IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat Appeal No. 76 of 2005
1. KAYYUMPARAMB UMMER FAROOQUE,
... Petitioner
Vs
1. PEREDATH NASEEMA, S./O.KUNHIMUHAMMED,
... Respondent
For Petitioner :SRI.K.SHIBILI NAHA
For Respondent :SRI.M.P.PRAKASH
The Hon'ble MR. Justice R.BHASKARAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated : 05/10/2005
O R D E R
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R.Bhaskaran & K.P.Balachandran, JJ.@@
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Mat.App.No.76 of 2005 @@
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R.P.(FC).No.49 of 2005@@
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Judgment@@
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.HE 1
Bhaskaran, J.@@
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.HE 2
R.P.(FC).No.49 of 2005 arises out of M.C.No.561
of 2003 filed by the respondent herein under S.125 of the
Code of Criminal Procedure for maintenance and
Mat.A.No.76 of 2005 arises out of O.P.No.191 of 2004 for
arrears of maintenance filed by the respondent wife. In
the claim for maintenance under S.125 of the Code of
Criminal Procedure, the appellant contended that there
was already a divorce effected by the pronouncement of
talaq on 23-7-1999 and the divorced wife was not entitled
for claiming maintenance. Arrears of maintenance was
claimed for the period from29-10-2000 to 28-10-2003. The
claim was opposed on the ground that there was already a
divorce in 1999 and the respondent is not entitled to
claim any maintenance. At the time of argument of the
O.P. before the Family Court, a contention was also
raised that the respondent was not entitled to claim
arrears of maintenance unless she pleaded and proved that
she belonged to Shafi sect. This contention was
negatived by the Family Court and arrears of maintenance
was ordered as prayed for. The Family Court also ordered
for payment of maintenance at the rate of Rs.1,500/- p.m.
from the date of petition and arrears of maintenance for
three years at the rate of Rs.1,000/- p.m.
2. In the appeal and revision, the learned
counsel appearing for the appellant and revision
petitioner mainly contended that the parties are presumed
to be Hanafis and the wife is not entitled to claim
arrears of maintenance. He also contended that when
there is a pronouncement of talaq and divorce is
effected, a divorced Muslim wife cannot claim maintenance
and therefore the Family Court has gone wrong in allowing
the application filled by the respondent wife. In the
light of the above contentions, the points for
consideration are (1) whether the Family Court was
justified in law in awarding arrears of maintenance to
the respondent wife, and (2) whether there was a divorce
as contended by the appellant and whether the respondent
is disentitled to file an application under S.125 of the
Code of Criminal Procedure before the Family Court.
Point No.1@@
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3. The learned counsel for the appellant
strongly relied on the decision of Madhavan Nair, J., in
Naha Haji v. Karikutty (1966 KLT 445). In that case,@@
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there is an observation that the generality of Mappilas
in South Malabar are Shafis; but, it cannot be said that
every Mappila in South Malabar is a Shafi. The
presumption can only be that an Indian Muslim is a Sunni
of the Hanafi sect. Whenever deviation from the Hanafi
law is sought to be relied on in a case, it has to be
pleaded and proved as a fact. These observations are in
the nature of obiter dictum as the learned Judge has
himself observed that it was unnecessary in that case to
decide whether the parties concerned are Shafis or
Hanafis; for, even if they were Shafis, there would not
have been any difference in the result of the case. The
learned Judge was deciding the question whether a gift by
the father to a daughter had come into effect and could
be revoked by the father. It was observed that even if
parties are Shafis the gift in the circumstances of the
case had become operative. No doubt, Justice Madhavan
Nair has noted that in Katheesa Umma v. Narayanath@@
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Kunhamu (AIR 1964 SC 275), a case from North Malabar, the@@
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parties are seen treated as Hanafis bythe Supreme Court.
But on going through the decision of the Supreme Court,
there was no question raised as to which sect the parties
belonged to and there was no decision on that aspect at
all. Though there was a passing observation that the
parties are Hanafis, the Supreme Court has not laid down
any law about the general presumption and the necessity
for pleading and proving in all cases if a claim is made
for past maintenance that the parties belonged to Shafi
sect.
4. In Abdul Karim v. Nabeesa (1987 (2) KLT@@
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887), Pareed Pillay, J., as His Lordship then was,@@
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noticed that in the plaint in that case it was not stated
that the parties belong to Shafi sect. But it was
asserted in the replication field by the plaintiff that
they and defendant follow Shafi School. It was observed
that majority of Muslims in Kerala follow Shafi School.
So far as this State is concerned Hanafis are only in the
minority. Judicial notice of the above position was
taken by the learned Judge and it was found that there
was ample evidence in the case that the parties followed
Shafi School. When judicial notice is taken of the fact
that majority of the Muslims in Kerala follow Shafi
School, we do not understand as to why there should be a
presumption so far as the Muslims in Kerala are concerned
that they are Hanafis; and the necessity to plead and
prove that the parties belonged to Shafi sect, when alone
a decree for arrears of maintenance can be granted. In
this case, it is important to note that when the
plaintiff claimed arrears of maintenance there was no
contention in the written statement filed that the
parties belonged to Hanafi sect and therefore the
plaintiff cannot claim arrears of maintenance. It was
only in the proof affidavit of the power of attorney
holder of the appellant that it was stated that the
parties belonged to Hanafi sect. When Rw.1 was examined,
no attempt was made to bring out as to which sect the
parties belonged to. The appellant was not examined in
court. The question still arises as to how far the
evidence of the power of attorney can be relied on and
can be treated as a substitute for the evidence of the
appellant himself. As held by the Supreme Court in
M.P.Rural Agrl.E.O.Assn. v. State of M.P. (2004 (2)@@
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KLT 265 (SC), the power of attorney can give evidence@@
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only in respect of acts done by him in the exercise of
powers granted by the instrument, but he cannot depose
for the principal in respect of the matter on which the
principal alone can have personal knowledge. In the
absence of sufficient pleadings to raise an issue on the
particular sect to which the parties belonged to and an
issue raised in that respect, it may not be proper to
defeat the claim for maintenance on such technical
contentions. It is to be noticed that the appellant is
claiming a special exemption from the general law of the
land. It is, no doubt, true that though generally a
neglected wife is entitled to maintenance if the personal
law of the parties is otherwise the husband may be
entitled to resort to the personal law. But such claims
must be beyond doubt. If as noted in this case the
majority of Muslims in Kerala especially in South Malabar
are Shafis, we are of opinion that it will be most unjust
to start with a presumption that they are Hanafis and in
the absence of pleading and proof, to hold that neglected
wife is not entitled for arrears of maintenance. We are
of opinion that Justice Pareed Pillay was fully justified
in taking judicial notice of the fact that Hanafis in the
State are only in the minority and majority of the
Muslims in Kerala follow Shafi School. This is supported
by the observation in the Madras District Gazetteers
(Malabar), Volume 1, page 188 wherein it is stated that
the Mappilas belong to the Shafi School of the Sunni Sect
of Mohammadans. As early as in 1937, the Madras High
Court in Kutti Umma v. Nedungadi Bank Ltd., Calicut (AIR@@
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1937 Madras 734) also found that the doctrines of Shafi@@
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School are found among the Mappilas of South Malabar
generally. In Mulla’s Principles of Mohammadan Law, in
paragraph 28, it is stated as follows:
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“The Sunnis are divided into four
sub sects, namely, the Hanafis, the
Malikis, the Shafeis and the
Hanbalis…..Considerable groups of
Mahommedans in the south of India, such as
Kerala and Malabar, are Shafeis”.
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.SP 2
In view of the above weighty authorities, the counsel for
the appellant is not right in contending that in the
absence of pleading and proving to the effect that the
parties are to be presumed to be Hanafis and therefore
the plaintiff is not entitled for past maintenance. This
point is therefore found in favour of the respondent and
against the appellant.
Point No.2@@
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5. The question whether the respondent is
entitled for maintenance will depend upon the question
whether there was a valid divorce effected between the
parties. The learned counsel for the appellant mainly
relied on Ext.B2 deposition in C.C.No.49 of 2001 produced
in O.P.No.191 of 2004. C.C.No.49 of 2001 was filed by
the respondent against the appellant before the Judicial
First Class Magistrate under S.498-A of the Indian Penal
Code. In the evidence of the respondent, she had stated
that the appellant had pronounced talaq three times on
14-2-2000. According to the counsel for the appellant,
that is sufficient admission to the effect that there is
a valid divorce between the parties. The appellant has
no case that he has divorced the respondent on 14-2-2000.
On the other hand, according to him, she was divorced on
23-7-1999. The question to be considered is whether in
this case there is any evidence of a valid divorce by
pronouncement of talaq under Mohammadan Law. The general
impression as reflected in the decision of a Division
Bench of this Court in Pathayi v. Moideen (1968 KLT 763)@@
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was that the only condition necessary for a valid
exercise of the right of divorce by a husband is that he
must be a major and of sound mind at the that time and he
can effect divorce whenever he desires and no witnesses
are necessary for dissolution of the marriage and the
moment when talaq is pronounced, dissolution of marriage
is effected; it can be conveyed by the husband to the
wife and it need not be even addressed to her and it
takes effect the moment it comes to her knowledge etc.
But this can no longer be accepted in view of the
authoritative pronouncement of the Supreme Court in
Shamim Ara v. State of U.P. (2002 (3) KLT 537 (SC). In@@
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that decision the Apex Court accepted the view of the
Division Bench decision of the Gauhati High Court in
Must.Rukia Khatun v. Abdul Khalique Lasker (1981) 1 GLR@@
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375) Baharul Islam, J., as His Lordship then was,@@
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speaking for the Bench, and of the same learned Judge in
Jiauddin Ahmed v. Mrs.Anwara Begum (1981) 1 GLR 358)@@
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that to be a valid talaq it should be for a reasonable
cause and be preceded by attempts at reconciliation
between the husband and the wife by two arbiters – one
from the wife’s family and the other from the husband’s
side and if the attempts fail talaq may be effected. The
Supreme Court has also approved the view of the learned
Judge and jurist, V.R.Krisha Iyer, J., of this Court in
Yousuf Rawther v. Sowramma (1970 KLT 477) holding that@@
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it is a popular fallacy that a Muslim male enjoys, under
the Quaranic Law, unbridled authority to liquidate the
marriage. The Holy Quran expressly forbids a man to seek
pretexts for divorcing his wife, so long as she remains
faithful and obedient to him. Justice Krishna Iyer has
referred to various authorities to come to the conclusion
that divorce was permissible in Islam only in case of
extreme cases and where reconciliation has failed. In
Shamin Ara’s case (2002 (3) KLT 537 (SC), the Supreme@@
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Court disapproved the action of the presiding Judge in
relying on the affidavit of the husband in some civil
suit wherein he had stated that he had divorced the wife
and the Family Court had accepted the affidavit in
corroboration of the contention of the husband that he
had divorced the wife.
6. The only thing to be further considered in
this case is whether the divorce alleged to have been
effected by the husband by pronouncement of talaq on
23-7-1999 is proved or not. The mere pronouncement of
talaq three times even in the presence of the wife is not
sufficient to effect a divorce under Mohammadan Law. As
held by the Supreme Court in Shamim Ara’s case (2002 (3)@@
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KLT 537 (SC), there should be an attempt of mediation by@@
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two mediators; one on the side of the husband and the
other on the side of the wife and only in case it was a
failure that the husband is entitled to pronounce talaq
to divorce the wife. The marriage between the appellant
and the respondent was on 20-9-1998. After two months of
joint living the appellant went abroad. According to the
wife, she was compelled to leave the marital house on
account of the ill-treatment and demand for additional
gold ornaments and mental cruelty. To prove talaq the
appellant-husband was not examined. As already observed
earlier, the father who is the power of attorney holder
is not competent to give evidence as to the circumstance
and the manner in which talaq was pronounced. Though it
is stated by Pw.1 that talaq was pronounced in the
presence of Aboobakcer, Alavikunju and Basheer, none of
them was examined in court. The husband was admittedly
working in Jiddah on 23-7-1999. Though it was argued
that the information regarding talaq was conveyed through
post, no document was produced in support of the same.
7. Even assuming that the evidence of power of
attorney holder can be looked into as evidence on behalf
of the appellant, we have to consider as to what he has
stated in evidence. In M.C.No.561 of 2003 even the chief
examination was in court and not by affidavit. All that
he has deposed is that since there is no marriage
relationship between his son and the appellant there is
no liability for his son to pay maintenance. He has not
given any of the details of talaq. In O.P.No.191 of 2004
which was for arrears of maintenance, the chief
examination is by affidavit. Though it is stated in
paragraph 8 of the affidavit that one Abdulrahiman Haji
and Valappil Mohamed were the mediators and that the wife
did not agree for further continuing the marriage, none
of them was examined in court. There is no case that
there were two mediators; one on the side of the wife and
the other on the side of the husband, to settle the
disputes which was a failure. Even assuming that the
wife has stated that the husband had pronounced talaq
thrice on 14-2-2000 if by that mere pronouncement of
talaq there was no valid dissolution of marriage, that
admission by itself will not stand in the way of her
claiming maintenance or arrears of maintenance. She has
never admitted that she has been validly divorced by the
appellant. Rw.1 has admitted that on 14-2-2000 the
appellant has not dissolved the marriage between him and
his wife. In the absence of any evidence, whatsoever to
substantiate the case of a valid talaq, we are of opinion
that the appellant is not entitled to resist the claim
for maintenance on the ground that there was already a
divorce of the marriage between the parties. In view of
the decision of the Supreme Court quoted earlier, we find
that the appellant has not succeeded in establishing a
valid talaq and the finding of the Family Court is only
to be upheld and we do so.
In the result, there is no merit in the appeal
and the revision and they are dismissed with costs.
October 5, 2005.
arn.
R.Bhaskaran, Judge.
K.P.Balachandran, Judge.
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R.Bhaskaran &
K.P.Balachandran, JJ.
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Mat.App.No.76 of 2005 &
R.P.(FC).No.49 of 2005
Judgment
October 5, 2005
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