{"id":75344,"date":"2007-11-28T00:00:00","date_gmt":"2007-11-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ajmalkhan-vs-doulath-begam-on-28-november-2007"},"modified":"2018-12-22T14:25:00","modified_gmt":"2018-12-22T08:55:00","slug":"ajmalkhan-vs-doulath-begam-on-28-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ajmalkhan-vs-doulath-begam-on-28-november-2007","title":{"rendered":"Ajmalkhan vs Doulath Begam on 28 November, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Ajmalkhan vs Doulath Begam on 28 November, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 28\/11\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\n\nS.A.(MD)No.1040 of 2007\nand\nM.P.No.2 of 2007\n\n\nAjmalkhan\t\t...\t\tAppellant\n\n\nVs.\n\n\nDoulath Begam \t\t...\t\tRespondent<\/pre>\n
PRAYER IN S.A.890\/1995<\/p>\n
Second Appeal filed under Section 100 of the Code of
\nCivil Procedure, against the judgment and decree dated 22.12.2005 made in
\nA.S.No.58 of 2005 on the file of Sub Judge, Uthamapalayam, confirming the
\njudgment and decree dated 08.04.2005 passed in O.S.No232\/04 on the file of the
\nDistrict Munsif, Uthamapalayam.\n<\/p>\n
!For Appellant\t\t…\t\tMr.R.Surianarayanan<\/p>\n
^For Respondent\t\t…\t\tMrs.Mahalakshmi<\/p>\n
:COMMON JUDGMENT<\/p>\n
\t\tHeard the submissions made by Mr.R.Surianarayanan, learned counsel
\nfor the appellant and Mrs.Mahalakshmi, learned counsel appearing for the
\nrespondent and perused the  available records produced in the form of typed set
\nof papers  including copies of the judgments of the Courts below.\n<\/p>\n
\t\t2.The plaintiff who proved to be unsuccessful before the Courts
\nbelow has brought forth this Second Appeal.  Admittedly, both parties are
\nMuslims by religion and the appellant herein\/plaintiff had married the
\nrespondent herein\/defendant. Claiming to have divorced the respondent\/defendant
\nby pronouncement of triple ‘talaq’ on 21.08.2000,  the appellant\/plaintiff had
\nfiled the above said suit for a declaration that the respondent\/defendant had
\nlost her status as the wife of the appellant\/plaintiff and for a consequential
\ninjunction not to claim such a status.  The suit was resisted by the
\nrespondent\/defendant denying the allegation that there was a valid pronouncement
\nof ‘talaq’ and valid communication of such a pronouncement of ‘talaq’.\n<\/p>\n
\t3. Both the Courts below, on an appreciation of  facts, came to the
\nconclusion that though the plaintiff was somewhat successful in substantiating
\nhis contention that he pronounced ‘talaq’ in the absence of the
\nrespondent\/defendant and the pronouncement of ‘talaq’ was communicated to the
\nrespondent\/defendant under Ex.A1.  However, the Courts below have declined the
\nrelief of declaration and injunction holding that the pronouncement of ‘talaq’
\nwas not valid as it was not preceded by an attempt of reconciliation involving
\ntwo arbiters – one from the family of the appellant\/plaintiff (husband) and the
\nother from the father’s family of the respondent\/defendant (wife).  The Courts
\nbelow relied on the judgment of the Honourable Supreme Court pronounced in
\nShamim Ara v.State of Uttar Pradesh & another reported in (2003-1-L.W 363),
\nwherein their Lordships of the Supreme Court approved the view expressed by a
\nDivision Bench of Gauhati High Court in Rukia Khatun’s Vs. Abdul Khalique
\nLaskar,  reported in (1981 1 GLR 375).  The Division Bench of  Gauhati High
\nCourt in Rukia Khatun’s case prescribed two conditions for a valid ‘talaq’ they
\nare:-\n<\/p>\n
“(i) Talaq must be for a reasonable cause;\n<\/p>\n
               AND<\/p>\n
(ii) It must be preceded by an attempt of reconciliation between the husband and
\nwife by two arbiters, one chosen by the wife from her family and the other by
\nthe husband from his family and if such attempts fails, ‘talaq’ may be
\neffected.”\n<\/p>\n
\t4.The said view has got the approval of the Supreme Court in Shamim Ara
\nVs. State of U.P & another reported in (2003-1-L.W 363) in clear and unambiguous
\nterms.  Their Lordships of the Supreme Court made the following observation
\nreferring to the view expressed by the Division Bench of the Gauhati High Court:\n<\/p>\n
\t“We are in respectful agreement with the above said observation made by
\nthe learned judges of the High Court”.\n<\/p>\n
\t5. Relying on the above said view expressed by the highest forum of this
\nland, both the Courts below have held that the appellant\/plaintiff had not
\nproved that there was an attempt of reconciliation between the husband and wife
\nby two arbiters chosen as aforesaid,   preceding the alleged pronouncement of
\n‘talaq’. Hence the Courts below have come to the conclusion that the alleged
\npronouncement of ‘talaq’ was ineffective and invalid. The learned counsel for
\nthe appellant contended that the said observations made by in Shamim Ara’s case
\nwas only obiter dicta and hence, the same could not be taken as a binding
\nprecedent.  In support of  the said contention the learned counsel for the
\nappellant relied on the judgment of the Supreme Court in The Divisional
\nController, KSRTC Vs.Mahadeva Shetty and another reported in (2004 2 L.W 60) and
\na judgment of the Division Bench of the Madras High Court in The Secretary,
\nSaliar Mahajana Higher Secondary Schools Vs.G.Subburaj & others reported in
\n(2005 1 L.W 48).  In (2004 2.L.W 60) cited supra, the following were the
\nobservation made by the Honourable Supreme Court \t<\/p>\n
\t\t“while applying the decision to a later case, the court dealing with
\nit should carefully try to ascertain the principle laid down by the previous
\ndecision.  A decision often takes its colour from the question involved in the
\ncase in which it is rendered. The scope and authority of a precedent should
\nnever be expanded unnecessarily beyond the needs of a given situation.  The only
\nthing binding as an authority upon a subsequent Judge is the principle upon
\nwhich the case was decided.  Statements which are not part of the ratio
\ndecidendi are distinguished as obiter dicta and are not authoritative.  The task
\nof finding the principle is fraught with difficulty as without an investigation
\ninto the facts, it cannot be assumed whether a similar direction must or ought
\nto be made as a measure of social justice.  Precedents sub silentio and without
\nargument are of no moment.  Mere casual expressions carry no weight at all, nor
\nevery passing expression of a Judge, however eminent, can be treated as an ex
\ncathedra statement having the weight of authority.”\n<\/p>\n
\t\t6.The Division Bench of the Madras High Court in  The Secretary,
\nSaliar Mahajana Higher Secondary Schools Vs.G.Subburaj & others reported in
\n(2005 1 L.W 48) has made the following observation:-\n<\/p>\n
\t“It may be mentioned that every direction of the Supreme Court is not a
\nprecedent.  It is only where the Supreme Court lays down a principle of law that
\nit will amount to a precedent.  Often, the Supreme Court issues directions
\nwithout laying down any principle of law, in which case it is not a precedent.
\nFor instance, the Supreme Court often directs appointment of someone or
\nregularization of a temporary employee or payment of salary etc., without laying
\ndown any principle of law.  This is often done on humanitarian considerations,
\nbut this will not operate as a precedent binding on the High Court.  For
\ninstance if the Supreme Court directs regularization of service of an employee
\nwho had put in 5 years service this does not mean that all employees who had put
\nin 5 years service must be regularized.  Hence such a direction is not a
\nprecedent”.\n<\/p>\n
\t\t7.There can be no second opinion that both the judgment relied on by
\nthe learned counsel for the appellant state the correct preposition of law
\nregarding binding precedent. But this Court is not in a position to accept the
\ncontention of the learned counsel for the appellant that the view expressed by
\nthe Honourable Supreme Court in Shamim Ara Vs. State of U.P & another reported
\nin (2003-1-L.W 363) regarding the conditions for  pronouncing a valid ‘talaq’
\ncan at no stretch of imagination be considered as obiter dicta.  It clearly laid
\ndown the law on this point that for ‘talaq’ to be valid fulfillment of those two
\nconditions should be established.  The learned counsel for the appellant made a
\nfeeble attempt to contend that the issue involved in the said case decided by
\nthe Honourable Supreme Court was not one regarding the validity of ‘talaq’ but
\nwas one regarding the effectiveness of the communication of ‘talaq’ allegedly
\npronounced earlier; that the case could have been disposed of without even
\nconsidering the above said conditions necessary for pronouncement of  valid
\n‘talaq’ and that hence the said observation made by the Honourable Supreme Court
\ncould be termed obiter dicta.  The said contention has got to be
\ndiscountenanced.  The reasons are as follows:-\n<\/p>\n
\t\tShamim Ara’s case arose out of a petition for maintenance filed by
\nthe wife under Section 125 of the Criminal Procedure Code. It was contended
\ntherein by the husband that the marriage was dissolved by pronouncement of
\n‘talaq’ even prior to filing of the petition  and that the pronouncement of
\n‘talaq’ was communicated during the pendency of the said proceedings.  The
\nHonourable Supreme Court in the said case considered not only the question of
\neffective communication of alleged ‘talaq’ pronounced but also the validity of
\nsuch alleged ‘talaq’.  While dealing with the said case, it was observed in para
\n6 of the said judgment of the Supreme Court as follows:-\n<\/p>\n
\t“6. The singular issue arising for decision is whether the appellant can
\nbe said to have been divorced and the said divorce communicated to the appellant
\nso as to become effective from 05.12.1990, the date of filing of the written
\nstatement by the respondent no.2 in these proceedings.”\n<\/p>\n
\t8.Referring to the said question framed by the Supreme Court in the said
\ncase for determination, the learned counsel for the appellant contended that the
\nonly question that arose for consideration before the Supreme court was
\neffectiveness of the communication of ‘talaq’ allegedly pronounced by the
\nhusband.  The said contention cannot be countenanced. A bare reading of the
\nabove said passage extracted from the judgment of the Supreme Court will show
\nthat there are two parts of the above said question framed by the Supreme Court
\nin Shamim Ara’s case. The first part deals with the question of valid
\npronouncement of ‘talaq’ and the second part deals with the effective
\ncommunication of the same to the wife.  While dealing with the first part, their
\nLordship of the Supreme Court held that to be a valid ‘talaq’, it must have been
\npronounced for a reasonable cause and it should have been preceded by an attempt
\nof conciliation as indicated supra. Therefore, this Court is not inclined to
\naccept the far reaching contention of the learned counsel for the appellant that
\nthe above said observation made by the Hon’ble Supreme Court regarding the
\nconditions for a valid ‘talaq’ is only an obiter dicta and not a binding
\nprecedent.  Both the Courts below have concurrently found that there was no
\nattempt of conciliation in the manner indicated in the above said Judgments of
\nthe Gauhati High Court and the Hon’ble Supreme Court.\n<\/p>\n
\t10.The learned counsel for the appellant made an attempt to convince the
\nCourt that Ex.B1 and Ex.B2 filed by the respondent\/defendant themselves would
\nprove that there was an attempt of conciliation and that the same failed,
\npursuant to which the appellant\/plaintiff pronounced ‘talaq’.  Of course, it is
\ntrue that there was an attempt of conciliation but the same was not the one in
\ncompliance with the condition stipulated for a valid conciliation preceding
\npronouncement of ‘Talaq’.  Ex.B1 is the copy of the letter sent by the father of
\nthe respondent\/defendant to the Jamath.  Ex.B2 is the copy of the communication
\nreceived from the Jamath in reply to the above said letter.  It is clear from
\nthe said documents that though the Jamath made an attempt to conduct an enquiry
\nand conciliate, the appellant\/plaintiff did not respond.  Even assuming that the
\nsame was an attempt of conciliation, the same does not answer the requirement of
\nthe conciliation contemplated in the above said Judgments of the Gauhati High
\nCourt and the Supreme Court.  The attempt of conciliation should have been made
\nby two arbiters:-one selected by the wife from her family and the other selected
\nby the husband from his family.  Admittedly no such attempt of conciliation was
\nmade by the arbiters selected by the parties as indicated above. Therefore,
\nfactually also the appellant has miserably failed in his attempt to challenge
\nthe finding of the Courts below that there was no conciliation before
\npronouncement of ‘talaq’.\n<\/p>\n
\t\t11.Except the contention that the reliance made by the Courts below
\non the observation of the Hon’ble Supreme Court made in Shamim Ara’s case
\nconcerning the condition for the pronouncement of a valid ‘talaq’, no other
\nsubstantial questions of law is proved to have involved in the second appeal.
\nWhether an attempt of conciliation in the manner described above should have
\npreceded the pronouncement of ‘talaq’ to validly bring an end to the matrimonial
\nrelationship was the question considered and clearly answered by the Hon’ble
\nSupreme Court.  When such a question of law was finally decided and declared by
\nthe highest forum of this Country, the same cannot be accepted as a substantial
\nquestion of law.  Therefore, this Court comes to  the conclusion that the
\nappellant has not succeeded in proving that this second appeal involves any
\nsubstantial question of law to be decided by this Court. The only question of
\nlaw involved in the case has already been decided by the Supreme Court and the
\nCourts below have rightly applied the ratio laid down by the Supreme Court to
\nthe facts of the case on hand.\n<\/p>\n
\t\t12.Under these circumstances, this Court is of the view that there
\nis nothing to interfere with the concurrent judgments of the Courts below and
\nthat the appeal is liable to be dismissed. Accordingly, the Second Appeal is
\ndismissed. However, there shall be no order as to costs  as the Second Appeal is
\ndismissed at the stage of admission itself.  Consequently, the connected
\nmiscellaneous petition is also dismissed.\n<\/p>\n
Mpk<\/p>\n
To<\/p>\n
1.The Sub Judge,
\n  Uthamapalayam,<\/p>\n
2.The District Munsif,
\n  Uthamapalayam.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Ajmalkhan vs Doulath Begam on 28 November, 2007 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28\/11\/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD)No.1040 of 2007 and M.P.No.2 of 2007 Ajmalkhan … Appellant Vs. Doulath Begam … Respondent PRAYER IN S.A.890\/1995 Second Appeal filed under Section 100 of the Code of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-75344","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAjmalkhan vs Doulath Begam on 28 November, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ajmalkhan-vs-doulath-begam-on-28-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ajmalkhan vs Doulath Begam on 28 November, 2007 - 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