Talaq in a single tuhr andkeeps away from the woman till her 'Iddat isover, this will be Talaq-e-ahsan (betterdivorce). If a single revocable Talaq ispronounced before coitus in a new tuhr tillthree talaqs are over, this will beTalaq-e-hasan (good divorce). Similarly, ina non-consummated marriage pronouncing asingle Talaq even though when the wife is inmenstruation will be Talaq-e-hasan.

Pronouncing three Talaqs in three months ona minor or a woman past menopause is alsoTalaq-e-hasan.

Section 12

Talaq-e-bidat [improper Talaq]includes: in a consummated marriagedivorcing the wife during menstruation, ordivorcing her in a tuhr after coitus, orpronouncing an irrevocable divorce, orpronouncing more than one Talaq in a singletuhr - and in an unconsummated marriagepronouncing together more than one Talaq, orpronouncing more than one Talaq in a singlemonth on a minor or woman past menopause.'It is also necessary to refer to the rules of revocableand irrevocable Talaq and they are in sections 17, 18,19 and 20 and they read, as under:

'Section 17:

In a revocable Talaq the husband cantake back the wife during 'Iddat' withouther consent and without a remarriage; butafter the expiry of 'Iddat' she will becomeirrevocably divorced and can be lawfullytaken back only by a fresh marriage.

Section 18:

Revocation may be either by conduct --e.g., if the husband has had coitus, kissingand caresses with the wife --- or by spokenwords, e.g. if the husband says that he hastaken back his wife and informs her of thesame. Revocation by words is preferable inthe presence of witnesses (two men or a manand two women).

Section 19:

An irrevocable Talaq, whether expressor implied, (words of implication areexplained hereinafter) is of two kinds:bainunat-e-khafifah (minor separation) andbainunat-e-ghalizah (major separation).

Less than three Talaqs effectbainunat-e-khafifah, otherwise there will bebainunat-e-ghalizah.

Section 20:

In bainunat-e-khafifah though the wifegoes out of the marital bond but the partiesmay by mutual consent remarry during orafter the 'Iddat'. In bainunat-e-ghalizahremarriage is possible only where after theexpiry of 'Iddat' the woman has marriedanother man who has either died or divorcedher and the 'Iddat' of death or divorce hasexpired.'

Section 23:

For proposal and acceptance it isnecessary to utter such words which seem tosignify immediate establishment ofrelationship between the parties, whetherthose words affirm this meaning literally orby implication or usage and whether thelanguage is Arbic or non-Arabic -- as Nikah(marriage), Zawaj (matrimony), Biyah(marriage), Hiba (gift), Baksh dena (givingaway) Malik bana dena (make master), etc.

On the contrary, if words like Ariyat(lease) or Ijara (rent) are used, there willbe no marriage.

Section 24:

To establish a marriage it is alsonecessary that no such words are mentionedin the proposal and acceptance which signifythat the marriage is for a fixed period.

Section 30:

The parents and offspring of the groomand the bride can also be witnesses to themarriage, but it is better to have others aswitnesses.

Explanation:

If ascendants or descendants act aswitnesses, the marriage will beestablished but their evidence will notbe admissible to prove the marriage ina court and, therefore, it is better tohave others as witnesses.

15. The term 'Iddat' literally means numeration andit may be described as the period during which it isincumbent upon any woman whose marriage has beendissolved to remain in seclusion and to abstain frommarrying another husband. The abstinence is imposed toascertain whether she is pregnant by the husband so asto avoid conclusion of the parentage. The Act of 1986has defined the term 'Iddat Period' in section 2 (b)and it means in the case of a divorced woman (1) threemenstrual courses after the date of divorce, if she issubject to menstruation; (ii) three lunar months afterher divorce, if she is not subject to menstruation; and(iii) if she is enceinte at the time of her divorce,the period between the divorce and the delivery of herchild or the termination of her pregnancy, whichever isearlier.

Iddat of a divorced woman, if she menstruatesis three complete menstrual courses and if she does notdue to young or old-age it is three lunar months. Ifthe divorced woman is pregnant her Iddat period is tillthe end of pregnancy. If the Iddat does not begin onthe first day of the month, 30 days will be counted foreach month and in that case total days of Iddat will be130 in the case of death and 90 in the case ofdivorce/dissolution of marriage and mutual repudiation(Mutarakat).

16.Under the Mahomedan Law the Qazi was chiefly ajudicial officer and may be said to have dutiescorresponded to the present day judge or magistrate.

In addition, however, to his functions under theMahomedan Law, the Qazi in this country, before theadvent of the British Rule, appears to have performedcertain other duties partly of secular and partly ofreligious nature. On the advent of British Rule,judges and magistrates took the place of Qazis who, inhis judicial capacity, disappeared. However, theoffice of the Qazi was not abolished even in theBritish regime. By certain regulations passed fromtime to time the appointment of Qaki-ul-Kuzzat andQazis by the State was provided for and the performanceof non-judicial duties was recognised by law. Theduties of the Qazi, under these regulations, comprisedsome functions like celebrating marriages and presidingat divorces as well as performing various rites andceremonies.

Under these circumstances it appeared no longernecessary that the Government should appoint theseofficers. Qazis Act, 1864 was formulated and someprovisions therein raised certain difficulties and,therefore, the Qazis Act, 1880 came tobe enactedspecifying the limited duties of a Qazi.

17.Under the Wakf Act, 1954 as well as the amendedWakf Act, 1995 there is a provision for grantingcertificate of divorce and the divorce is registered atthe office of Qazahat. The certificate is in theprescribed form and it contains the columns for (1)reason of Talaq/ Khula (Divorce), (2) date of divorce/Talaq/ Khula, (3) names of witnesses with fathersname, ages, residences and occupations, signature ofdivorcer, (4) certificate of Qazi or presiding officerof the Court, (5) name of wife with fathers name, age,residence and occupation etc.

18. Having considered the relevant provisions, asapplicable to Talaq under the Muslim Personal Law, letus now go to the views of eminent Muslim Scholars/Jurists in that regard.

(a) Maulana Mohammad Ali in his commentary on the HolyQuran has stated:

'Divorce is one of the institutions inIslam regarding which much misconceptionprevails, so much so that even the IslamicLaw, as administered in the Courts, is notfree from these misconceptions.'

'Some Muslim jurists and scholars pointout that from the very beginning of therecognition of the principle of unilateraldivorce, forces had been at work which hasrestricted and limited its free andunnecessary use.'

On the meaning and scope of Sura IV verse 35 ofthe Holy Quran the said author has commented as under:'This verse lays down the procedure tobe adopted when a case for divorce arises.

It is not for the husband to put away hiswife; it is the business of the judge todecide the case. Nor should the divorcecase be made too public. The Judge isrequired to appoint two arbitrators, onebelonging to the wives family and the otherto the husbands. These two arbitratorswill find out the facts but their objectivemust be to effect a reconciliation betweenthe parties. If all hopes of reconciliationfail, a divorce is allowed. But the finaldecision rests with the Judge who is legallyentitled to pronounce a divorce. Cases weredecided in accordance with the directionscontained in this verse in the early days ofIslam.'

'From what has been said above, it isclear that not only must there be a goodcause for divorce, but that all means toeffect reconciliation must have beenexhausted before resort is had to thisextreme measure. The impression that aMuslim husband may put away his wife at hismere caprice, is a grave distortion of theIslamic institution of divorce.'

'Divorce is thus discouraged:

If you hate them i.e. (your wives) itmay be that you dislike a thing while Allahhas placed abundant good in it.'

'And if you fear: breach between thetwo (i.e. the husband and the wife), thenappoint a judge from his people and a judgefrom her people; if they both desireagreement. Allah will effect harmonybetween them.

'The principle of divorce spoken of inthe Holy Quran and which in fact includesto a greater or less extent all causes, isthe decision no longer to live together ashusband and wife. In fact, marriage itselfis nothing but an agreement to live togetheras husband and wife and when either of theparties finds him or herself unable to agreeto such a life, divorce must follow. It isnot, of course, meant that everydisagreement between them would lead todivorce; it is only the disagreement to liveany more as husband and wife.'

'The 'Shiqaq' or breach of the marriageagreement may also arise from the conduct ofeither party; for instance, if either ofthem misconducts himself or herself, oreither of them is consistently cruel to theother, or, as may sometimes happen there isincompatibility of temperament to such anextent that they cannot live together inmarital agreement.'

'The 'Shiqaq' in these cases is moreexpress, but still it will depend upon theparties whether they can pull on or not.

Divorce must always follow when one of theparties finds it impossible to continue themarriage agreement and is compelled to breakit off. At first sight it may look likegiving too much latitude to the parties toallow them to end the marriage contractthus, even if there is no reason exceptincompatibility of temperament, but thismuch is certain that if there is suchdisagreement that the husband and the wifecannot pull together, it is better forthemselves, for their offspring and forsociety in general that they should beseparated than that they should be compelledto live together. No home is worth the namewherein instead of peace there is wrangling;and marriage is meaningless if there is nospark of love left between the husband andthe wife. It is an error to suppose thatsuch latitude tends to destroy the stabilityof marriage, because marriage is enteredinto as a permanent and sacred relationbased on love between a man and a woman, anddivorce is only a remedy when marriage failsto fulfil its object.'

'Though the Holy Quran speaks of thedivorce being pronounced by the husband, yeta limitation is placed upon the exercise ofthis right.'

'It will be seen that in all disputesbetween the husband and the wife, which itis feared will lead to a breach, two judgesare to be appointed from the respectivepeople of the two parties. These judges arerequired first to try to reconcile theparties to each other, failing which divorceis to be effected. Therefore, though it isthe husband who pronounces the divorce, heis as much bound by the decision of theJudges, as is the wife. This shows that thehusband cannot repudiate the marriage atwill. The case must first be referred totwo judges and their decision is binding.. ... The Holy Prophet is reported tohave interfered and disallowed a divorcepronounced by a husband, restoring themarital relations (Bu.68:2). It was nodoubt matter of procedure, but it shows thatthe authority constituted by law has theright to interfere in matters of divorce.:

'Divorce may be given orally, or inwriting, but it must take place in thepresence of witnesses.' (b)Ameer Alis Treaties on Mahomedan Law interalia states, as under:

'The Prophet pronounced Talaq to bemost detestable thing before the AlmightyGod of all permitted things.'

'If Talaq is given without any reasonit is stupidity and ingratitude to God.'

'The author of the Multeks (IbrahimHalebi) is more concise. He says - 'The lawgives to the man primarily the power ofdissolving the marriage, if the wife, by herindocility or her bad character, renders themarried life unhappy, but in the absence ofserious reasons, no Musalman can justify adivorce either in the eyes of the religionor the law. If he abandons his wife or puther away from simple caprice, he draws uponhimself the divine anger, for 'the curse ofGod', said the Prophet,' rests on him whorepudiates his wife capriciously.'

(c)Abdullah Yusuf Ali, commenting on the subjectof 'Talaq' has observed:

'Islam tried to maintain the marriedstate as far as possible, especially wherechildren are concerned, but it is againstthe restriction of the liberty of man andwomen in such vitally important matters aslove and family life. It will check hastyaction as far as possible and leave the doorto reconciliation open at many stages. Evenafter divorce a suggestion of reconciliationis made, subject to certain precautions .... against thoughtless action. A periodof waiting (Iddat) For three monthly coursesit prescribed, in order to see if themarriage conditionally dissolved, is likelyto result in issue. But this is notnecessary where the divorced woman is avirgin. It is definitely declared thatwomen and men shall have similar rightsagainst each other.'

'Where divorce for mutualincompatibility is allowed, there is dangerthat the parties might act hastily, thenrepent, and again wish to separate. Toprevent such capricious action repeatedly, alimit is prescribed. Two divorces (with areconciliation between) are allowed. Afterthat the parties must united make up theirminds, either to dissolve their unionpermanently, or to live honourable livestogether in mutual love and forbearance tohold together on equitable terms, neitherparty worrying the other nor grumbling norevading the duties and responsibilities ofmarriage.'

'All the prohibitions and limitsprescribed here are in the interest of goodand honourable lives for both sides, and inthe interests of a clean and honourablesocial life, without public or privatescandals. ... ...'

'If the man takes back his wife aftertwo divorces, he must do so only onequitable terms, i.e. he must not putpressure on the woman to prejudice herrights in any way, and they must live cleanand honourable lives, respecting eachothers personalities.'

'The termination of a marriage bond isa most serious matter for family and sociallife. As every lawful device is approvedwhich can equitably bring back those whohave lived together, provided only there ismutual love and they can live on honourableterms with each other. If these conditionsare fulfilled, it is no right for outsidersto prevent or binder re-union. They may beswayed by property or other considerations.'

'An excellent plan for settling familydisputes, without too much publicity ormud-throwing, or resort to the chicaneriesof the law. The Latin countries recognisethis plan in their legal system. It is apity that Muslims do not resort to ituniversally, as they should. The arbitersfrom each family would know theidiosyncrasies of both parties, and would beable, with Gods help, effect a realreconciliation.'

18. Now, let us go to the enunciations on thesubject of 'Talaq' as made by different High Courts. InILR 5, Rangoon 18, their Lordships of the Privy Councilobserved:

'According to that law (the MuslimLaw), a husband can effect a divorcewhenever he desires.' In the case of Sarabai V/s Rabiabai' [ILR 30 Bom 537 regarding the cause of divorce mere whimis sufficient, it was observed that it is good in lawthough bad in theology.

In ILR 33 Madras 22 a Division Bench of theMadras High Court [Munro and Abdur Rahim, JJ.] held:

'No doubt as arbitrary or unreasonableexercise of the right to dissolve themarriage is strongly condemned in the Quranand in the reported saying of the Prophet(Hadith) and is treated as a spiritualoffence. But the impropriety of thehusbands conduct would in no way affect thelegal validity of a divorce duly effected bythe husband.' In the case of 'Ahmad Kasim Molla V/s KhatunBibi' [ILR 59 Calcutta 833] the Court held:

'From that point there are a number ofauthorities and I have carefully consideredthis point as dealt with in the very earlyauthorities to see whether I am in agreementwith the more recent decisions of theCourts. I regret that I have to come to theconclusion that as the law stands atpresent, any Mahomedan may divorce his wifeat his mere whim and caprice.' In the case of 'Asmat Ullah V/s Khatun-Unnissa' : AIR1939All592 it has been held that if anacknowledgment of Talaq is made by a husband, Talaqwill be held to take effect at least from the date uponwhich the acknowledgment is made.

In the case of 'Wahab Ali V/s Qamro Bi' AIR 1951 Hyd117 it was held that where the husbandstated in his written statement to the applicationunder section 488 that he had already divorced his wifeand the Court came to the conclusion that the divorcepleaded was not proved, even then, such a statement inthe written statement itself operated as an expressionof divorce by the husband from that moment.

In the case of Chandbi V/s Balwant Mujawar(supra) it was held (a) that though the husband failedto prove the divorce which he alleged had taken place30 years ago, he did divorce the wife as from the dateon which he filed the written statement viz. 6thApril, 1959; (b) even where a divorce is given orallyto a wife who has passed the age for periods ofmenstruation, the condition that oral declaration ofdivorce, should be made between two periods of Tuhrwould not be applicable, because it would be physicallyimpossible to have any such periods between which sucha declaration could be made.

In the case of Enamul Haque V/s Bibi Taimunnisa : AIR1967Pat344 it was held that although thefactum of divorce was not proved by the husband, thewife was liable to be saddled with the knowledge ofdivorce from the date of filing of the writtenstatement and, therefore, the divorce would be finalwhen the wife is informed of it.

In the case of Mohammad Ali V/s FareedunnissaBegum : AIR1970AP298 it was held that on the wivesdemand of maintenance, if husband issues a notice thatshe had been divorced on the date of marriage itself inspite of wives denial of divorce, such a notice willoperate as a declaration of divorce from its date.

In the case of 'Saiyid Rashid Ahmad and anotherV/s Mt. Anisa Khatun and others' [AIR 1932 PrivyCouncil 25' the Appellants case was that on 13th ofSeptember, 1905 Ghiyas Uddin pronounced triple Talaq inthe presence of witnesses though in the absence of thewife (Anisa Khatun) received Rs.1,000/- of prompt dowerfor which a registered receipt was produced and therewas also a Talaqnama or deed of divorce dated 17thSeptember, 1905 which narrated the divorce and whichalleged to have been given to Anisa Khatun. The wifehad denied the factum of divorce and, in any event, shechallenged its validity and effect. The Courts belowhad given a concurrent finding that Ghiyas Uddin hadpronounced the triple Talaq of divorce and that thedate of divorce was genuine. This finding was notdisturbed by the Privy Council which further held that(a) in the Biddat form the divorce advanced becomeirrevocable irrespective of the Iddat; (b) it is notnecessary that the wife should be present when theTalaq is pronounced and though her right to alimony maycontinue until she is informed of the divorce; (c) thepronouncement of the triple Talaq by Ghiyas Uddinconstituted an immediately effective divorce and itsvalidity and effectiveness would not be affected byGhiyas Uddin mental mental intention that it shouldnot be a genuine divorce, as such a view is contrary toall authority.

In the case of 'A. Yusuf Rawther V/s Sowramma' : AIR1971Ker261 Krishna Ayer, J. (as HisLordship then was) observed:

'The interpretation of a legislation,obviously intended to protect a weakersection of the community, like women, mustbe informed by the social perspective andpurpose and, within its grammaticalflexibility, must further the beneficentobject. And so we must appreciate theIslamic ethos and the general sociologicalbackground which inspired the enactment ofthe law before locating the preciseconnotation of the words used in thestatute. ... ...Since infallibility is not an attributeof the judiciary, the view has been venturedby Muslim jurists that the Indo-Anglianjudicial exposition of the Islamic law ofdivorce has not exactly been just to theHoly Prophet or the Holy Book. Marginaldistortions are inevitable when the JudicialCommittee in Downing Street has to interpretManu and Muhammad of India and Arbis. Thesoul of culture - law is largely theformalised and enforceable expression of acommunities culture norms cannot be fullyunderstood by alien minds. The view thatthe Muslim husband enjoys an arbitrary,unilateral power to inflict instant divorcedoes not accord with Islamic injunctions ...... Indeed a deeper study of the subjectdiscloses a surprisingly rational, realisticand modern law of divorce. ...' 'It is a popular fallacy that a Muslimmale enjoys, under the Quranic law,unbridled authority to liquidate themarriage. The whole Quran expresslyforbids a man to seek pretext for divorcinghis wife, so long as she remains faithfuland obedient to him. 'If they (namelywomen) obey you then do not seek a wayagainst 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 seekingmaintenance by the wife under section 125 of the Codeand in the written statement the husband, thoughadmitted the marriage, had stated that he hadpronounced Talaq on 10th October, 1976 and the same wasregistered at Qazis office on 12th October, 1976 atDihrugarh. He also stated that the wife was paid allsums payable under the Mahomedan Law on the day ofdivorce. The first point that was considered by thelearned Judge was whether there had been a valid Talaqof the wife by the husband under the Muslim law. Thelearned Judge recorded his opinion in the followingwords:

'14.The modern trend of thinking is toput restrictions on the caprice and whim ofthe husband to give Talaq to his wife at anytime without giving any reason whatsoever.

This trend is in accordance with the Quranicinjunction noticed above, namely, thatnormally there should be avoidance ofdivorce and if the relationship between thehusband and the wife becomes strained, twopersons - one from each of the partiesshould be chosen as arbiters who willattempt to effect reconciliation between thehusband and the wife; and if that is notpossible the Talaq may be effect. In otherwords, an attempt at reconciliation by tworelations - one each of the parties, is anessential condition precedent to 'Talaq'.'...

'16.In the instant case the petitionermerely alleged in his written statementbefore the Magistrate that he had pronouncedTalaq to the opposite party; but he did notexamine himself, nor has he adduced anyevidence worth the name to prove 'Talaq'.

There is no proof of Talaq, or itsregistration. Registration of marriage anddivorce under the Assam Muslim Marriages andDivorces Registration Act, 1935 isvoluntary, and unilateral. Mereregistration of divorce (or marriage) evenif proved, will not render valid divorcewhich is otherwise invalid under Muslim Law.

'... ... In my view the correct lawof Talaq as ordained by the Holy Quran isthat Talaq must be for a reasonable causeand be preceded by attempts atreconciliation between the husband and thewife by two arbiters - one from the wivesfamily the other from the husbands. If theattempts fail, Talaq may be effected.

In support of the above view, the learned Judgealso relied upon the view expressed by Krishna Ayer, J.in the case of A. Yusuf Rawther (supra).

An identical issue again came tobe referred tothe Division Bench of the Gauhati High Court in thecase 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 DivisionBench reiterated and confirmed the view he had taken inthe case of Jainuddin Ahmed (supra).

In the case of Rukia Khatun (supra) anapplication for maintenance was filed under section 125of the Criminal Procedure Code, 1973 and in opposingthe same, though the husband admitted the marriage, buttook a plea that he had divorced the Applicant on 12thApril, 1972 by executing a Talaqnama and had paid thedower money to her. When the application came upbefore the learned Single Judge the decision in thecase of Jiauddin Ahmed was relied upon but the husbandprayed for reconsideration of the issue again by alarger bench and, therefore, the reference was made tothe Division Bench. In addition to the views expressedin Jiauddin Ahmeds case (Supra) Baharul Islam, C.J.,speaking for the Division Bench, added the followingviews:

'The first point to be decided, iswhether the opposite party divorced thePetitioner. The equivalent of the word'divorce' is 'Talaq' in Muslim law. What isvalid 'Talaq' in Muslim law was consideredby one of us (Baharul Islam, J., as he thenwas) sitting singly in Criminal Revision No.199/77 (supra). The word 'Talaq' carriesthe literal significance of 'freeing' or'the undoing of knot'. 'Talaq' meansdivorce of a woman by her husband. Underthe Muslim law marriage is a civil contract.

Yet the rights and responsibilitiesconsequent upon it are of such importance tothe welfare of the society that a highdegree of sanctity is attached to it. Butinspite of the sacredness of the characterof the marriagetic, Islam recognises thenecessity in exceptional circumstances ofkeeping the way open for its dissolution.'

The learned Judge quoted the words in Sura IV Verse 35from the Holy Quran and observed:

'From the verse quoted above, itappears that there is a condition precedentwhich must be complied with before the Talaqis effected. The condition precedent iswhen the relationship between the husbandand the wife is strained and the husbandintends to give 'Talaq' to his wife he mustchoose an arbiter from his side and the wifean arbiter from her side, and the arbitersmust attempt at reconciliation, with a timegap so that the passions of the parties maycalm down and reconciliation may bepossible. If ultimately conciliation is notpossible, the husband will be entitled togive 'Talaq'. The 'Talaq' must be for goodcause 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 DivisionBench 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 anattempt at reconciliation between thehusband and wife by two arbiters, one chosenby the wife from her family and the anotherby the husband from his. If their attemptsfail, 'Talaq' may be effected.... ...' The Division Bench disagreed with the law laid down bythe Calcutta High Court in ILR 59 Calcutta 33 and thisCourt in ILR 30 Bombay 537.

19. Again the Gauhati High Court (Division Bench),in the case of 'Zeenat Fatima Rashid V/s Md. IqbalAnwar' 1993 (2) Crim 853 was called upon to dealwith a similar issue. The wife had filed anapplication under section 125 of Cr.P.Code against herhusband on 13th August, 1990 for maintenance forherself and her minor child. Husband opposed the claimby filing a written statement and took a defence thathe had divorced the claimant on 31st August, 1990 i.e.after she had approached the Family Court. The Courtheld that there had been a divorce duly effected andclaim for maintenance would be determined under section3 of the 1986 Act. The questions that arose forconsideration before the Division Bench were (a)whether there had been a divorce duly effected; (b)whether a Mahomedan husband can divorce his wife at hiswhim and caprice; (c) whether divorce by Talaq wasproved. The Division Bench referred to the earlierenunciations in the case of Sarabai (supra) Asha Bibi(supra) Ahmed Qasim Mulla (supra) Jiauddin Ahmed(supra) and Rukia (supra).

'(a) A Mahomedan husband cannot divorcehis wife at his whim and caprice; (b) underthe Mahomedan Law marriage, though recordedas a civil contract between a man and awoman, they become husband and wife afterthe solemnisation of the marriage and theirrespective rights and obligations areregulated by the rules under relevant law.

This being the position, marriage is thebasis for social organisation and foundationof legal rights and obligations. The modernconcept of divorce is also that thematrimonial status should be maintained asfar as possible; (c) If a Mahomedan husbanddivorces his wife as at his whim and capriceit would not only be a spiritual offence butit would also affect the divorce and aMahomedan husband cannot divorce his wife athis whim or caprice, as divorce must be fora reasonable cause and it must be precededby pre-divorce conference to arrive at asettlement. The husband failed to prove thealleged Talaqnama on the basis of itsphotostat copy. However, in the evidence ofthe husband he had stated that he also madepronouncement of the word 'Talaq' threetimes. There was no evidence or material tocorroborate that Talaq was effected orally.

Under the circumstances it is held that theTalaq pleaded has not been proved. There isno evidence that there was a pre-divorceconference and in that view of the matterthe husband failed to prove the allegeddivorce by 'Talaq'.

A further plea was taken on behalf of thehusband that even if Talaq pleaded was not proved, thehusband had stated that the wife had been divorced notonly in his written statement but also in hisdeposition and, therefore, the divorce would be deemedto have been effected from the date of filing of thewritten statement or from the date of the statement onoath. The Division Bench disagreed with the view takenearlier taken in this regard in the case of 'Asmat UllaV/s Mst Khatun Unnisa, Wahab Ali V/s Qamro Bi, Chand BiV/s Bandesha, Abdul Shakoor V/s Kulsum, and MohammadAli V/s Fareedunnissa for the following reasons:

'Written statement is a pleading.

Pleading is formal allegations by theparties of their respective claims anddefences to provide notice of what is tobeexpected at trial. Proof is establishmentof a fact of evidence or matters before theCourt or legal Tribunal. Where the partiesare in dispute as regards the material fact,an averment in the pleadings does notconstitute evidence as what is stated in thepleading is recital of past event which isrequired to be proved. Under the EvidenceAct if material fact pleaded is not proved,it follows that one Court considers orbelieve that the fact does not exist.

Therefore, averment in the pleading cannotbe used in favour of the maker. This beingthe position, statement made by the husbandin his pleading or deposition that he haddivorced his wife is a recital of past eventand if Talaq pleaded is not proved suchstatement shall be of no consequence. Inthat view of the matter, if statement madeby the husband that he had divorced his wifein his pleading or deposition is consideredas acknowledgment of divorce by Talaq, itwill be against the policy of law and itwould also amount to furnishing or providingevidence of Talaq which is against the ruleof pleading and proof. That apart, in viewof our conclusion above that divorce must befor a reasonable cause and it must bepreceded by a pre-divorce conference, if thestatement made orally in evidence or in thewritten statement that the husband hasdivorced his wife in a proceeding undersection 125 of Cr.P.C. will be a validTalaq from the date of making statementcannot be sustained as it would be contraryto our conclusion.

In the case of 'Moti-ur-Rahaman V/s SabinaKhatun and another' 1994 (3) Crimes 236 the wife hadfiled an application under section 125 before theMagistrate for maintenance. By order dated 15thSeptember, 1990 the said application was allowed. On3rd May, 1992 the husband filed an application undersection 3 and 7 of the 1986 Act before the Magistratecontending that he had given divorce to the wifeaccording to Mahomedan Law on 15th October, 1990 and anaffidavit to that effect was sworn. It was also statedthat a copy of the declaration was sent to the wife.

This application came to be rejected by order dated 4thSeptember, 1992 which was challenged before the HighCourt. The learned Judge disagreed with the husbandthat he had divorced or given Talaq to the claimantwife on 15th October, 1990 and the reasons in supportof this view are stated in para 13.

'13.Even though under Section 308 ofthe Mohammedan Law (vide Mullas principlesof Mohammedan Law) any Mohammedan of soundmind, who has attained puberty, may divorcehis wife whenever he desires withoutassigning any cause, a Division Bench of theGauhati High Court in the decision in ZeenatFatima Rashid V/s Md. Iqbal Anwar, has heldthat a Mahomedan husband cannot divorce hiswife at his whim or caprice and divorce mustbe for a reasonable cause and it must bepreceded by a pre-divorce conference toarrive at a settlement, with which I fullyconcur. Though under the aforesaid Section308 of the Mohammedan Law the husband is notrequired to assign any cause for thedivorce, but there must be a reasonablecause for the same, which should be precededby a predivorce conference so as to make anendeavour for reconciliation between theparties, if possible. But no reasonablecause has been disclosed by the husband inthe relevant proceedings for the allegeddivorce. There is neither the nearest andfaintest whisper by him that the allegeddivorce on 15.10.1990 had been preceded by apre-divorce conference to arrive at asettlement. That being so, even mostcharitably, assuming for the sake ofargument that the husband had divorced thewife on 15.10.1990, the alleged divorcecould not be held to be according to MuslimLaw. ... ...'

In the case of 'Saleem Basha V/s Mrs. MumtazBegum' S.M.Sidickk, J., speakingfor the Madras High Court also took the same view aswas taken by the Calcutta High Court in the case ofMoti-ur-Rahaman (supra) after referring to the longlist of enunciations, as referred to herein above. Thehusband had taken a plea that he was not liable to paymaintenance for the period subsequent to the divorce on30th November, 1992 except for the Iddat period and thefact of divorce was communicated to the wife, Jamat andMutawalli of the Mosque by registered post. The wifefiled affidavit in the Court repudiating averments andshe claimed that she was not informed of the divorceand the Talaq pronounced by him was a false allegation.

One of the issues framed by the learned Single Judge ofthe Madras High Court was whether the Talaq pronouncedby the husband on 30th November, 1992 divorcing hiswife was valid under law.

It was brought to the notice of the Respondentwife about the pronouncement of Talaq by her husbandwhen he filed the petition for cancellation ofmaintenance on 20th July, 1995 though she was notinformed about the pronouncement of Talaq by registeredpost, which was returned. A presumption was,therefore, drawn that the pronouncement of Talaq wasinformed to the wife on 30th November, 1992 and on 20thJuly, 1995. The Talaqnama executed by the husband inthe presence of the witnesses (Exhibit P5) was onrecord. The reasons stated in the Talaqnama fordivorce were that the wife had filed a case formaintenance and she insulted the husband and hermother-in-law as well as there were differences ofopinion, as a result of which they could not run thefamily. The Talaqnama did not indicate that anyconciliation proceeding was initiated between them atany point of time by any mediator nor it was statedtherein that the husband called upon his wife to reformherself and then to run the family amicably. In hisoral depositions before the trial Court the husband hadstated that he divorced his wife as per Mahomedan Lawby pronouncing Talaq in the presence of two witnesseson 30th November, 1992 but he did not give any reasonto give Talaq. The learned Judge observed that thecorrect law of Talaq as ordained by the Holy Quran isthat (a) Talaq must be for reasonable cause, (b) itmust be preceded by an attempt at reconciliation (bynominees of both the spouses), and (c) Talaq may beeffected if the said attempt failed. The learned Judgeentirely agreed with the view taken by the Gauhati HighCourt in the case of Zeenat Fatima Rashid (supra) andby the Calcutta High Court in the case of Chandbi ExW/o Bandesha Mujawar (supra) and he held that the Talaqpronounced by the husband on 30th November, 1992divorcing his wife was not valid under the MahomedanLaw.

20.The issues which we formulate for decision soas to resolve the controversy between the two divergentviews of this Court are as under:

(1) Whether a Muslim husband has the right todivorce his wife without reasons and at hismere whim and caprice.

(2) Whether the Muslim Law mandates pre-divorcereconciliation between the parties.

(3) In proceedings for maintenance instituted by aMuslim wife, if her husband makes a plea in hiswritten statement or in any form before theCourt concerned that his marriage was dissolvedat an earlier date in the Talaq form, evenassuming that the fact of such dissolution atan earlier date is not proved, whether thefiling of the written statement containing sucha plea or making such a statement in otherwritten form or orally of divorce in the Talaqform amounts to the dissolution of marriageunder the Muslim Personal Law from the date onwhich such a statement was made.

(4) Whether mere assertion either in the pleadingsor in the witness box amounts to anacknowledgment of divorce given earlier by thehusband and he is not required to prove to havegiven divorce in accordance with Mahomedan Lawsometimes prior to the date of such anassertion.

(5) Whether even otherwise an assertion, either inthe pleadings or in the witness box or in someapplication filed in Court by the husband byitself amounts to divorce in accordance withMahomedan Law from the date of such assertionif not from an earlier date.

(6) Even if it is found that the statementregarding divorce given earlier was false, canthe statement in the Court proceedings, betaken as an acknowledgment of divorce or evenotherwise a fresh declaration of divorce.

(7) Whether the husband is required to prove thatthe Talaq was duly effected/ given.

(8) Whether the husband of a minor or a woman pastmenopause has the unqualified right topronounce Talaq at any time either in the Ahsanor Hasan mode.

20A)While dealing with the above formulated issues,we would like to be reminded of the observations madeby the Constitution Bench of the Apex Court in the caseof 'Danial Latifi and another V/s Union of India' : 2001CriLJ4660 in the following words: '20.In interpreting the provisions wherematrimonial relationship is involved, wehave to consider the social conditionsprevalent in our society. In our society,whether they belong to the majority or theminority group, what is apparent is thatthere exists a great disparity in the matterof economic resourcefulness between a manand a woman. Our society is male dominated,both economically and socially and women areassigned, invariably, a dependent role,irrespective of the class of society towhich she belongs.'

21. It is popularly said that a Muslim marriage isnothing but a civil contract and a large sectionbelieves that the husband has an absolute freedom todissolve the marriage without assigning reasons and athis free will. The Holy Quran as well as the othersources of Personal Law teach us that the process ofreaching to the marital tie is certainly a civilcontract but once the marriage is solemnised it becomesan institution life long for both husband and the wifeand they do not live together by way of a mere contractbut in a holy and sacred bond of love, care and mutualrespect with equal status to both the partners. Ithappens, in some cases, that on account of incompatibletemperament, extreme divergent upbringings, likes anddislikes or other physical incompatibilities orincapacities, the institution of marriage comes inperil. The Mahomedan Law does recognise the husbandtobe on a high pedestal than the wife but that byitself does not mean that he can check-out his wife athis whim and caprice and without assigning any reasons.

Islam recognises the principle of equity between thehusband and wife during the subsistence of theirmarital tie. If the husband and wife are not able toget along as partners or to cohabit with happiness,Islam does not force them to continue in such unhappyand unsettling conditions. However, both the partiesare given some chance to reform or mend their ways soas to keep the institution of marriage in-tact and thiscould be achieved by the process of reconciliationbetween the parties with the intervention of arbiters.

22. A divorce by the husband is Talaq and it hasits oral as well as written forms. The oral form ofTalaq can be effected in three modes viz. Talaq-e-Ahsan, Talaq-e-Hasan, Talaq-ul-Biddat orTalaq-e-Badai. The first two forms are conditioned andthey are accepted tobe more civilized but whileresorting to any of these two forms there areconditions precedent and it is not that the husband isat his free will to resort to any of these modes at anytime and without assigning any reasons. If the husbandfeels that his wife does not care for him, she isincompatible, she does not listen to him, she does notlove him, she refuses to cohabit with him, she engagesin cruel behaviour, she is unfaithful or for any otherreason, he has the right to give Talaq to his wife butby following certain procedure. Firstly, he has tomake it known to his wife about any of these reasonsand she must be given time to change her behaviour. Ifby his direct conversation/ persuasions she does notchange her behaviour, the husband has to resort to theprocess of conciliation by informing to her father orany other parental relations. Two arbitrators, onefrom wife and one from the husband, are required to beappointed and it shall be the duty of the Arbiters tobring in a settlement between the parties so that theylive together happily and inspite of these effortshaving been made if the discord still persists to anirreparable level there is no alternative but toseparate and it is at this stage that the husband hasthe right to give Talaq to his wife. The stage ofconciliation with the intervention of the arbiters is acondition precedent for effecting Talaq either in Ahsanform or Hasan form.

It will be seen that in all disputes betweenthe husband and the wife the judges are tobe appointedfrom the respective people of the two parties. Thesejudges are required first to try to reconciliation theparties to each other failing which divorce is to beeffected. Therefore, though it is the husband, whopronounces the divorce, he is as much bound by thedecision of the judges as is the wife. This shows thatthe husband cannot repudiate the marriage at his will.

The case must be first referred to two judges and theirdecision is binding. Talaq must be for reasonablecause and be preceded by attempts at reconciliationbetween the husband and the wife by the arbitrators,one from the wives family and the other from thehusbands. If the attempts failed, Talaq may beeffected. In other words, an attempt at reconciliationby two relations, one each of the parties, is anessential condition precedent to Talaq.

23. Even if the reconciliation process has beengone through and found to be ineffective or in-vain,the husband has to follow the prescribed procedure forTalaq by Ahsan or Talaq by Hasan mode. Section 11 and12 of the Compendium deal with proper and improperTalaq whereas section 2 prescribes the conditionsgoverning the essence of Talaq. Even written Talaq interms of section 3 has several forms. Section 5 hasset out the conditions for effectiveness of Talaq andit has laid down the situations where the Talaq wouldnot be effective. The Muslim Law, thus, recogniseseffective/ proper as well as ineffective/ improperTalaq and while exercising the right of Talaq it isimperative that the husbands action of invoking thisright meets these requirements. Lest, the Talaq willbe ineffective or invalid or improper. The utterances/pronouncements aimed at Talaq-e-Ahsan or Talaq-e-Hasanare required to be made during a specific period i.e.a Tuhr (period between menstruation) followed byabstinence from sexual intercourse during the period ofIddat. In the later form three pronouncements arerequired to be made during successive thus and nointercourse taken place during any of the three thus.

Thus, the period of Iddat varies from 90 to 130 days.

A Talaq in Ahsan mode becomes irrevocable and completeon the expiration of the period of Iddat, whereas aTalaq in Hasan mode becomes irrevocable and complete onthe third pronouncement irrespective of Iddat. UntilTalaq becomes irrevocable the husband has the option torevoke it which may be done either expressly orimpliedly as by resuming sexual intercourse. In anon-consummated marriage pronouncing a single Talaq eventhough the wife is in menstruation, will beTalaq-e-Hasan. Pronouncing three Talaqs in threemonths on a minor or a woman past menopause is alsoTalaq-e-Hasan. These modes are required tobe followedso as to rule out the possibility that the wife hasconceived and if the divorced woman is pregnant, herIddat period is till the end of pregnancy. The Iddatperiod, thus, varies in three different forms dependingon the physical conditions of the wife and these arethree menstruation courses. After the date of divorceif she is subject to menstruation, three lunar monthsafter she is divorced if she is not subject tomenstruation and if she is in enceinte at the time ofher divorce the period between the divorce and thedelivery of her child or the termination of herpregnancy whichever is earlier. The pronouncement ofTalaq by the husband in the oral form or giving Talaqin writing has to necessarily satisfy all theseconditions of pronouncing the Talaq at a particulartime and such a Talaq must be valid and effective. Itis not that on his sweet will the husband has theunqualified prerogative to exercise this right ofpronouncing Talaq. Uncontrolled use of divorce withoutregard to the restrictions established by the Shariatis a sin. To divorce the wife, without reason, only toharm her or revengeful due to the non-fulfilment of thehusbands unlawful demands by the wife or her guardiansand to divorce her in violation of the procedureprescribed by the Shariat is Haram (absolutelyprohibited).

The Holy Quran expressly forbids a man to seekdivorce so long as she remains faithful and obedient tohim. However, it is also true that if there is notemperamental compatibility between the parties or theman feels that he cannot, as husband, fulfil thewomans rights or because of mutual difference ofnature, Gods limits cannot be maintained, keeping themarriage in-tact, in such situation compel the partiesby legal restrictions to continue the marital life maybe more harmful for the society. It is, thus, clearthat the Islam discards divorce in principle andpermits it only when it has become altogetherimpossible for the parties to live together in peaceand harmony. Divorce is permissible in Islam only incases of extreme emergency. Mere registration ofdivorce, even if proved, will not render valid adivorce which is otherwise invalid under the MuslimLaw. Even if there is any reasonable cause for thedivorce yet there must be evidence to show that therewas an attempt for a settlement prior to the divorceand when there was no such attempt to arrive at asettlement by mediators, there cannot be a validdivorce under the Islamic Law.

24. However, there is a third form of oral Talaqand that is Bidai. This Talaq-e-Biddat or Bidai(improper Talaq) within the meaning of section 12 ofIslamic Laws and it includes in a consummated marriagedivorcing the wife during menstruation or divorcing herin a Tuhr after coitus or pronouncing an irrevocabledivorce or pronouncing more than one Talaq in singleTuhr and in an unconsummated marriage pronouncingtogether more than one Talaq or pronouncing more thanone Talaq in a single month on a minor or a woman pastmenopause. Though such a form is prohibited but ifperson pronounces such a Talaq it will be effectivewhile the man will be guilty of severe sin. Thus, theTalaq-e-Biddat or Bidai form is sinful or may bedescribed as barbaric or is prohibited but if thehusband pronounces such a Talaq it would not beunlawful. Mr. R.K.Wilson, in his digest ofAnglo-Mahomedan Law (5th Edition) at page 136 stated onthe law of divorce in the following words:

'The divorce called Talaq may be eitherirrevocable (bain) or revocable (rajai). ATalaq-e-bain, while it always operates as animmediate and complete dissolution of themarriage bond differs as to one of itsulterior effects according to the form inwhich it is pronounced. A Talaq-e-bain maybe effected by words addressed to the wifeclearly indicating an intention to dissolvethe marriage either (a) once, followed byabstinence from sexual intercourse for theperiod called 'Iddat' or, (b) three timesduring successive intervals of puberty i.e.between three successive menstruations, nointercourse taking place during any of thethree intervals, or (c) three times atshorter intervals or even in immediatesuccession, or (d) once, by words showing aclear intention that the divorce shallimmediately become irrevocable. The firstname of the above method is called as'Ahsan' (best), the second 'Hasan' (good),the third and fourth are said to be 'Biddat'(sinful) but are nevertheless regarded bySunni Lawyers as legally valid.

In the case of 'Saiyid Rashid Ahmed and another V/s AnisaKhatun and others' (supra) Ghiyas Uddin had given Talaqon 13th September, 1905 to Anisa Khatun by pronouncingthe triple Talaq of divorce in the presence ofwitnesses. The words of divorce addressed to the wife,though she was not present, were repeated three timesby Ghiyas Uddin 'I divorce Anisa Khatun forever andrender her Haram for me'. These words clearly showedan intention to dissolve the marriage. The PrivyCouncil held that there can be no doubt that the methodadopted was the fourth, above described, and it wasconfirmed so by the deed of divorce which stated thatthe three divorces were given 'in the abominable form'i.e. 'Biddat'. The Privy Council also held that theHigh Court committed an error in treating the divorceas in the 'Ahsan' form instead of 'Biddat' form inwhich the divorce at once becomes irrevocable butirrespective of the Iddat and it is not necessary thatthe wife should be present when the Talaq is pronouncedand her right to alimony may continue until she isinformed of the divorce. The Privy Council also heldthat once the divorce is held proved such facts couldnot undo its effect. It is, thus, necessary that thefactum of divorce is required to be proved and theconditions precedent for such valid or effectivedivorce are as stated in the Holy Quran, ofreconciliation by the arbitrators or by appointingjudges and for specific reasons unless the divorce isin the third and fourth form i.e. Biddat or Bidai andRajazi.

Islam also recognises the husbands right togive Talaq in front of Qazi or the wives father or twowitnesses, both of them being man professing Islam orone of them being a man and other two being women allprofessing Islam and such a Talaq, either in the Ahsanor Hasan form will be irrevocable. Nevertheless, inthis form also the conditions for reconciliation andgiving reasons for Talaq are required to be followed sothat the husband and wife are restrained from anundesirable act of divorce which leads to severalproblems in the family. If the man is sure that hecannot have cohabitation as per rule, that if he isimpotent or cannot fulfil marital obligations or anyother such situation exists, it would be necessary forhim to pronounce a divorce and in such a situation hemay be justified in invoking the Talaq-e-Biddat orBidai form of Talaq.

25. In the written form of Talaq there is noprescribed format but the conditions for effective orproper Talaq, as are applicable in the oral form ofTalaq, are also applicable to the written form of Talaqand the pronouncements of divorce are required tobecommunicated to the wife. In the absence of words,showing a different intention, a divorce in writingoperates as an irrevocable divorce and takes effectimmediately on its execution. Such a Talaq in writingis required to be addressed to the wife and absence ofsuch an address leads to ineffective/ invalid Talaq.

The husband must address to his wife and pronounce theTalaq in writing. If such a pronouncement is notaddressed to the wife it becomes ineffective andinvalid.

26. The above discussion does indicate that merepronouncement of Talaq by the husband or merelydeclaring his intentions or his acts of havingpronounced the Talaq is not sufficient and does notmeet the requirements of law. In every such exerciseof right to Talaq the husband is required to satisfythe preconditions of arbitration for reconciliation andreasons for Talaq. Conveying his intentions to divorcethe wife are not adequate to meet the requirements ofTalaq in the eyes of law. All the stages of conveyingthe reasons for divorce, appointment of arbiters, thearbiters resorting to conciliation proceedings so as tobring reconciliation between the parties and thefailure of such proceedings or a situation where it wasimpossible for the marriage to continue, are requiredto be proved as condition precedent for the husbandsright to give Talaq to his wife. It is, thus, notmerely the factum of Talaq but the conditions precedingto this stage of giving Talaq are also required to beproved when the wife disputes the factum of Talaq orthe effectiveness of Talaq or the legality of Talaqbefore a Court of law. Mere statement made in writingbefore the Court, in any form, or in oral depositionsregarding the Talaq having been pronounced sometimes inthe past is not sufficient to hold that the husband hasdivorced his wife and such a divorce is in keeping withthe dictates of Islam.

It is a fallacious argument that in case of a minor ora woman past menopause, the oral Talaq in the form ofAhsan or Hasan could be pronounced by the husband atany time or at his sweet will as in such cases there isno Iddat. However, the period of Iddat has beenspecifically defined and even in such cases there is awaiting period of three lunar months even though thereis no occurrence of menstruation. The view taken bythis Court in the case of Chandbi Ex W/o BandeshahMujawar (supra) cannot be accepted as a good law.

27. Pleadings before the Court, though made onoath, either in writing or in oral form, when disputedby the wife, are required to be proved and when itcomes to proving all these pleadings the process isgoverned by the common law viz. the Civil ProcedureCode and Evidence Act etc. and mere statement on oath,either in writing or in oral form itself does not provethe factum of divorce as well as valid or effectivedivorce. If the Talaq pronounced is ineffective orinvalid it is no divorce under the Mahomedan PersonalLaw. It is also required to be noted, at this stage,that though the husband has the right to divorce hiswife, he also has the right to revoke the saidpronouncement and take her back, as his wife, providedthe divorce has not become irrevocable. This alsoshows the tolerance of Islam that after having uttereddivorce once, the wife is provided an opportunity forreformation/ correction and to take steps accordinglyso that the institution of marriage is saved. It ispossible that sometimes the husband pronounces Talaq inhaste and subsequently repents for it and, therefore,before the Talaq has reached its irrevocable stage, thehusband has the right to retrieve himself from such anextreme step and reconciliation with the situation andcorrect himself.

28. Even in case of irrevocable Talaq in thepresence of a Qazi or the wives father or twowitnesses the factum of this form of Talaq is requiredto be proved, if challenged before a competent court inappropriate proceedings. This may involve examiningeither the Qazi or the father or the witnesses. Ifthere are two witnesses, both of them must beprofessing Islam. If there is only one male witnessand remaining two are women all of them must beprofessing Islam. Their presence, when the husbandpronounced Talaq and his so pronouncing Talaq, arerequired to be proved if the factum of valid Talaq isquestioned by the wife. Mere assertion by the husband,in any form, is not sufficient to hold that he hasexercised the right to give Talaq legally and validly.

If any of the witnesses does not profess Islam, theTalaq given in his/ her presence shall be invalid andinoperative.

29. If the husband has not been able to prove hisstatement regarding divorce given earlier to makingsuch a statement before the Court, there does not exista Talaq in the eyes of law and such a statement cannotbe taken as a fresh declaration of divorce; as meredeclaration of divorce is not sufficient, by itself,for a valid divorce. Even if such statement in writingor made orally before the Court is supported by aTalaqnama, which may be a record of the fact of an oralTalaq or may be the deed by which the divorce iseffected but that supportive document by itself doesnot lead to a conclusion that the Talaq was valid,effective and legal. Under the Wakf Act there is alsoa provision of registration of Talaq and a certificateto that effect is issued by the Qazi. In most of thesecases, the Talaqnamas are customary and unless thefactum of Talaq is proved, these documents in isolationhave no sanctity in support of a valid Talaq. Mereexistence of this document does not make the Talaqvalid or legal and, therefore, it is necessary that thefactum of Talaq and the stages it is preceded by, arerequired to be proved before the Court, if disputed bythe wife and mere intentions of the husband whilemaking such a statement before the Court cannot beaccepted tobe a valid Talaq from the date such astatement was made before the Court and in any form.

30.Let us consider now specific cases of husbandtaking the plea of having divorced his wife:

(a) In the written statement filed before the Courtthe husband takes a plea of divorce given onsome date in the past and files a copy of theTalaqnama and/ or divorce certificate with sucha written statement.

(b) The husband does not say anything about thedivorce in the written statement and while inthe witness box takes a plea of divorce givenon some earlier date and produces in support acopy of the Talaqnama and/ or divorcecertificate as issued by the Qazi.

(c) In the written statement the husband takes aplea that he has given divorce to the claimanton any date earlier in the presence of a Qazior in the presence of the father or in thepresence of two or three witnesses professingIslam.

(d) In his written statement the husband takes aplea of divorce given on an earlier date in thepresence of two or three witnesses and one ofthem does not profess Islam.

(e) In the written statement or while in thewitness box the husband invokes his right ofTalaq under the Ahsan or Hasan form.

(f) In the written statement the husband takes aplea that on a given date he had pronounced thetriple Talaq of divorce in the presence ofwitnesses, though in the absence of the wife,and the words addressed to the wife wererepeated three times as follows:

'I divorce my wife 'Smt.' foreverand render her Haram for me.' And, in support thereof, copy of the Talaqnamaor deed of divorce or certificate of divorce isproduced.

31. On the proceedings initiated by the wife beforea competent Court the divorce allegedly given by thehusband in the first three forms (a) to (c), ifdisputed about its factum, cannot be valid andoperative. Such a divorce will be fictitious andinoperative unless the husband proves his plea of anyof these forms of Talaq before the Court by leadingevidence. Mere taking such plea, even in a statementon oath, does not by itself operate as a divorce fromthe date it is so made because there are conditionsprecedent to such a form of Talaq and it is required tobe exercised during a particular period. The husbandis required to discharge his burden of proving that hehad no physical relationship with the wife during thewaiting period and the reasons for exercising such aright are required to be putforth. The factum ofconciliation or arbitration is also one of theconditions preceding the process of Talaq in any ofthese forms namely 'Ahsan' and 'Hasan'.

In the (d) form even if the factum of divorceis proved it cannot be held to be a valid divorce asone of the witnesses does not belong to the Mahomedanreligion and as per the Holy Quran it is a conditionprecedent that both witnesses (men) must profess Islamand in case one witness is a man the other witnessesmust be two women and all of them must profess Islam.

Any breach in this regard results into an invalid Talaqas being contrary to the command of the Holy Quran,even though the factum of divorce may be establishedbefore the Court.

In the fifth form i.e. (e) it would not beenough for the husband to invoke his right of givingTalaq under the 'Ahsan' or 'Hasan' form before theCourt by way of written statement or while in thewitness box and under oath. It is not in each casethat the husband and wife (the two litigating partiesbefore the Court) are staying under different roofs andsimilarly the wife may take a plea that the husband didnot observe the condition precedent in that regard.

The burden then falls on the husband to prove theseconditions of abstinence from sexual intercourse. Inaddition, he has to set out before the Court thereasons for such a divorce and whether he had soughtthe help of arbitrators for reconciliation at any timebefore the wife approached the Court before he filedhis written statement or before he appeared in thewitness box to take such a plea of Talaq.

However, in the last contingency the divorcebecomes effective and irrevocable forthwith and thewife becomes 'Haram' for the husband. If the husbandclaims to have exercised his right of divorce in theform of Biddat/ Bidai or Rajai, in the writtenstatement on an earlier occasion the divorce iscomplete and irrevocable provided the factum of dueTalaq given in this form, on an earlier occasion, isduly proved before the Court. The words uttered forgiving Talaq in these two forms or in any of them arerequired to be proved before the Court and merestatement of the husband or the proof in supportthereof by way of Talaqnama or deed of divorce orcertificate of divorce will not be sufficient to provethe factum of having exercised this power sometimes inthe past. This view is inconsonance with the law laiddown by the Privy Council in Anisa Khatun's case(supra).

32. We accordingly hold, with profound respect,that the view taken in Jaitunbi's case (supra) does notmeet the requirements of the Mahomedan Personal Law fora valid and irrevocable divorce. The plea taken by thehusband in his written statement that he had givenTalaq at an earlier date shall not amount to thedissolution of marriage under the Muslim Personal Lawfrom the date on which such a statement was made unlesssuch a Talaq is duly proved and it is further provedthat it was given by following the conditions precedentviz. that of arbitration/ reconciliation and for validreasons and more so when the mode of divorce alleged tohave been given in the 'Ahsan' or 'Hasan' form. Thefactum of divorce is required to be proved, includingthe conditions precedent therefor, by evidence bothoral and documentary, when the same is disputed by thewife before a competent Court of law. We agree withthe view taken subsequently by a Division Bench of thisCourt in the case of 'Sairabanu' (supra) and furtherlay down the clarifications, as set out herein above.

We hold that the view taken by the Gauhati High Courtin the case of Mast. Rukia Khatun (supra) and ZeenatFatima Rashid (supra) is more in tune with the ethos ofIslamic Personal Law. However, if the husband reliesupon the Biddat or Rajai form of Talaq given at anearlier occasion either in his written statement or inhis oral depositions, he is required to prove thefactum of the same by leading evidence before theCourt, if disputed by the wife.

33. We answer the reference in the above opinionand direct the office to place the Petition alongwiththe connected matters, if any, before the appropriateSingle Bench.

34. We record our appreciations for theable assistance rendered by both the amicus curiae.