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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.179 OF 2009
Mrs Sabah Adnan Sami Khan, .. Appellant
aged 34 yrs, Occupation-
Business, residing at No.1301, A
& C and Flat No.1401, A,B and
C Oberoi Sky Garden, 3rd X
Lane, Lokhandwala, Andheri,
Mumbai-400053.
ig Vs
Adnan Sami Khan, .. Respondent
aged 39 years, Occupation-
business, residing at No.1301, A
& C and Flat No.1401, A, B and
C Oberoi Sky Garden, 3rd X
Lane, Lokhandwala , Andheri,
Mumbai-400053.
Mr Mahesh Jethmalani, Senior Counsel, with Mrs Mrunalini
Deshmukh, Mrs Edith Dey, for the Appellant.
Mr Vaibhav Krishna a/w Mrs Mridula Kadam, Mr Aashish Sah,
Tejas Sha, Vishal Nahar, Laxmi Mardekan, Anvisubade i/b M/s
Juris Consillis, for the respondent.
CORAM : D.B.BHOSALE AND R.Y.GANOO,JJ.
DATE : 23/03/2010.
JUDGMENT : (Per D.B.BHOSALE,J.)
1. In this appeal under section 19 of the Family Courts Act,
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1984, the following questions are raised for our consideration:
(i) Whether a divorce between the appellant and the
respondent under the Divorce Agreement dated 18th
April, 2004 was a Talak in the `Ahsan mode’, as the
appellant-wife claims, or was it a divorce by `Khula’, as
claimed by the respondent-husband?
(ii)Whether, the appellant was obliged to undergo Halala
prior to her remarriage with the respondent on 5th April,
2007?
(iii)If the divorce under the Divorce Agreement dated 18th
April, 2004 is held to be a Talak by Khula, whether the
appellant-wife was obliged to undergo Halala before the
remarriage on 5.4.2007 ?
(iv)Whether the petition filed by the appellant-wife for
divorce and her Miscellaneous Application under the
provisions of the Protection of Women from Domestic
Violence Act, 2005 (for short, “the Domestic Violence Act”)
were tenable before the Family Court?
2. This appeal was admitted on 14.12.2009 and, on 1.2.2010,
liberty was granted to the appellant to submit private paper
book within a period of six weeks and to apply for fixed date of
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hearing of the appeal. The appellant, along with the appeal,
had filed a Civil Application, being Civil Application No.53 of
2010, for interim reliefs prayed for therein. This civil application
was placed on board on 10.3.2010 for hearing. On this date, we
heard learned counsel for the parties for some time and, in the
course of hearing, they jointly requested to take up the appeal
itself for final disposal.
3. Learned counsel for the parties addressed the court only
on the aforesaid questions, and all the questions being the
questions of law they fairly stated that evidence for addressing
the questions is not necessary and they would address the court
on the basis of admitted facts and the material placed before us
and that they would not seek remand of the matter for allowing
the parties to lead evidence. In view thereof, we have heard
learned counsel for the parties at considerable length.
4. The facts, which are relevant to dispose of this appeal, are
fairly simple. The appellant and the respondent are
Mahomedans and they belong to the Sunni Sect. The appellant
is a citizen of UAE and the respondent is a citizen of Pakistan.
They got married on 15.9.2001 according to Islamic rites. At the
time of their marriage, it was the appellant’s third marriage and
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the respondent’s second. Their marriage was dissolved under
the Divorce Agreement dated 18.4.2004 singed by them and the
witnesses. The parties remarried on 5.4.2007 at Jama Masjid,
Bandra, Mumbai, (for short, “the second marriage”). The
second marriage was registered with the Sub Registrar of
Marriages, Bandra, Mumbai on 2.2.2008. Sometime in June-
July,2008, disputes and differences arose between the appellant
and the respondent, which resulted in execution of the
Reconciliation Agreement dated 22.1.2009.
ig Thereafter, the
appellant on account of matrimonial discord, filed a complaint
in the Metropolitan Magistrate Court at Andheri, (Railway
Court), in February, 2009 under the provisions of the Domestic
Violence Act. On 24.2.2009, the respondent filed a reply to her
application under the Domestic Violence Act. On 16.3.2009, the
appellant filed a petition, being Petition No. A-673 of 2009,
under section 2(viii) of the Dissolution of Muslim Marriages Act
of 1939, seeking dissolution of the second marriage. Along
with the said petition, the appellant also filed Misc. Application
seeking reliefs under the Domestic Violence Act. The respondent
filed reply to the said application under the Domestic Violence
Act so also her Written Statement in which, for the first time, he
brought out an issue that the appellant did not perform Halala
formalities before the second marriage and hence it is nullity. It
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was also contended that the petition for divorce and the
application for interim reliefs are not tenable before the Family
Court.
5. The Family Court, after having considered the diverse
contentions urged by learned counsel for both sides, held that
the dissolution of marriage in the present case was by mutual
consent and it was a divorce by “Mubara’at” and not by Talak
“Ahsan”. It was further observed that Talak Ahsan is oral divorce
and since in the present case the divorce was executed under
the Agreement/Deed of Divorce dated 18.4.2004, the contention
of the appellant that it was a Talak Ahsan, must be rejected.
After making these observations in respect of the mode of Talak
and in view of the admitted position that the appellant had not
observed the Halala, it was further held that the second
marriage of the parties is not legal and valid and consequently
the petition filed by the wife for dissolution of her marriage
under section 7 of the Family Courts Act, being Petition
No.A-673 of 2009 is liable to be dismissed as not tenable. Thus,
the impugned order in the present appeal disposes off the
matrimonial petition instituted by the appellant by rendering it
unsustainable on the sole ground that the marriage of the
parties of which she seeks dissolution is void inasmuch as the
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appellant had not undergone the mandatory requirement of
Halala, after the dissolution of her first marriage with the
respondent on 18.4.2004, as recorded in the Deed of Divorce
executed on the very same day.
6. We have heard learned counsel for the parties at
considerable length and, with their assistance, perused the
principles of Mahomedan Law from the books of different
authors, to which our attention was invited by learned counsel
for the parties, so also the Judgments relied upon by the
learned counsel in support of their contentions.
Mr Jethmalani, learned senior counsel for the appellant, at
the outset, submitted that having regard to the Divorce
Agreement dated 18.4.2004 and subsequent conduct of the
parties, it is clear that the divorce agreement between the
appellant and the respondent was a Talak in the Ahsan mode. He
submitted that all forms of Talak, including the Talak in the
Ahsan mode, are revocable up to a certain period and thereafter
it becomes irrevocable. He then submitted that when Talak
becomes irrevocable, it is not that a fresh marriage can be
contracted between the parties only on the wife performing
Halala. According to Mr Jethmalani, performance of Halala is
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necessary only in case of triple Talak. In other words, he
submitted that it is not correct to assume that the concept of
irrevocability entails that a wife must perform Halala on any
form of Talak becoming irrevocable. After inviting our attention
to Verses (Sura) in the Holy Quran, he submitted that Halala is
mandatory on the part of wife only in case of a talak in Talak
Hasan mode and Talk-i-badai by three pronouncements and
expiry of Iddat. Khula and Mubaraat, he submitted, though
operate as Talak-i-bain, that is, irrevocable divorce, does not
mean that for re-marriage between them, the wife has to
undergo “Halala”. It only means that re-marriage between them
is valid only under a fresh Nikah and fresh Mehr. In support of
this contention, he also placed reliance upon Section 42 (Page
141 of Faiz B.Tyabji’s Mahomedan Law). He also relied upon
certain other sections of Faiz B Tyabji’s Mahomedan Law
including section 171 therein. Lastly, Mr. Jethmalani submitted
that even if Talak Ahasan became irrevocable, parties to a
divorce can re-marry without the wife performing Halala.
On the other hand, Mr Krishna, learned counsel for the
respondent, after inviting our attention to various
provisions/sections in the Mulla’s Principles of Mahomedan Law
and to the Divorce Agreement and more particularly the
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preamble and clause (3) thereof, submitted that the divorce
under the divorce agreement between the appellant and the
respondent was by Khula and it became irrevocable from the
moment the respondent repudiated the appellant as his wife.
He submitted that Khula operates as a single irrevocable
divorce, that is, talak-i-bain, the moment the wife’s offer to
compensate the husband for her release from marital rights is
accepted, and when it becomes irrevocable, remarriage between
the parties is unlawful unless Halala is observed by the wife. In
support, he invited our attention to the Divorce Agreement
dated 18.4.2004 and submitted that the divorce was obtained at
the instance of the appellant and effected by acceptance of an
offer from the appellant to compensate the respondent by giving
up her right over mehr and, therefore, it was a divorce by Khula.
He submitted that all the conditions of Khula stand satisfied, if a
close look at the divorce agreement dated 18.4.2004 is taken. In
other words, he submitted that the Divorce Agreement dated
18.4.2004 has been acted upon by both the parties for three
years and had become final and irrevocable and, therefore,
compliance of Halala formality was mandatory. The purpose of
challenge raised by the appellant in the proceeding is not to
continue marriage but to claim the property of the respondent.
The divorce agreement is at the initiative of the wife and is full
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and final and, therefore, Halala, in accordance with Shariat law
applicable.He submitted the marriage is permitted provided it
is in accordance with Shariat law, which provides compliance of
Halala formalities.
Mr Krishna further submitted that since Khula/Mubara’at
are Talak-i-bain, the rigors of irrevocable divorce by triple
pronouncements are applicable and Halala is mandatory. In
support of this contention, he invited our attention to Sections
311, 312, 313, 319, 320 and 336 in Mulla’s Principles of
Mohammaden Law and submitted that Khula divorce is effected
by offer from the wife to compensate the husband and once the
offer is accepted it operates as single irrevocable divorce (Talak-
i-bain) (sections 311(3), 312) and its operation is not postponed
until execution of the Deed of Khula. He submitted that section
311(3) is completely applicable to Talak-i-bain including section
311(3)(i) and if any formality is applicable to section 311(3)(i),
then it has to apply to section 311(3). He further submitted that
section 312(3) and Talak-i-badai mode becomes irrevocable
immediately it is pronounced irrespective of iddat as Talak
becomes irrevocable at once it is called Talak-i-bain. Mr Krishna
submitted that where talak has become irrevocable through any
mode between the parties, re-marriage between the parties is
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unlawful unless an intermediary marriage with another person
takes place with proved consummation. Lastly, he submitted
that the co-habitation of the appellant and the respondent as
husband and wife, after the so-called second marriage, would
not confer legitimacy to void marriage and would not create any
rights in favour of the appellant.
7. The Holy Quran is the primary source of Mohammedan
Law and represents the God’s Will communicated to the
Prophet through the Angel Gabriel. (See: Masroor Ahmed Vs
State (NCT of Delhi) and Anr, MANU/DE/9441/2007 and
the Full Bench Judgment of this Court in Dagdu Pathan Vs
Rahimbi Dagdu Pathan, 2003 (1) HLR 689). Section 34,
Chapter IV in Mulla’s Principles of Mahomedan Law by
Hidayatullah, Nineteenth Edition, (for short, “Mulla’s
Mahomedan Law”) deals with Interpretation of the Quran. It
states that the Courts, in administering Mahomedan law, should
not, as a rule, attempt to put their own construction on the
Quran in opposition to the express ruling of Mahomedan
commentators of great antiquity and high authority.
8. The Holy Quran recites on the issue of Halala, with which
we are concerned in the present appeal, as under :
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Sura 230 (i e. Verse 230).
“And if he hath divorced her (the third time), then
she is not lawful unto him thereafter until she hathwedded another husband. Then if he (the other
husband) divorces her, it is no sin for both of them
that they come together again if they consider that
they are able to observe the limits of Allah. These are
the limits of Allah. He manifesteth them for peoplewho have knowledge”.
What it means is that if the Talak was “the third time”,
such a Talak was pronounced, then they cannot re-marry unless
the wife were to have, in the intervening period, married
someone else and her marriage had been dissolved either
through divorce or death of that person and the iddat of divorce
or death has expired. This is considered as “Halala”.
9. Marriage, according to Muslim Law, is a civil contract, the
object of which is to legalize sexual intercourse and the
procreation of children. (See: Smt Joygun Nessa Bibi Vs
Muhammad Ali Biswas, AIR 1938 Calcutta 71). Divorce is
another name of dissolution of marriage under three distinct
modes in which a Muslim marriage can be dissolved and the
relationship of the husband and the wife terminated. The
existence of conjugal relations in the case of Mahomedans has to
be determined by reference to the provisions of the Mahomedan
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Law and not by considerations of equity and good conscience as
understood in any other system of law (See: Zohara Khatoon
Vs Mohd Ibrahim, AIR 1981 SC 1243).
10. In Mullas Mahomedan Law, section 311 provides, three
modes of Talak, with which we are concerned in the present
appeal, namely Talak Ahsan; Talak Hasan; and Talak-i-badai.
Talak “Ahsan” consists of a single pronouncement of divorce
(Talak) made during a tuhr, period between two menstrual
course, followed by abstinence from sexual intercourse for the
period of Iddat. (See. Section 311(1)).
Talak “Hasan” consists of three pronouncements made
during successive tuhrs without sexual intercourse during any
of the three tuhrs. The Talak becomes irrevocable on
pronouncement of divorce during all the three tuhrs. In other
words, before the third pronouncement, Talak Hasan is
revocable by conduct of the parties. However, once the third
pronouncement of divorce is made without sexual intercourse
during all the three tuhrs, the divorce becomes irrevocable and
in that case after Iddat, the former husband and wife cannot
enter into a Nikah unless the wife undergoes the process of
Halala. (See. S.311(2).
The third mode of Talak, namely, “Talak-i-badai” consists of
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two modes. Firstly, it consists of three pronouncements made
during a single tuhr. For instance, three pronouncements in one
go (Triple Talak) either in one sentence, e.g, “I divorce you
three times or in separate sentences, e.g., Talak, Talak, Talak.
(See : S. 311(3)(i)). The second mode of Talak-i-badai consists of
a single pronouncement made during a tuhr clearly indicating
an intention irrevocably to dissolve the marriage. For instance,
“I divorce you irrevocably”. (See: S.311(3)(ii)).
11.
A Talak in the “Ahsan” mode becomes irrevocable and
complete on the expiration of the period of iddat. (See: S.312(1)
in Mulla’s Mahomedan Law) Similarly, a Talak in the “Hasan”
mode becomes irrevocable and complete on the third
pronouncement, irrespective of the iddat, (See: S.312(2)) and a
Talak in the “badai” mode becomes irrevocable immediately it is
pronounced, irrespective of the iddat. As the Talak becomes
irrevocable at once, it is called talak-i-bain, that is, irrevocable
Talak (See: S.312(3)). Thus, in case of a Talak in the Ahsan
mode and in the “Hasan” mode do not become absolute until a
certain period has elapsed. In case of these two modes of Talak
the husband has an opportunity of reconsidering his decision
and he has the option to revoke it before the certain period is
elapsed. The essential feature of a talak-ul-bidaat or talak-i-
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badai is its irrevocability. One of tests of irrevocability is the
repetition three times of the formula of divorce within one tuhr.
But the triple repetition is not a necessary condition of talak-ul-
bidaat, and the intention to render a talak-irrevocable may be
expressed even by a single declaration. Thus if a man says : “I
have divorced you by a talaka-ul-bain (irrevocable divorce)”, the
talak is talak-ul-bidaat or talak-i-badai and it will take effect
immediately it is pronounced, though it may be pronounced but
once. Here the use of the expression “bain” (irrevocable)
manifests of itself the intention to effect an irrevocable divorce.
12. “Iddat” has been described in Mulla’s Mahomedan Law,
as the period during which it is incumbent upon a woman,
whose marriage has been dissolved by divorce or death to
remain in seclusion, and to abstain from marrying another
husband. The abstinence is imposed to ascertain whether she is
pregnant by the husband, so as to avoid confusion of the
parentage. When the marriage is dissolved by divorce, the
duration of the iddat, if woman is subject to menstruation, is
three course; if she is not so subject, it is three Lunar months.
If the woman is pregnant at the time, the period terminates
upon delivery. When the marriage is dissolved by death, the
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duration of the iddat is four months and ten days. If the woman
is pregnant at the time, the iddat lasts for four months and ten
days or until delivery, whichever period is longer (See: Section
257, Chapter XIV in Mulla’s Mahomedan Law). The period of
iddat prescribed by Muslim Law is 90 days.
13. As the Talak becomes irrevocable at once, it is called
Talak-i-bain, that is, irrevocable Talak. (See: S.312, Mulla’s
Mahomedan Law). Thus it is clear that a Talak can be revoked
by conduct before it becomes irrevocable. The Talak is,
however, complete on the expiration of the period of iddat. Until
the talak becomes irrevocable, the husband has the option to
revoke it which may be done either expressly, or implied as by
resuming sexual intercourse. Every mode of Talak, when is
complete, it becomes irrevocable. The question that we have to
consider is whether in case of every irrevocable talak,
irrespective of its mode, for remarriage with the same husband
the wife requires to observe the “Halala”.
14. The Delhi High Court in Masroor Ahmed’s case, after
considering different forms of Talak, so also the provisions of
Sections 311 and 312 in Mulla’s Mohamedan Law, in
paragraphs 26 and 27 of the judgment held thus:
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“26. … …. … There are views even amongst the
sunni schools that the triple talaq pronounced in one
go would not be regarded as three talaqs but only asone. Judicial notice can be taken of the fact that the
harsh abruptness of triple talaq has brought about
extreme misery to the divorced women and even to
the men who are left with no chance to undo the
wrong or any scope to bring about a reconciliation.
It is an innovation which may have served a purpose
at a particular point of time in history but, if it is
rooted out such a move would not be contrary to any
basic tenet of Islam or the Quran or any ruling of theProphet Muhammad.
27. In this background, I would hold that a triple
talaq (talaq-e-bidaat), even for sunni muslims be
regarded as one revocable talaq. This would enable
the husband to have time to think and to have ampleopportunity to revoke the same during the iddat
period. All this while, family members of the spouses
could make sincere efforts at bringing about a
reconciliation. Moreover, even if the iddat period
expires and the talaq can no longer be revoked as aconsequence of it, the estranged couple still has an
opportunity to re-enter matrimony by contracting afresh nikah on fresh terms of mahr etc.”
15. The Full Bench in Dagdu Versus Rahimbi Dagdu
Pathan (supra) had an occasion to consider the provisions in
Chapter II and III of Part-I of a Compendium of Islamic Laws
published by the All India Muslim Personal Law Board, dealing
with the conditions of effectiveness of Talak so also Chapter XVI
in Mulla’s Mahomedan Law dealing with the subject Divorce.
The Full Bench, after considering section 310, Chapter XVI in
Mulla’s Mahomedan Law in respect of Talak in writing, made the
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following observations:
“Talak in writing is a written mode of Talak reduced
in a Talaknama which may only be the record of thefact of an oral Talak or it may be the deed by which
the divorce is effected. The deed may be effected in
the presence of a Qazi or the wife’s father or of two
witnesses. In the absence of words showing a
different intention, a divorce in writing operates asan irrevocable divorce (Talak-i-bain) and takes effect
immediately on its execution. Talak by a delegation
is permissible and it is called as a Talak by Tafweez.
Written Talaq may have several forms and
some of them are (a) Kitabat-e-mustabinath (legible
writing). It is of two kinds – Mustabinah Marsumah(formal legible writing and Mustabinah Ghair
Marsumah (informal legible writing) Kitabat-e-
mustabinath Marsumah which is a formal divorce-
deed or letter which is written with a title and the
addressee’s name.”
16. A Talak may be effected orally (by spoken words) or by a
written document called a Talaknama. A Talaknama may only be
the record of the fact of an oral Talak; or it may be the deed by
which the divorce is effected. Section 313 in Mulla’s
Mahomedan Law provides that in the absence of words showing
a different intention, a divorce in writing operates as an
irrevocable divorce that is, talak-i-bain, and takes effect
immediately on its execution. Deed of Divorce in writing
constitutes a valid divorce (Rasul Bakhst Vs Bholon and others,
AIR 1932 (Lah.498). Under Hanafi Law, divorce of wife by a
written document is irrevocable (Hayat Khatun Vs Abdullah
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Khan, AIR 1937 Lah.270). As most Sunni’s are Hanafis the
presumption is that a Sunni is governed by Hanafi Law. It is
thus clear Talaknama may be only the record of the fact of an
oral Talak or it may be the deed by which the divorce is effected.
(See: S.310(2)).
17. At this stage, it is also necessary to refer to the rules of
revocable and irrevocable Talak and they are in sections
17,18,19 and 20 in Chapter III of Part-I of a Compendium of
Islamic Laws, published by the All India Muslim Personal Law
Board, dealing with the conditions of effectiveness of Talak,
(See: Dagdu Vs Rahimbi Dagdu Pathan) which read thus :
“Section 17 :
In a revocable Talaq the husband can take back the
wife during “Iddat” without her consent and without
a remarriage; but after the expiry of “Iddat” she willbecome irrevocable divorced and can be lawfully
taken back only by a fresh marriage.
Section 18 :
Revocable may be either by conduct – e.g., if the
husband had had coitus, kissing and caresses with
the wife – or by spoken words, e.g. If the husband
says that he has taken back his wife and informs her
of the same. Revocation by words is preferable in
the presence of witnesses (two men or a man and
two women).
Section 19:
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An irrevocable Talaq, whether express or implied,
(words of complication are explained hereinafter) is
of two kinds; bainunat-e-khafifah (minor separation)
and bainunat-e-ghalizah (major separation). Lessthan three Talaqs effect bainunat-e-khafifah,
otherwise there will be bainunat-e-ghalizah.
Section 20 :
In bainunat-e-khafifah though the wife goes out of
the marital bond but the parties may by mutual
consent remarry during or after the “Iddat”. In
bainunat-e-ghalizah remarriage is possible onlywhere after the expiry of “Iddat” the woman has
married another man who has either died or
divorced her and the “Iddat” of death or divorce hasexpired.”
From perusal of these sections, it is clear that once Talak
becomes irrevocable, the wife can be lawfully taken back only by
a fresh marriage. Revocation during iddat may be either by
conduct or by spoken words. An irrevocable Talak is of two
kinds: Bainunat-e-khafifah (minor separation); and Bainunat-e-
ghalizah (major separation). Less then three Talaks effect minor
separation, otherwise there will be major separation. If it is
minor separation (Bainunat-e-khafifah) the parties may by
mutual consent remarry during or after the iddat. However, in
case of major separation (Bainunat-e-ghalizah) they cannot
remarry unless Halal formality is complied with by the wife.
18. Thus, in our opinion, where Talak becomes irrevocable
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through any mode between the parties, for re-marriage between
them, it is not necessary that the Halala must be observed. In
other words, merely because a talak has become irrevocable,
does not mean that in case of every irrevocable Talak,
irrespective of its mode, for re-marriage between the same
couple, it is necessary that the Halala formality must be
complied with by the wife.
19. Where the husband has repudiated his wife by three
pronouncements (Triple Talak), as provided for in the Hasan
mode of Talak (See: S.311(2)) and in Talak-i-badai by three
pronouncements (See: S.311(3)(i)), it is not lawful for him to
marry her again until she remarries another man and the later
divorced her or he dies after actual consummation of the
marriage. In other words, in case of a Talak in the Hasan mode
and a Talak in Talak-i-badai by the three pronouncements
mode, remarriage is possible only if Halala is observed by the
wife. A Talak in the Ahsan mode and a Talak in the Talak-i-badai
by a single pronouncement mode, Halala need not be observed.
Where the husband has repudiated his wife by three
pronouncements, even if re-marriage between them is proved,
the marriage is not valid unless it is established that the bar to
remarriage by observing Halala was removed. The mere fact
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that the parties have remarried does not raise any presumption
as to the fulfillment of Halala formality. (See: Akhtaroon-nissa
Vs Shariutoollah Chowdhry, (1867) 7 WR 268).
20. That takes us to consider “Khula”. In Moonshee Buzu –
Ul-Rahem Vs Luttee Fatoonisa (1961) 8 MIA 399, Khula is
defined as “a divorce by khula is a divorce with the consent, and
at the instance of the wife, in which she gives or agrees to give a
consideration to the husband for her release from the marriage
tie. It signifies an arrangement entered into for the purpose of
dissolving a connubial connection in lieu of compensation paid
by the wife to her husband out of her property.
21. Section 319, Chapter XVI in Mulla Mahomedan Law deals
with “Khula and Mubara’at”. In this section, it is stated that a
marriage may be dissolved not only by talak, which is the
arbitrary act of the husband, but also by agreement between the
husband and wife. A dissolution of marriage by agreement may
take the form of Khula or Mubara’at. A divorce by Khula is a
divorce with the consent, and at the instance of the wife, in
which she gives or agrees to give a consideration to the husband
for her release from the marriage tie. In such a case, the terms
of the bargain are matters of arrangement between the husband
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and wife, and the wife may, as the consideration, release her
dower and other rights, or make any other agreement for the
benefit of the husband. A Khula divorce is effected by an offer
from the wife to compensate the husband if he releases her from
her marital rights, and acceptance by the husband of the offer.
Once the offer is accepted, it operates as a single irrevocable
divorce (talak-i-bain, that is, Irrevocable divorce) (Ss.311(3),
312), and its operation is not postponed until execution of the
Khulanama (Deed of Khula).
22. Mubara’at means mutual release. A Mubara’at divorce
like Khula, is a dissolution of marriage by agreement, but there
is a difference between the origin of the two. When the aversion
is on the side of the wife, and she desires a separation, the
transaction is called Khula. When the aversion is mutual, and
both the sides desire a separation, the transaction is called
Mubara’at. The offer in a Mubara’at divorce may proceed from
the wife, or it may proceed from the husband, but once it is
accepted, the dissolution is complete, and it operates as a Talak-
i-bain as in the case of Khula. As a talak, so in khula and
mubara’at, the wife is bound to observe the iddat.
23. Khula is a form of divorce recognised by the Muslim Law.
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It is virtually a right of divorce purchased by the wife from her
husband. It is complete from the moment when the husband
repudiates the wife. There is no period during which such a
divorce can be revoked at the instance of the husband. Thus, a
divorce by Khula is complete if the following conditions are
satisfied : (i) if it is at the instance of the wife or there must be
an offer from the wife; (ii) she gives or agrees to give a
consideration to the husband for her release; and (iii)
acceptance by the husband of the offer. Over and above this,
under Sunni law, the husband must be adult and of sound mind.
A proposal by Khula made by the wife may be retracted by her
at any time before the acceptance by the husband and the
proposal stands revoked if the wife rises from the meeting
where the proposal is made. Abu Hanifa has provided three
days of options for wife to accept or revoke Khula but does not
allow this option to husband but his disciples are of the opinion
that the option is for the both sides. (See: Principles of Muslim
Law by Yawer Qazalbash, page 135) Under Hanafi law, no form
is necessary but only intention must be proved besides the
proposal, acceptance and consideration. In case of a divorce by
Mubara’at, offer may be either from the side of wife or from the
side of husband. When an offer for mubara’at is accepted it
becomes irrevocable divorce. (Talak-Ul-bain). No particular form
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is required under Sunni law but mutual agreement must be
made at the same time and the word Mubara’at must be clearly
expressed in the proposal and if ambiguous expressions are
used intention must be proved. Under Sunni law, when the
parties enter into a mubara’at all mutual rights or obligations
came to an end. Thus, Khula is redemption of the contract of
marriage while Mubara’at is a mutual release from the marriage
tie. In Khula the offer is made by the wife and its acceptance is
made by the husband, whereas in Mubara’at any of the two may
make an offer and other accepts it. In Khula, a consideration
passes from wife to husband, whereas in Mubara’at the question
of consideration does not arise.
24. In Asaf A.A.Fyzee, Outlines of Muhammadan Law,
Fifth Edition in Chapter IV dealing with divorce by consent
after defining Khula and Mubara’at so also after narrating the
distinguishing factors between the two, the learned author has
concluded the discussion stating that “Khula and Mubara’at
operates as a single irrevocable divorce. Therefore, marital life
cannot be resumed by mere reconciliation; a formal remarriage
is necessary. In either case iddat is incumbent on the wife and,
in the absence of agreement to the contrary, the wife and her
children do not lose the rights of maintenance during the
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25
period”. The learned author has not made any reference to
Halala formality in case of remarriage of the couple. In either
case, iddat only is incumbent on the wife.
25. In Mohammadan Law by Faiz and Tyabji, Third
Edition, 1940, in section 41 it is stated that “after the husband
has pronounced three Talaqs against his wife, their marriage is
irrevocably dissolved, marital co-habitation by them becomes
illegal, and they are prohibited from re-marrying each other
unless and until the woman has been lawfully married to a
second husband, her marriage with her second husband is
actually consummated, and it has, after such consummation,
been lawfully dissolved”. In section 42 the learned author has
observed that “the rule in section 41 did away with great engine
of oppression in the hands of the pre Islamic Arabs, who could
keep their wives in a species of perpetual bondage, pretending
to take them back after repeated divorcees, merely for the
purpose of preventing the wives from re-marrying and from
seeking the then much needed protection of a husband.” In
section 42, under Shafi’i law (Sunni) a khul or mubarat does not
count as a pronouncement of divorce, for prohibition under
section 41, viz. Halala would not apply to the divorce by “Khula”
or “Mubara’at”.
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26. Thus, a Khula divorce is effected by an offer from the wife
to compensate the husband if he releases her from her marital
rights, and acceptance by the husband of the offer. Once the
offer is accepted, it operates as a single irrevocable divorce
(Talak-i-bain, that is, irrevocable divorce), and its operation is
not postponed until execution of Khulanama. In our opinion,
merely because Khula becomes irrevocable (talak-i-bain) on
complying with all the three conditions, (that is, i. it should be
at the instance of the wife or there must be an offer from the
wife; ii. the wife gives or agrees to give a consideration to the
husband for her release; and iii. acceptance by husband of the
offer) does not mean that the rigors of irrevocable divorce by
Triple pronouncements are applicable and Halala is mandatory.
There is a clear distinction between “Triple Talak” and “talak
by single pronouncement” and, therefore, the Talak by single
pronouncement cannot be treated as a talak by triple
pronouncement, only because at some stage it becomes
irrevocable (talak-i-bain). If a talak is the talak by single
pronouncement, in our opinion, Halala need not be observed.
27. In the present case, the arguments advanced by learned
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counsel for the parties centered around the divorce agreement
dated 18.4.2004. The learned senior counsel for the appellant,
after taking us through the agreement, endeavoured to interpret
the preamble and the clauses in the agreement to contend that
it was a Talak by the Talak Ahsan mode, whereas the learned
counsel for the respondent submitted that it was a divorce by
Khula. It would be relevant to reproduce the divorce agreement
for better appreciation of the submissions advanced by the
learned counsel for the parties so also to address the questions
raised in the appeal. The agreement reads thus :
“Issued in Mumbai – India on 18/4/2004 between :
1. Mr Adnan Sam Khan, Pakistani National, Muslim, Resides
in Pakistan, holder of passport number J033468 issued in
Pakistan with the attached Passport no.LA097889 issued
in Dubai.
(First Party – Husband)
2. Mrs Sabah Abdul Rahim Galadari, UAE, National Muslim,
resides in Dubai holder of Passport No.A0850802 issued in
Dubaii.
(Second Party -Wife)
Preamble:
Whereas, the First Party is the husband of the
second party pursuant to the marriage contract dated
15/9/2001, signed by the First Party personally and Mr
Abdul Latif Ibrahim Galadari as an attorney of the Second
Party by the witness of Samir Mohamed Abdul Khaliq
Gargash and Ali Haider Khan.
Whereas, both parties acknowledged that the
marriage relation exist and that they became as a man and
wife with no children.
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Whereas, according to the request of the Second
Party for divorce, both parties agreed to terminate the
marriage relation and they have agreed with their full
eligibility as follows:
First: The above preamble is an integral part of this
agreement and shall read and interpret with it.
Second: By this agreement and as soon as signing it
by both parties, the Second Party shall be considered as a
divorcee from the First Party since the First Party uttered
in the meeting in front of the two witnesses “My wife
Sabah Abdul Rahim Galadari is divorced”
Third: Both parties agreed that the Second Party is
not permitted to return back to the First Party except
against a new marriage contract and new dowry.
Fourth: The Second Party (Wife) understood that her
divorce from the First Party (Husband) commence from
uttering the words mentioned in above article two of this
agreement dated 18.4.2004 and she should calculate her
Shariat Iddat as a divorcee from that date and she can
remarry after the expiration of Iddat.
Fifty: The First Party undertakes to hand over the
Second Party of all belonging related to the Second Party.
The Second Party undertakes to handover all First Party’s
belonging.
Sixth: Both Parties fully and finally and absolutely
discharge each other of any financial right claim due to
the marriage relation.
Seventh: This agreement issued in two identical
copies, one copy with each party signed by the parties and
the two witnesses.”
28. The agreement was admittedly signed by the parties and
the witnesses. There is no dispute that after the divorce and
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before the second marriage, the Halala formalities were not
complied with. It is against this backdrop, we would now like to
consider what was the mode of Talak by which the parties
separated under the Divorce Agreement dated 18.4.2004.
29. It is true that in the preamble of the agreement, it is
clearly mentioned that “according to the request of the
appellant”, both the parties agreed to terminate the marriage
relation. The second clause of the agreement, however, shows
that even before execution of the agreement the respondent had
uttered (by spoken words) in the meeting in front of the two
witnesses “My wife Sabah Abdul Rahim Galadari is divorced”.
The second clause clearly shows that the respondent had
divorced the appellant by single oral pronouncement, which was
simply recorded in writing and, therefore, it cannot be stated
that the divorce was effected by the deed, that is, the Divorce
Agreement dated 18.4.2004. The fourth clause shows that the
appellant understood that her divorce from the respondent
commenced from uttering the words mentioned in the second
clause and she should calculate her Shariat Iddat as a divorcee
from that date and that she can re-marry after the expiration of
Iddat. The third clause states that they had agreed that the
appellant was not permitted to return back to the first party
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except against a new marriage contract and new dowry. It does
not even indirectly suggest that the wife should observe Halala.
Thus, the 2nd, 3rd and 4th clauses do not even indirectly
suggest that for re-marriage they were expected to comply with
the Halala formalities and that their divorce was by triple (the
third time) pronouncement. By no stretch of imagination it could
be said that the respondent repudiated the appellant by three
pronouncements, which is required in the case of Talak Hasan
and Talak-i-badai. (See: S.311(2)(3)(i) and S.336(5), Chapter XVI
in Mulla’s Mahomedan Law).
The fifth clause of the agreement states that the husband
had agreed to hand over to the appellant all belongings, and in
the sixth clause they fully and finally and absolutely discharged
each other of any financial right/claim due to the marriage
relation.
The sixth clause, according to the learned counsel for the
respondent, amounts to relinquishment of right as is required in
Khula. In case of Khula, the wife requires to give or agrees to
give a consideration to the husband for her release from the
marriage tie. A bare perusal of the sixth clause shows, as is
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usually seen in all contracts, parties had given up their claims
against each other. In this clause, if the appellant alone had
discharged the respondent of her financial right/claim, perhaps,
there was scope to contend that she had agreed to give
consideration to the respondent for her release from the
marriage tie. However, that is not the case here and it is not
possible to say so. Thus, we find that it was a divorce by single
pronouncement; the parties had agreed to come together only
against new marriage contract without putting any restriction of
Halala; and that the appellant had not agreed to give any
consideration to the respondent for her release from the
marriage tie. In the circumstances, it is not possible to hold that
it was a divorce by Khula, as tried to be urged by the learned
counsel for the respondent, and we are satisfied that it was a
divorce by Talak Ahasan.
30. Talak Ahsan consists of a single pronouncement of divorce
(Talak) made during a tuhr. It becomes irrevocable and complete
on expiration of the period of Iddat. Merely because it becomes
irrevocable does not necessarily mean that the parties should
observe the rule of Halala. The rule of Halala requires to be
complied with only where the husband has repudiated his wife
by three pronouncements as is necessary in triple Talak, such
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as in Talak Hasan or Talak-i-badai consisting of three
pronouncements. Talak Ahasan consists of single
pronouncement of divorce made during a tuhr followed by
abstinence from intercourse for the period of Iddat. Once the
period of Iddat expires it becomes irrevocable and in that case
parties can re-marry even without following the rule of Halala.
Even if it is assumed that it was a divorce by Khula, it is clear
that it was by single pronouncement and cannot be treated as a
Talak by three pronouncements – (Triple Talak) and, therefore,
even in case of Khula, in our opinion, Halala need not be
observed.
31. We are unable to accept the submission of learned counsel
for the respondent that since Khula is Talak-i-bain, the rigors of
irrevocable divorce by triple pronouncements is applicable and
Halala is mandatory. This submission proceeds on the
assumption that the moment Talak becomes irrevocable (Talak-
i-bain), Halala is mandatory. After considering the relevant
provisions/sections in Mulla’s Mahomedan Law, in Chapter III of
Part-I of the Compendium of Islamic Laws published by the All
India Muslim Personal Law Board and the Commentaries in Asaf
A.A. Fyzee and by Faiz and Tyabji, so also the Judgments of the
Delhi High Court in Mansroor Ahmed’s case and of this High
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Court in Dagdu Pathan’s case, we have observed that merely
because Talak in the Ahsan mode or Khula become irrevocable
does not necessarily mean that the rigors of irrevocable Talak by
triple pronouncement are applicable and Halala is mandatory.
Irrevocable talak in the sense that the former husband and wife
cannot resume a legitimate marital relationship unless they
contract a fresh Nikah with a fresh Mehr. As observed earlier,
there is a clear distinction between the Talak by single
pronouncement and the Talak by triple pronouncement. It is only
in case of a triple Talak, re-marriage with the same husband is
legal and valid if Halala is observed. In case of a talak in the
Ahsan mode, Halala is not mandatory. Thus, even if it is
accepted that the Talak under the divorce agreement between
the appellant and the respondent was Talak-i-bain, it cannot be
stated that Halala was mandatory.
32. In the result, we hold that the divorce between the
appellant and the respondent under the Divorce Agreement
dated 18.4.2004 was a Talak in the Ahasan mode and, therefore,
the appellant was not obliged to undergo Halala prior to the
second marriage. In our opinion, even in case of a divorce by
Khula, the wife is not obliged to undergo Halala before
contracting remarriage with the same husband. Under the
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circumstances, the petition filed by the wife and her
Misc.Application under the provisions of the Domestic Violence
Act before the Family Court are tenable. The judgment and
order dated 14.10.2009, impugned in the present appeal, is set
aside and the petition and the Misc. Application stand restored
to file. The Family Court shall endeavour to dispose of the
petition expeditiously.
Insofar as the application under the provisions of the
Domestic Violence Act is concerned, liberty to the appellant to
move the Family Court for interim order. The Family Court shall
dispose of the Misc Application as expeditiously as possible and
preferably within a period of 12 weeks from the date of receipt
of this order.
We make it clear that we have not expressed any opinion
on merits of the case and the Family Court shall decide the
petition as well as the other proceedings between the parties
uninfluenced by any opinion expressed on facts and/or merits of
the case. No order as to costs.
At this stage, learned counsel for the respondent, prays for
direction to the Family Court not to proceed with the trial for a
period of six weeks. Mr Jethmalani, learned Senior Counsel for
the appellant, has no objection for issuing such direction. Hence,
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we pass the following order. The Family Court shall not proceed
with the trial or hearing of the application under the Domestic
Violence Act for a period of six weeks from today.
(R.Y.GANOO, J.) (D.B.BHOSALE,J.)
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