Mariyam Akhter & Anr vs Wazir Mohd on 14 October, 2010

Jammu High Court
Mariyam Akhter & Anr vs Wazir Mohd on 14 October, 2010
       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
Cr Rev No. 51 OF 2005 AND Cr M P No. 15 OF 2005    
Mariyam Akhter & anr 
Petitioners
Wazir Mohd  
Respondent  
!Mr. Nirmal Kotwal, Advocate
^Mr. S. S. Ahmed, Advocate 

Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice
Date: 14.10.2010 
:J U D G M E N T :

Introduction:

Before delving upon to resolve the issue raised in the instant revision petition, it is
considered that the judgment will be benefited if the status of Muslim women, vis-
`-vis, the scope and effect of valid divorce as mandated under the Mohammadan
law is highlighted. The same is, accordingly, discussed hereinunder.

During the early period of Islam, Muslim women were held in high esteem and they
occupied exalted positions and in the days of Holy Prophet Mohammad, a Muslim
woman was given in the society a position of equality with the opposite gender.
Equal treatments were meted out to the women. The ladies of the family of the
Prophet were noted for their learning, their virtue, courage and their strength of
character. (See S.A.Kaders Muslim Law of Marriage and Succession in India, p.
80-81)

Even, in the terms of modern concept of giving gender justice, which is essential,
integral and inseparable part of human rights, women, who form one half of the
human race, have every right to claim equality before law and equal protection of
laws as envisaged under Article 14 of the Constitution of India.

Therefore, when women have the right to marry, they have also the right to be
maintained by their husbands. This right has been emphasized in Article 6(1) of
Universal Declaration of Human Rights adopted and proclaimed by the General
Assembly of the United Nations on 10th December 1948 declares thus:-
Men and women, of full age, without any limitation due to race, nationality or
religion, have the right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution.

5. The Verse 35 Sura Al-Ahzab (35) of the Holy Quran would clearly show that
how the women were treated as equals with men. The Verse 35 reads thus-

For Muslim men and women,
For believing men and women,
For devout men and women,
For true men and women,
For men and women who are
Patient and constant, for men
And women who humble themselves,
For men and women who give
In charity, for men and women
Who fast
For men and women who
Guard their chastity, and
For men and women who
Engage much in Allahs remembrance
For them has Allah prepared
Forgiveness and great reward.

However, in post-Islamic period, it is seen that the degradation and degeneration set
in, in the status of women. In male-dominated world, Muslim women were pushed
to the whims and fancies of the men- folk and this is reflected primarily in the case
of dissolution of marriage, i.e., divorce, which is known as Talaq in Arabic
meaning. The doctrine of talaq-ul-bidet (triple talaq-one form of talaq) was evolved
as a convenient divorce to dissolve the marriage at the will and whims of the
Muslim husband.

None the less, it is incumbent on the part of Muslim husband to maintain his wife so
long as she is loyal and faithful to him and obeys his reasonable orders. But once
she is divorced, she is entitled to maintenance as per law being in force in India, i.e.,
Muslim Women (Protection of Rights on Divorce) Act, 1986.

In the above background, it is to be considered that under what circumstances a
Muslim married woman can be divorced and what are the essential conditions for
causing divorce and procedure to be followed to effect a valid divorce.

The instant revision petition witnesses the deliberation of these fundamental issues
pertaining to the validity of the pronouncement of the divorce to a Muslim woman,
vis-`-vis, her entitlement to maintenance, as married woman. Maintenance
includes food, raiment and lodging (Mulla-Mohammedan Law, para-369)

Factual Matrix in brief outlined:

The petitioner herein was married to the respondent on 12.5.1991 and the marriage
between them was solemnized according to Muslim rites (Sharah Mohmdi) at Incha
Mohra Kula Tehsil Ramnagar. After marriage, both of them lived like husband and
wife at the respondents residence. As luck would have it, the petitioners marriage
life experienced turbulence. She was meted out ill-treatment by the respondent. The
respondent used to beat her and made false allegations of unchastity on her.

Eventually, she was driven out of her husbands house five and half months after
the marriage and, on the relevant time, she was pregnant. The respondent also
snatched her ornaments and clothes and did not care to look after her till date and
she was compelled to stay at her parental house, since she was turned out from her
matrimonial house.

Meanwhile, she had born the respondent a female child. Even after the birth of their
daughter, the respondent refused to pay any maintenance either to the petitioner or
to her baby child.

Finding no other alternative, the petitioner initiated proceeding under Section 488
of the Code of Criminal Procedure Svt. 1989 (for short Cr. P. C) for granting
maintenance allowance of Rs. 1000/- per month to her and Rs. 500/- per month to
her daughter against the respondent-husband before the Court of Sub-Judge(Judicial
Magistrate Ist Class), Ramnagar.

It is on record that on 22.6.1994, the respondent, on being noticed, appeared before
the Court and granted opportunities to file objections from 22.6.1994 to 24.9.1994.

On 17.10.1994, being an adjourned date, neither the respondent nor his engaged
counsel appeared in the Court and their absence resulted in ex-parte proceedings
against the respondent.

Meanwhile, the respondent moved a revision petition before this High Court for
transfer of the present petition, but the same was dismissed by the High Court on
6.5.1995 with a direction to the Court of Sub-Judge (Judicial Magistrate Ist Class),
Ramnagar to decide the claim of the petitioner within a period of three months,
directing the parties to appear before the Court on 29.5.1995.

But on 29.5.1995 also, neither the respondent nor his counsel appeared before the
Court despite directions given by the High Court and, ultimately, the matter was
fixed on 2.6.1995, on which date also the respondent preferred not to appear in
person or through counsel.

Finally, the matter was heard on 24.6.1995 and after having considered the evidence
and arguments on behalf of the petitioner, maintenance allowance of Rs. 350/- per
month and Rs. 250/- per month were granted to the petitioner as well as petitioner
no. 2, daughter of the petitioner respectively.

Being dis-satisfied with the granting of such maintenance, respondent-husband
moved the Court of Sessions, Judge, Udhampur by filing a revision petition being
no. 3/1996, which was dismissed by the learned Judge by his order dated
19.12.1997.

It is pertinent to mention herein that meanwhile, the respondent has contracted
second marriage and has been living with his second wife and a daughter has been
born to his second wife from him.

Be it also noted herein that the respondent, on 8.8.1995, made an application before
the Magistrate for setting aside the ex-parte order of maintenance granted by order
dated 24.6.1995 in file no. 17/Misc of 1995. The application for setting aside the
ex-parte order of maintenance is extracted below:

The respondent applicant most respectfully submits this application as under:-
That the above titled proceedings were pending in this court against the applicant
respondent for maintenance.

That the applicant had filed a Criminal Transfer application No. 66 of 1994 in the
High Court to transfer the said proceedings to any court at Jammu because the
applicant respondent apprehended harm at the hands of the relatives of the
petitioner in this above titled maintenance application.
That the Criminal Transfer application of the applicant respondent was dismissed
by the Honble Court on 6th May, 1995. The applicant was not personally present in
the Honble High Court when the order was made. A photo copy of the order is
filed and marked Annexure-1.

That the applicant received information by post from the advocate vide his letter
dated 16th June, 1995 photo copy whereof isw filed and marked Annexure-2.
That therefore the applicant did not know that the applicant had to appear in this
court on 29th of May, 1995 and was, therefore, not present on that day in this court.
That it appears that the advocate of the applicant did not take steps to inform the
applicant respondent in the above proceedings because his clerk was absent and he
was busy. In any case, for the negligence of the advocate, the applicant should not
suffer because the applicant had properly instructed and engaged the said advocate.
That the absence of the applicant respondent was, therefore, for the reasons beyond
the control of the applicant respondent who all along remained under the impression
that the transfer matter is still pending in the High Court. The absence of the
applicant respondent was, therefore, not deliberate and the applicant had,
therefore, not been absent wilfully or deliberately.

That, however, it appears that the exparte proceedings were ordered against the
applicant herein on 2nd June, 1995 and exparte order directing the payment of
maintenance was made on 24th of June, 1995.

That the applicant Marriyam Akhtar in the absence of the applicant respondent
concealed the fact that she had been divorced vide divorce deed dated 18.5.1992. A
legible copy of the divorce deed is also filed herewith for ready reference.
That in this court Shri Sudesh Kumar Advocate represented the applicant
respondent. However, it appears that no notice was sent to him by this court after
the file was received from the Honble Court.

That all the proceedings under Sec. 488 Cr. P. C had to be conducted in the
presence of respondent. However, in this case the respondent has been proceeded
against exparte and as stated above the absence was neither wilful nor deliberate.

An affidavit duly sworn in is enclosed herewith in support of this application.

IN THE PREMISES
It is most respectfully prayed that your honour may be pleased to allow this
application and to set aside the exparte order dated 24.6.95 and to afford the
applicant an opportunity to appear and contest the application of the petitioner
referred above.

Sd/-

Applicant-respondent
through counsel
Dated 1.8.1995.

Having failed to get any relief against the order of granting of maintenance
allowance, the respondent preferred an application under Section 489 of the Cr. P.
C being file no. 19-A/Misc before the Judicial Magistrate Ist Class, Ramnagar for
cancellation of the Courts order dated 24.6.1995, which awarded monthly
maintenance allowance to the petitioner and her child, claiming that she was not
entitled for any maintenance for the reasons that:

the respondent divorced the petitioner through written divorce executed on
18.5.1992, which was duly communicated to her through registered post;
such divorce was admitted by the petitioner by executing an agreement on 4.1.1993;
and
the petitioner admitted voluntarily to be divorcee while making a statement before
the Tehsildar, Ramnagar in a proceeding for seeking Residents of Backward Area
Certificate for her.

The learned Magistrate by order dated 22.2.2002, having considered the statements
made in the application as well as upon hearing the parties, found that the petitioner
was divorced on 8.8.1995 or on 18.5.1992 as stated in para 9 of the application for
seeking to set aside the exparte order dated 24.6.1995, as quoted herein above at
paragraph 22 of the judgement and the Ruling that the respondent-husband had
unfettered power of divorce and, accordingly, it was held that the petitioner, being
the divorcee wife, should have no claim to maintenance after 8.8.1995. However,
according to Court, the child would continue to get the maintenance, as awarded.

The order dated 22.2.2002 was carried to the High Court by the petitioner in Cr.
Rev. no. 27/2002. This Court vide order dated 10.12.2002 refraining itself from
rendering any decision as to whether there was a valid divorce against the
petitioner, only dealt with the quantum of maintenance and modified the
maintenance allowance granted under order dated 22.2.2002 holding that the
daughter would be held entitled to interim maintenance at the rate of Rs. 1000/- per
month to the exclusion of the petitioner. It was further held as under:-
As to whether valid divorce or not, parties are left free to put this aspect
before the Court below. This issue would be settled and the parties can lead
evidence. Parties would appear before the trial Court on 24th of January, 2003.
Further maintenance would depend on the final verdict of the Court.

With the above directions, this Court remitted the matter back to the Court below.

The learned Magistrate on receipt of the order of the High Court and in compliance
of the directions to resolve the issue of divorce between the parties, proceeded to
decide the application and examined three witnesses adduced by the petitioner-
wife, when two witnesses were examined for the respondent-husband.
Having appreciated the evidence so recorded and also upon hearing the learned
counsel for the parties, learned Magistrate came to the conclusion that the
respondent-husband divorced his wife/ the petitioner in accordance with the
Mohammadan Law, and, as such, the petitioner is not entitled to claim maintenance
from the respondent being the divorcee wife. Accordingly, the application under
Section 489 Cr. P. C was disposed of, maintaining the modified order passed by the
High Court on 10.12.2002, as regard the maintenance allowance to petitioner no. 2,
their daughter

(C) Order under challenge:

Order dated 26.2.2005, as mentioned above, has been assailed by the petitioner
pleading that:

There is no valid divorce ever pronounced by the respondent against her;
The procedure of divorce, i.e., Talaq has not been strictly followed; and
Petitioner, being continued to be wife, is entitled to get the maintenance.

In consideration of the above, it is the case of the petitioner that the impugned order
is liable to be set aside and quashed.

(D) Arguments Against the impugned order:

Mr. Nirmal Kotwal, learned counsel representing the wife-petitioner has
vehemently contended that the learned Magistrate committed error both in law and
on facts in entertaining the application under Section 489 Cr. P. C. itself and
thereby disentitling the petitioner from getting maintenance. According to him, such
finding was legally incorrect, based on no evidence, and against the basic principles
of Muslim law.

Rejecting the divorce, at the very outset, the learned counsel has submitted that no
divorce was ever pronounced by the respondent to the petitioner at any point of
time. The divorce deed dated 18.5.1992 produced by the respondent and relied by
the Magistrate was never received by the petitioner and the same has already been
disputed and rejected by her. The finding of the learned Magistrate to the effect that
the divorce was pronounced by the husband much earlier before the maintenance
proceedings, i.e., the divorce was pronounced on 18.5.1992 and the petition for
maintenance was instituted on 4.11.1992, i.e., after six months, cannot be legally
accepted, for the simple reason that it is on the record that after institution of
petition for maintenance on 4.11.1992, due notices were sent to the respondent and
he, for the reasons best known to him, neither appeared nor filed any written
statement through which he could have informed the court the factum of divorce
against his wife. Instead, he preferred an application before the Honble High Court
for transfer of the case from Ramnagar to Jammu in Cr. Revision no. 63/1994 on
the ground that it was not convenient for him to go to Ramnagar and faced a threat
to his life from his wife/ the petitioner and the said application was rejected by the
High Court by order dated 6.5.1995. Conveniently the respondent did no mention or
divorce caused on 18.5.1992 in the said application so as to bring it to the
knowledge of the petitioner.

The submissions of the learned counsel is that the respondent having got ample
opportunities to file written statement, neither he appeared before the Court nor did
he file the written statement.

It is further contended that reliance on the cutting of the daily English newspaper
Kashmir Times as a proof of factum of divorce and its knowledge to the petitioner
by the court below is not tenable under law. The petitioner, being a lady from
Ramnagar, did not have any knowledge about such paper publication not being
prominently exhibited in the concerned newspaper which was not in wide
circulation in the area where the petitioner did reside and the same is clearly evident
from such publication itself. In a case of divorce, of present nature, such publication
is not acceptable under the law.

As regards the finding of the learned Magistrate pertaining to the admission made
before the Tehsildar, Ramnagar by the petitioner on her divorce, it is contended
that said admission is valid in law because the same was not made in any
proceedings in the Court of law and was not to be put any cross-examination. Even
the Tehsildar, before whom such statement was made, was not examined by the
respondent to prove the said factum. According to the learned counsel this is not
acceptable under the law of evidence. Mere making of such statement before a
Tehsildar in a matter of seeking Residence of Backward Area Certificate will not
go to show that the petitioner was a divorcee and thereby to make her
disentitlement from getting maintenance.

The last contention advanced on behalf of the petitioner is that the alleged divorce
was not pronounced in terms of the provisions of Muslim law based on Quranic
injunction and, as such, the instant divorce, genuineness of which has been strongly
objected and refuted by the petitioner, is not a divorce in the eye of law.
In order to bolster up his submission, Mr. Kotwal has relied on the following
judicial authorities of the Supreme Court and of this Court:-
Shamim Ara v. State of U. P. and anr (AIR 2002 SC 3551);

Manzoor Ahmad Khan v. Mst. Saja and ors (2003 (II) SLJ 619); and
Mst. Amina Banoo v. Abdul Majid Ganai (2005 (I) SLJ 341).

(E) Submission and contention in support of the impugned judgment:

supporting of the impugned judgment, Mr. S. S. Ahmed, learned counsel for the
respondent has forcefully argued that under the Muslim Law, right of pronouncing
divorce has been absolutely bestowed upon the husband who can only pronounce
the Talaq in any form as Mohammadan law does not prescribe any particular form
for causing divorce. A divorce can be effected either by orally by spoken word or
by written document. In the instant case, the petitioner was divorced by written
divorce deed on 18.5.1992, six months before the initiation of the maintenance
proceedings by the petitioner on 4.11.1992. Even thereafter also, divorce was
effected by an agreement executed by both the parties on 4.1.1993 and the
petitioner was very much aware of both the written documents, more particularly
agreement of 4.1.1993, where she was a party.

His further contention is that assuming, divorce was not effected by those above
mentioned documents, it is the petitioner, who herself admitted about her divorce
by making a statement in file no. 143/NB dated 28.7.1995, wherein her statement
was recorded on 21.12.1997 by the Tehsildar, Ramnagar, before whom she sought
for a Residence of Backward Area certificate, to the effect that she was a divorcee.
Her this statement itself was sufficient to prove that the petitioner was divorced by
the respondent.

To substantiate his submission, he has relied upon a decision of the Apex Court in a
case of Thiru John v. The Returning Officer and ors, reported as AIR 1977 SC
1724, wherein in paragraph 15, it was held that it was well settled that a party s
admission as defined in Sections 17 to 20 of the Evidence Act, 1872 (the Act)
fulfilling the requirements of Section 21, of the Act, was substantive evidence
proprio vigore. An admission, if clearly and unequivocally made was the best
evidence against the party making it and though not conclusive, shifted the onus on
to the maker on the principle that what a party himself admits to be true may
reasonably be presumed to be so and until the fact admitted was rebutted the fact
admitted must be taken to be established.

(F) Issues to be decided:

39. Having heard learned counsel for the parties at length as well as on
thorough scrutiny of the factual situation emerged from the arguments advanced on
behalf of the parties, the basic questions that have arisen for resolution in this case,
are:

Whether there had been a divorced duly effected under the Mohammadan law
against the petitioner.

Whether the divorce was proved.

(G) Tenets of Mohammadan Law on Divorce:

40. According to Mulla in his Principles of Mohammadan law (19th Edition) By
M. Hidayatullah and Arshad Hidayatullah, the contract of marriage under
Mohammadan law may be dissolved in any one of the following ways : (1) by the
husband at his will, without the intervention of a Court; (2) by mutual consent of
the husband and wife, without the intervention of a Court; (3) by a judicial decree at
the suit of the husband or wife. However, the wife cannot divorce herself from her
husband without his consent, except under a contract whether made before or after
marriage, but she may, in some cases, obtain a divorce by judicial decree( Section
307 page 258).

41. When the divorce proceeds from the husband, it is called talak; when it is
effected by mutual consent, it is called khula or mubaraat, according to the terms of
the contract between the parties.{ (Mullas Principles of Mohammadan Law
(supra) (Section 307) By M. Hidayatullah and Arshad Hidayatullah at page 258)}.

42. A talak may be effected (1) Orally (by spoken words) or (2) by a written
document called a talaknama. So far oral talak is concerned, no particular form of
words is prescribed for effecting a talak. If the words are express (saheeh) or well
understood as implying divorce, no proof of intention is required. If words are
ambiguous (kinayat), the intention must be proved. It is not necessary that talak
should be pronounced in presence of the wife or even addressed to her.

43. As regards talak in writing, talak can be effected by a written document
called talaknama. It is required that such type of deed may be executed in presence
of the kazi or of the wifes father or of the other witnesses. The deed is said to be in
the customary form if it is properly superscribed and addressed so as to show the
name of the writer and the person addressed. If it is in customary form it is called
manifest provided that it can be easily read and comprehended. If the deed is in
customary form and manifest the intention to divorce is presumed. Otherwise, the
intention to divorce must be proved. {Mullas Principles of Mohammadan Law
(supra) (Section 310 page 259)}.

44. There are two kinds of talaq as recognized under HanafIs Mohammedan
Law namely; (i) Talaq-us-sunnat and (ii) Talaq-ul-bidat or (iii) Talaq-ul-badai.
Talaq-us-sunnat is effected in accordance with the rules laid down in the traditions,
i.e., Prophet Sunnat headed down by him or by his principle disciples. On the other
hand, the talaq-ul-bidat is heretical or irregular mode of divorce which was
introduced in 2nd Century of Mohammedan era. In this kind of talaq, as a matter of
fact, there is capricious and irregular power of divorce ,which was, in the
beginning, left to the husband, was strongly disapproved by the Prophet.

45. Talaq-us-sunnat is either Talaq Ashan or Talaq Hasan. The mode of giving
this talaq may be discussed as under:-

(1) Talak ashan, which consists of a single pronouncement of divoce made during a
tuhr (period between menstruations) followed by abstinence from sexual
intercourse for the period of iddat.

(2). Talak hasan that consists of three pronouncements made during successive
tuhrs, no intercourse taking place during any of the three tuhrs. And

(3) Talak-ul bidaat or talak-i-badai which consists of three pronouncements made
during a single tuhr either in one sentence, e.g., I divorce thee thrice, – or in a
separate sentences, e.g., I divorce thee, I divorce thee, I divorce thee.

The above proposition of law as regards divorce or talaq primarily emerged from
the text of Holy Quran, which is the primary source of Muslim law on the
relationship between the husband and the wife as well as pronouncement of divorce
by the husband against the wife.

The mode and procedure to effect a valid divorce has been mandated in the Holy
Quran. The Holy Quran ordains in clear and un-equivocal terms for re-conciliation
to effect a valid divorce in Sura Nisa (4). In this regard Verses Nos. 128 to 130,
being relevant, may be quoted as under:-

128. If a wife fears
Cruelty or desertion
On her husbands part,
There is no blame on them
If they arrange
An amicable settlement
Between themselves;

And such settlement is based;
Even though mens souls
Are swayed by greed.

But if ye do good
And practice self-restraint,
Allah is well-acquainted
With all that ye do.

129. Ye are never able
To do justice
Between wives
Even if it is
Your ardent desire;

But turn not away
(From a woman) altogether,
So as to leave her
(as it were)
Hanging (in the air).

If ye come to a friendly
Understanding, and practice
Self-restraint, Allah is
Oft-forgiving,
Most merciful.

But if they separate
Allah will provide abundance
For each of them from His
All-reaching pounty;

For Allah is He
That careth for all
And is wise.

(see the Holy Quran English Translation of the
Meaning and the Commentary (Revised and Edited) by
the Presidency of Islamic Researchers, IFTA, Mushaf Al-Madinah).

48. Even recognition of the institution of marriage is manifest from the Quranic
Verses in Sura Nisa (4). In Verse No. 1 wherein, it is mandated as under:

1. O mankind ! fear
Your Guardian Lord,
Who created you
From a single Person,
Created, out of it,
His mate, and from them twain
Scattered (like seeds)
Countless men and women;-
Fear Allah, through Whom
Ye demand your mutual (rights),
And be heedful of the wombs
(That bore you): for Allah
Ever watches over you.

{see the Holy Quran (Supra)}.

49. The learned Commentator Yousuf Ali in his Book Translation and
Commentary of Holy Quran at note 254 page 90, commenting on the subject of
talaq has observed;-

Islam tried to maintain the married state as far as possible. Especially where
children are concerned, but it is against the restriction of the liberty of men and
women in such vitally important matters as love and family life. It will check hasty
action as far as possible and leave the door to reconciliation open at many stages.
Even after divorce a suggestion of reconciliation is made, subject to certain
precautions against thoughtless action. A period of waiting (iddet) for three
monthly courses is prescribed in order to see if the marriage conditionally dissolved
is likely to result in issue. But this is not necessary where the divorced woman is
virgin: it is definitely declared that woman and man shall have similar rights
against each other.

Yousuf Ali (Supra at note 256 page 90) has further observed:

Where divorce for mutual incompatibility is allowed, there is danger that the
parties might act hastly, then repent, and again wish to separate. To prevent such
capricious action repeatedly, a limit is prescribed. Two divorce (with a
reconciliation between) are allowed after that the parties must unitedly make up
their minds , either to dissolve their union permanently or to leave honourable lives
together in mutual love and forbearance to hold together or equitable terms,
neither party worrying the order nor grumbling nor evading the duties and
responsibilities of marriage.

Yousuf Ali proceeds:

All the prohibitions and limits prescribed here are in the interest of good
and honourable lives for both sides, and in the interest s of a clean and honourable
social life without public or private scandals..

50. The Holy Quran lays down the procedure for effecting a re-
conciliation. Verse No. 35 Sura Nisa (4) provides as under:-

35. If ye fear a breach
Between them twain,
Appoint (two) arbiters,
One from his family,
And other from hers;

If they seek to set thighs aright,
Allah will cause
Their reconciliation:

For Allah hath full knowledge,
And is acquainted
With all things.

51. In the above verses, the Holy Quran stipulated a condition precedent to
divorce. Yusuf Ali, the great Jurist and Commentator (Supra) at Note 549 page 191,
observed about the above those verses as follows:

An excellent plan for settling family disputes, without too much publicity or mud-
throwing, or resort to the chicaneries of the law. The Latin countries recognize this
plan in their legal system. It is a pity that Muslim do not resort to it universally, as
they should. The arbiters from each family would know the idiosyncraeies of both
parties, and would be able, with Gods help, effect a real reconciliation.

Maulana Mohammad Ali in his book Religion of Islam at page 671 commented
that:

This verse lays down the procedure to be adopted when a case for divorce arises. It
is not for the husband to put away his wife; it is the business of the judge to decide
the case. Nor should the divorce case be made too public. The Judge is required to
appoint two arbitrators, one belong to the wifes family and the other to the
husbands. These two arbitrators will find out the facts but their objective must be
to effect a reconciliation between the parties. If all hopes of reconciliation fail a
divorce is allowed. But the final decision rests with the judge who is legally entitled
to pronounce a divorce. Cases were decided in accordance with the directions
contained in this verse in the early days of Islam.

53. Commenting further on these verses, Maulana Mohammad Ali (Supra)
observed:

From what has been said above, it is clear that not only must there be a good cause
for divorce, but that all means to effect reconciliation must have been exhausted
before resort is had to this extreme measure. The impression that a Muslim husband
may put away his wife at his mere caprice, is a grave distortion of the Islamic
institution of divorce.

Keeping in view these teachings of the Holy Quran, the Prophet declared divorce to
be a most hateful of all things permitted. The mentality of the Muslim is to face
difficulties of the married life along with its comforts and to avoid disturbing the
disruption of the family relations as long as possible, turning to divorce only as a
last resort.

A close perusal of our Quranic verses as quoted above and commentaries thereon
by well recognised scholars of great eminence would come to indicate that no
divorce is duly effected if it is in violation of injunction of Holy Quran. Ameer Ali
in his treaties on Mohammedan Law observed :

The Prophet pronounced talak to be a most destable thing before the Almighty
God of all permitted things. If talak is given without any reason it is stupidity and
ingratitude to God.

(I) Judicial Interpretation:

It is said that talaq is a sword which is brandished by the Muslim husband against
his wife with whims and caprice. Even judicial authorities gave in the past its nod
to this concept of talaq to be exercised by the husband.

In the case of Ahmad Kasim Mulla v. Khatun Bibi, reported in ILR 59 Calcutta 833,
which has so long been regarded as a leading case on the law of divorce, Justice
Costello held as under:-

Upon that point (divorce), there are a number if authorities and I have carefully
considered this point as dealt with in the very early authorities to see whether I am
in agreement with the mere recent decisions of the Courts. I regret that I have to
come to the conclusion that as the law stands at present, any Mohamedan may
divorce his wife at his mere whim and caprice.

In another case of Sarabai v. Babiabai (ILR 30 Bombay 537), while observing that
divorce can be effected mere on whims, held:

It is good in law, though bad in theology.

59. However, the whole approach to Muslim divorce has started changing with
the deeper study of the subject that discloses significantly realistic, rational and
modern law divorce. Those are effectively reflected in the judicial decisions of the
recent years. The Kerala High Court speaking through Krishna Ayer, J (as the then)
in case of A. Yusuf Rawther v. Sawramma, reported in AIR 1971 Kerala 261, took a
revolutionary view as regards divorce of Muslim women. In paragraphs 6 & 7 it
was held as under:-

6. The interpretation of a legislation, obviously intended to protect a weaker
section of the community, like women, must be informed by the social perspective
and purpose and, within its grammatical flexibility, must further the beneficent
object. And so we must appreciate the Islamic ethos and the general sociological
background which inspired the enactment of the law before locating the precise
connotation of the words used in the statute.

. . . . . . . . .

Since infallibility is not an attribute of the judiciary, the view has been ventured by
Muslim jurists that the Indo-anglian judicial exposition of the Islamic law of
divorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal
distortions are inevitable when the Judicial Committee in Downing Street has to
interpret Manu and Muhammad of India and Arabia. The soul of a culture-law is
largely the formalised and enforceable expression of a communitys cultural norms-
cannot be fully understood by alien minds. The view that the Muslim husband
enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with
Islamic injunctionsIndeed, a deeper study of the subject discloses a
surprisingly rational, realistic and modern law of divorce..It is a popular
fallacy that a Muslim male enjoys, under the Quaranic law, unbridled authority to
liquidate the marriage. the whole Quoran expressly forbids a man to seek pretexts
for divorcing his wife, so long as she remains faithful and obedient to him, if they
(namely, women) obey you, then do not seek a way against them Quoran IV:
34..

Commentators on the Quoran have rightly observed and this tallies with the
law now administered in some Muslim countries like Iraq _ that the
husband must satisfy the Court about the reasons for divorce. However,
Muslim law, as supplied in India, has taken a course contrary to the spirit of what
the Prophet or the Holy Quoran laid down and the same misconception vitiates the
law dealing with the wives right to divorce

Quoting Dr. Galwash, the learned Judge opined :

Marriage being regarded as a civil contract and as such not indissoluble,
the Islamic law naturally recognises the right in both the parties, to dissolve the
contract under certain given circumstances. Divorce, then, is a natural corollary to
the conception of marriage as a contract,.
It is clear, then, that Islam discourages divorce in principle, and permits it only
when it has become altogether impossible for the parties, to live together in peace
and harmony. It avoids, therefore, greater evil by choosing the lesser one, and opens
a way for the parties to seek agreeable companions and, thus, to accommodate
themselves more comfortably in their new homes.
Dr. Galwash, as observed by this Court, concluded that divorce is permissible in
Islam in cases of extreme emergency..

60. The Gauhati High Court in a case of Jiauddin Ahmed v. Mrs. Anwara
Begum, reported as (1981) 1 Gauhati Law Reports 358, authored by Bahorul Islam,
J (the then), following A. Yusuf Rawthers case (Supra), categorically held that a
talaq could not be exercised at a caprice and whim of the husband and an attempt of
reconciliation was a condition precedent to divorce.

61. The ratio of Jiauddin Ahmeds case (supra) approved by Division Bench of
Gauhati High Court in (1) Rukia Khatun v. Abdul Khalique Laskar, reported in
(1981) 1 GLR 375; (2) Zeenat Fatima v. Mohd Iqbal Anwar, reported in 1993 GLR
Supp 256.

62. The Supreme Court in Shamim Aras case (supra) following A. Yusuf
Rawther case (supra) , Jiauddin Ahmed v. Anwara Begum (supra), Rukia Khatuns
case (supra), and relying to observations made in Bai Tahira v. Ali Hussian (AIR
1979 SC 362) wherein the right of maintenance of a Muslim divorcee was dealt,
was in full agreement with the observations made on this judicial proceedings to the
effect that:

Talak must be of reasonable cause ; and
That must be proceeded by an attempt of reconciliation between the husband and
the wife by two arbiters, one chosen by the wife from her family and the other by
the husband from his family.

In paragraph 14, at page 3556 of Shamim Ara (Supra), the Apex Court observed:
We are in respectful agreement with the above said observations made by the
learned Judges of High Court. We must note that the observations were made 20-30
years before and out country has in recent times marched steps ahead in all walks of
life including progressive interpretation of laws which cannot be lost sight of except
by compromising with regressive tends. What this Court observed in Bia Tahira v.
Ali Hussain, AIR
1979 SC 362 dealing with right to maintenance of a Muslim
divorcee is noteworthy. To quote:

The meaning of meanings is derived from values in a given society and its legal
system. Article 15(3) has compelling compassionate relevance in the context of S.
125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-
used wife and the derelict divorcee. This social perspective granted, the resolution
of all the disputes projected is easy. Surely, Parliament, in keeping with Art. 15(3)
and deliberate by design, made a special provision to help women in distress cast
away by divorce. Protection against moral and material abandonment manifest in
Art.39 is part of social and economic justice, specificated in Art.38, fulfilment of
which is fundamental to the governance of the county (Art.37). From this coign of
vantage we must view the printed text of the particular Code.
Law is dynamic and its meaning cannot be pedantic but purposeful.

63. This Court in Manzoor Ahmed Khans (supra) and Mst. Amina Banoos
case (supra) took the same view, as indicated above. It will be apt to quote relevant
portions of the reasons and findings recorded in Manzoor Ahmed Khans (supra).
Relevant Paragraph i.e; 11 is quoted herein below:

The law on Talaq as ordained by Holy Quran is (i) that talaq must be for a
reasonable cause and (ii) that must be preceded by an attempt of reconciliation
between her husband and the wife by two arbiters, one chosen by the wife from her
family and the other by the husband from his. The issue has been subject matter of
judicial scrutiny since long. IN Shamim Ara v. State of U.P. (supra), the Apex
Court has relied upon and quoted the passages from various judgments of various
High Courts which are eye openers for those who think that a Muslim man can
divorce his wife merely at whim or on caprice. One of those illuminating judgments
was recorded by Justice V. R. Krishna Iyer as Judge of the High Court of Kerala (as
his lordship then was) in A. Yousuf Rawther v. Sowramma, AIR 1971 Ker 261. The
Supreme Court, while relying on this judgment, has observed that it is virtually a
research document. While commenting on the above judgment in A. Yousuf
Rawther v. Sowramma, Tahir Mahmood in his book The Muslim Law of India
(third edition 2002 New Version), in Chapter 6 on Divorce has stated as under:

1. Policy of Islamic Divorce Law:

Noting the view of some Muslim scholars that the Indo-Anglican judicial exposition
of the Islamic law of divorce has not been just to its original tests, a learned Judge
of India has observed that indeed a deeper study of the subject discloses a
surprisingly rational, realistic and modern law of divorce.

This observation presents a correct, unbiased and authentic
view of the Islamic law of divorce.

(I) Reasons and Findings:

64. At the very outset it should be noted that the question of talak to be
pronounced by the husband in case of oral divorce does not involve here in this
case. It is no bodys case that the petitioner was divorced by pronouncement of
spoken word by the husband against her. The basic case made out by the
respondent-husband against the petitioner herein is that he divorced his wife by a
written divorce on 18.5.1992 and, that too, prior to the institution of the
maintenance proceedings by the wife on 4.11.1992. According to him, there was an
another agreement executed on 4.1.1993. The case of the respondent is that written
divorce deed dated 18.5.1992 was also sent to the petitioner through registered post.
That apart, the petitioner voluntarily admitted before the Tehsildar, Ramnagar on
28.7.1995, before whom, she filed an application seeking for Resident of Backward
Area certificate, stating therein that she was a divorcee. It was also the case of the
respondent that the factum of divorce was published in daily newspaper Kashmir
Times on 9.11.1992.

65. So the entire matter revolves around as to whether the divorce has been
duly effected by the above written divorce deeds or by her admission before the
Tehsildar, Ramnagar or by publication in the newspaper Kashmir Times.

66. In support of their respective claims, both parties adduced evidence
examining the witnesses.

67. The petitioner has strongly objected and refuted both the agreement of
divorce as well as the written divorce deed. According to her, she has never
executed any agreement of divorce on 4.1.1993, as claimed by the respondent nor
had she received any written divorce deed dated 18.5.1992 by registered post.

68. Records placed before this Court do not reveal any document to show that
the written divorce deed dated 18.5.1992 was ever sent by registered post. In fact, in
the instant case, the respondent/ husband, as it appears, did not make any attempt to
prove those documents relied upon by him.

69. Amazingly, from a close perusal of the record, it transpires that the
respondent did not appear before the proceedings initiated by the petitioner against
him for granting maintenance on 4.11.1992 in her favour and in favour of her
daughter nor had he preferred any written statement. By filing written statement
before the Court, he would have brought on record the written divorce deed dated
18.5.1992. In that case, a written statement stating of divorce filed by the husband
would have been amounted to divorce.

70. It is on the record and also appears from the submissions and contentions
that instead of filing written statement, he having taken this plea or that plea ,
moved the higher forum either for transfer of the case or for cancellation of the
maintenance allowance having been granted by the Magistrate.

71. This Court has also considered the submissions put forward on behalf of the
parties as regards the paper publication, as noted above, by which the respondent
has declared that he has divorced the petitioner. Carefully perused the paper cutting,
in question, published in daily newspaper Kashmir Times which has been placed
as Exhibit before the Court. The said paper cutting itself would indicate that the
same lacks adequate and prominent exhibition in the space of the newspaper which
can easily be skipped from the sight of an ordinary reader. Besides, the nature of
publication, as noticed, would not help the husband/respondent to prove that the
divorce was effectively executed.

72. The plea of admission made before the Tehsildar, Ramnagar has also been
given due consideration. The admission, as claimed on behalf of the respondent, is
not an admission made in a proceeding. In this regard, the judicial authority
reported in Thiru Johns case (Supra) relied upon to support the contention of
admission by the petitioner as she is a divorcee, in our opinion is not applicable in
the case in hand. Reason is that in the cited case, at paragraph 15 at page 1726 the
Supreme Court observed that it was well settled that a partys admission as defined
in Sections 17 to 21 of the Evidence Act, fulfilling the requirements of Section 21
of the Evidence Act. In the instant case, the so called admission, ex-facie does not
fulfil the provisions of Section 21 of the said Act. In this connection, it would be
proper and necessary to quote Section 21 of the said Act.

21. Proof of admissions against persons making them, and by or on their
behalf-admissions are relevant and may be proved as against the persons who
makes them, or his representative in interest; but they cannot be proved by or on
behalf of the persons who makes them or by his representative in interest, except in
the following cases:-

An admission may be proved by or on behalf of the persons making it, when it is of
such a nature that, if the person making it were dead, it would be relevant as
between third persons under section 32.

An admission may be proved by or on behalf of a person making it, when it consists
of statement of the existence of any state of mind or body, relevant or in issue,
made at or about the time when such state of mind or body existed, as is
accompanied by conduct rendering its falsehood improbable.
An admission may be proved by or on behalf of the person making it, if it is
relevant otherwise than as an admission.

The Supreme Court in a case of Biswanath Prasad and others v. Dwarka Prasad &
Ors. reported in AIR 1974 SC 117, at para 8 ruled that:

There is no merit even in the contention that because these three statements Exs.
G, G2 and H- had not been put to the first plaintiff when he was in the witness box
or to the eighth defendant although he had discreetly kept away from giving
evidence, they cannot be used agasint him. counsel drew out attention to S.145 of
the Indian Evidence Act. There is a cardinal distinction between a party who is the
author of a prior statement and a witness who is examined and is sought to be
discredited by use of his prior statement. In the former case an admission by a party
is substantive evidence, if it fulfils the requirements of S.21 of the Evidence Act: in
the latter case a prior statement is used to discredit the credibility of the witness and
does not become substantive evidence. In the former, there is no necessary
requirement of the statement containing the admission having to be put to the party
because it is evidence proprio vigore: in the latter case the Court cannot be invited
to disbelieve a witness on the strength of prior contradictory statement unless it has
been put to him, as required by S.145 of the Evidence Act, this distinction has been
clearly brought out in the ruling in Bharat Singhs case (1966) 1 SCR 606; 615-
16=(AIR 1966 SC 405). This Court dispose of a similar argument with the
following observations:

Admissions are substantive evidence by themselves, in view of Sections 17
& 21 of the Indian Evidence Act, though they are not conclusive proof of the
matters admitted. We are of the opinion that the admissions duly proved are
admissible evidence irrespective of whether the party making them appeared in the
witness box or not and whether that party when appearing as witness was
confronted with those statements in case it made a statement contrary to those
admissions. The purpose of contradicting the witness under S.145 of the Evidence
Act is very much different from the purpose of proving the admission. Admission is
substantive evidence of the fact admitted while a previous statement used to
contradict a witness does not become substantive evidence and merely serves the
purpose of throwing doubt on the veracity of the witness. What weight is to be
attached to an admission made by a party is a matter different from its use as
admissible evidence.

74. In the light of above precedent, the present admission cannot be said to be
the admission for the purpose of making it substantial evidence. Proof is
establishment of fact by evidence or matters before the Court or legal Tribunal.
Such admission made before an officer seeking certain certificate does not
constitute evidence. Since the admission was not be made in any proceeding
having scope of cross-examination, the same cannot be relied upon by the
respondent in support of a case raising the issue as to whether the respondent has
duly divorced the petitioner.

75. The most important point which has also taken note by the leaned
Magistrate is the question of reconciliation between the parties. Learned Magistrate
has categorically observed in his finding that the mediation and reconciliation
meeting between the parties were also proved by the statement of one witness
namely Ghulam Rasool, who was examined as PW-3 on petitioners side but
surprisingly on going through the statement of PW-3 Ghulam Rasool, which has
been quoted in the impugned judgment itself, it is seen that there is even no whisper
as regards having such reconciliation. For the sake of convenience the statement
recorded in the judgment itself may be reproduced herein below:
PW-3 Ghulam Rasool; has deposed that the parties to the petition are husband and
wife. The petitioner had divorced by the respondent. He has heard about the divorce
but does not possess personal knowledge. In his presence, the dowry articles were
returned to the petitioner. At the time of handing over the dowry articles, he had
stood a witness to that document. He has identified his signatures. The dowry
articles were brought from Latti, the house of the respondent and the same were
delivered to the petitioner. He had acted on the mutual consent of the parties.

On cross-examination he has deposed that parties were not divorced in his
presence. Now the parties are living separately and the respondent has contracted
second marriage. There is a custom in our community that divorce may be
pronounced either orally or written and in the Court. The original list of property
produced by the respondent has been admitted by him as true but denied its
contents.

76. Be that as it may, having closely scrutinized the basic concept of divorce,
mandate of Holy Quran and commentaries of the jurists as legal authorities, it is
seen that the action taken and procedure adopted by the respondent to divorce his
wife, is not permissible under the law. No reasonable cause has been shown for
divorcing the petitioner and, such divorce was not preceded by nor has any attempt
on reconciliation ever been made between them by the two arbiters, as required
under the law.

77. In terms of the above discussion, this Court is of the view that all those basic
questions taken up for consideration have been appropriately answered and it can
unhesitatingly be held that :

the divorce was not properly effected;

ii. the divorce was not validly proved.

78. The basic concept of law on divorce in the modern trend of thinking is to put
restrictions on the caprice and whim of the husband to give talak to his wife at any
time without giving any reason whatsoever. It must be exclusively dealt with in
accordance with the Quranic injunction. If the relationship between the husband and
wife becomes strained, there should be two persons, one from each of the parties,
chosen as arbiters, who shall endeavour to cause reconciliation between the
husband and wife and, if the same is not possible, then the divorce or talak may be
effected. In other words, an attempt for reconciliation by the two relations, one
each of the parties is an essential condition precedent to divorce. {see also Jiauddin
Ahmeds case (supra) at para 4}.

79. Having regard to the Quranic mandate, commentaries of the eminent jurists
of Mohammedan law as well as the judicial authorities pronounced by the highest
and higher Courts, this Court held that divorce is allowed only for a reasonable
cause and, secondly, it must be preceded by an attempt to reconciliation between
the husband and the wife by two arbiters, one chosen by the wife from her family
and the other by the husband from his family. If such reconciliation fails only then
there can be a valid divorce.

(J) The concept of Reconciliation:

80. Blacks Law Dictionary (7th Edition) defines reconciliation as follows:
1. Restoration of harmony between persons or things that had been in conflict 2. Family law. Voluntary resumption after a separation of full
marital relations between spouses 3…………………….

81. The concept of reconciliation, the meaning of which has been noticed
hereinabove and as has been emanated from the basic source of Muslim law, as
discussed above, has got its acceptability in the modern litigations specially
pertaining to the matrimonial disputes. The reconciliation has become an effective
and important tool and mechanism for resolution of disputes particularly in
dissolution of marriages.

82. In Hindu Marriage Act, which is enacted in 1995 has already contained such
provisions of reconciliation in Section 23 (2) wherein a duty has been cast on the
Court to make an endeavour for reconciliation between the parties at the very initial
stage. Provision of Section 23(2) is quoted as follows:

23. (2) Before proceeding to grant any relief under this Act, it shall be the
duty of the Court in the first instance, in every case where it is possible so to do
consistently with the nature and circumstances of the case, to make every endeavour
to bring about a reconciliation between the parties;

83. Similarly, in The Family Courts Act, 1984, Section 9 provides that it is the
duty of the Family Court to make efforts for settlement and the same reads as under:

9. Duty of Family Court to make efforts for settlement._(1)
in every suit or proceeding, endeavour shall be made by the Family Court in the
first instance, where it is possible to do so consistent with the nature and
circumstances of the case, to assist and persuade the parties in arriving at a
settlement in respect of the subject-matter of the suit or proceeding and for this
purpose a Family Court may, subject to any Rules made by the High Court follow
such procedure as it may deem fit.

84. In 2002 by amendment of the Code of Civil Procedure, 1908, Section 89 has
been incorporated providing for settlement of the disputes, outside the Court by
adopting primarily four methods, namely, (a) arbitration; (b) conciliation; (c)
judicial settlement including settlement through Lok Adalat, or (d) mediation,
which are popularly coined as alternative dispute resolution(ADR) mechanism. So
it is evident that the process of reconciliation has to be given priority as well as
importance in the present days. In view of above, it is essential that a dissolution of
Muslim marriage by way of divorce or talaq must be based on reconciliation as
mandated by Quranic text followed by commentaries on the topic by the various
eminent legal personalities.

(K) Conclusion:

85. In consideration of what has been stated, observed and discussed, the
impugned judgment and order being not in consonance with law explained and
highlighted above, deserves interference and the same is, accordingly, set aside
and quashed.

86. It is, consequently, held that the petitioner is not a Muslim divorcee of the
husband/respondent and she is entitled to get her maintenance in terms of Section
488 Cr. P. C and this Court does, accordingly, uphold the maintenance granted to
the petitioner by the learned Magistrate by its initial order dated 24.6.1995.

87. It is further provided that order dated 10.12.2002 passed by this Court as
regards granting interim maintenance to respondent no. 2, daughter of the parties, is
hereby made absolute.

88. Liberty is also granted to petitioner no. 1 to approach the appropriate
Forum/Authority, if she desires further increase in her maintenance allowance, if so
advised.

89. In the result, the revision petition is, accordingly, allowed.

(L) Remarks:

90. Before parting with the judgment, it is necessary to put on record certain
observations.

91. The learned Judicial Officers while quoting cited judgments and judicial
authorities, shall extract the relevant paragraphs of the judgment referred to with
clear mention of the said paragraph/paragraphs therein instead of quoting the Head
notes of a particular judgment. In the instant case, on perusal of the impugned
judgment and order, it appears that the learned Magistrate has quoted the Head
Notes only of the judgment referred to or relied upon. Be it noted that Head Notes
are not the ratio or operative part of the judgment. It is simply an editorial comment
and, accordingly, attempt should be made to avoid quoting the Head Notes only.

Sd/-

(Dr. Aftab H. Saikia)
Chief Justice
Jammu:

14 .10.2010
Tilak, Secy.

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