Shamim Ara v State of U.P. & Ors
Written by SAHR member, Natasha Latiff.
- The appellant-wife and Abrar Ahmed(respondent no.2) were married in 1968. The appellant filed an application in 1979 under Section 125 CrPC complaining of cruelty to her and her children as well as desertion. The husband replied by claiming that he had divorced her on 11–7–1987, and therefore her disentitlement for maintenance.
- No statement of circumstances, no justification by reasons, no proof of efforts at reconciliation and no evidence of witnesses in support of the talaq were adduced. The Family Court had accepted an affidavit by the husband (in some case where the appellant was not even a party) as proof of the talaq and accordingly dismissed the wife’s suit for maintenance. The wife appealed to the High Court. The High Court of Allahabad held that although the alleged divorce had not been communicated to the appellant, the divorce stood completed in 1990 when the husband filed written statement to her appeal.
- The appellant has filed this appeal by special leave before the Supreme Court.
Legal Reasoning
Whether a written statement by the husband that he had divorced his wife (without communicating the divorce to her) would amount to a divorce effective from the date of filing of the written statement.
R.C Lahoti, J.: “None of the ancient holy books or scriptures of Muslims mentions in its text such a form of divorce as has been accepted by the High Court and the Family Court. No such text has been brought to our notice which provides that a recital in any document, whether a pleading or an affidavit, incorporating a statement by the husband that he has already divorced his wife on an unspecified or specified date even if not communicated to the wife would become an effective divorce on the date on which the wife happens to learn of such statement contained in the copy of the affidavit or pleading served on her.” (para 7)
The Hon’ble Judge noted that there is no mention in any Holy Book or Islamic scripture of a form of divorce given by way of a pleading in a written statement, provided that the divorce was not communicated to the wife prior to filing the written statement. Therefore, such a form of divorce cannot be effected on the date on which the wife learns of such statement contained in the copy of the affidavit/pleading served on her.
Commenting on a finding of fact, Judge Lahoti said: “The particulars of the alleged talaq are not pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency continued to prevail even during the trial and the respondent №2, except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11.7.1987. There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq.” (para 17)
Prior to this statement, Justice Lahoti had discussed precedents stating that “talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife…; if the attempts fail, talaq may be effected”.(Para 15)
Justice Lahoti: “We are also of the opinion that the talaq to be effective has to be pronounced… There is no proof of talaq having taken place on 11.7.1987…We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. The respondent №2 ought to have adduced evidence and proved the pronounced [sic]of talaq on 11.7.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed.”(para 18)
Justice Lahoti thus stated that the correct legal position is that a mere plea of divorce given in a written statement by the husband will not by itself operate as proof of talaq; hence, it cannot be said that talaqhas take effect from the date the written statement made by the husband comes to the knowledge of the wife.
Conclusion
“The appeal is allowed. Neither the marriage between the parties stands dissolved on 5.12.1990 nor does the liability of the respondent №2 to pay maintenance comes to an end on that day.” (para 19)
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