{"id":93305,"date":"2010-10-14T00:00:00","date_gmt":"2010-10-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mariyam-akhter-anr-vs-wazir-mohd-on-14-october-2010"},"modified":"2016-01-02T21:47:55","modified_gmt":"2016-01-02T16:17:55","slug":"mariyam-akhter-anr-vs-wazir-mohd-on-14-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mariyam-akhter-anr-vs-wazir-mohd-on-14-october-2010","title":{"rendered":"Mariyam Akhter & Anr vs Wazir Mohd on 14 October, 2010"},"content":{"rendered":"
Jammu High Court<\/div>\n
Mariyam Akhter & Anr vs Wazir Mohd on 14 October, 2010<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nCr Rev No. 51 OF 2005 AND Cr M P No. 15 OF 2005    \nMariyam Akhter & anr \nPetitioners\nWazir Mohd  \nRespondent  \n!Mr. Nirmal Kotwal, Advocate\n^Mr. S. S. Ahmed, Advocate \n\nHonble Mr. Justice Dr. Aftab H. Saikia, Chief Justice\nDate: 14.10.2010 \n:J U D G M E N T :\n<\/pre>\n
Introduction:\n<\/p>\n
Before delving upon to resolve the issue raised in the instant revision petition, it is
\nconsidered that the judgment will be benefited if the status of Muslim women, vis-
\n`-vis, the scope and effect of valid divorce as mandated under the Mohammadan
\nlaw is highlighted. The same is, accordingly, discussed hereinunder.\n<\/p>\n
During the early period of Islam, Muslim women were held in high esteem and they
\noccupied exalted positions and in the days of Holy Prophet Mohammad, a Muslim
\nwoman was given in the society a position of equality with the opposite gender.
\nEqual treatments were meted out to the women. The ladies of the family of the
\nProphet were noted for their learning, their virtue, courage and their strength of
\ncharacter. (See S.A.Kaders Muslim Law of Marriage and Succession in India, p.
\n80-81)<\/p>\n
 Even, in the terms of modern concept of giving gender justice, which is essential,
\nintegral and inseparable part of human rights, women, who form one half of the
\nhuman race, have every right to claim equality before law and equal protection of
\nlaws as envisaged under Article 14 of the Constitution of India.\n<\/p>\n
Therefore, when women have the right to marry, they have also the right to be
\nmaintained by their husbands. This right  has been emphasized in Article 6(1) of
\nUniversal Declaration of Human Rights adopted and proclaimed by the General
\nAssembly of the United Nations on 10th December 1948 declares thus:-
\nMen and women, of full age, without any limitation due to race, nationality or
\nreligion, have the right to marry and to found a family. They are entitled to equal
\nrights as to marriage, during marriage and at its dissolution.<\/p>\n
5.      The Verse 35 Sura Al-Ahzab (35) of the Holy Quran would clearly show that
\nhow the women were treated as equals with men. The Verse 35 reads thus-\n<\/p>\n
                For Muslim men and women,
\n                For believing men and women,
\n                For devout men and women,
\n                For true men and women,
\n                For men and women who are
\n                Patient and constant, for men
\n                And women who humble themselves,
\n                For men and women who give
\n                In charity, for men and women
\n                Who fast
\n                For men and women who
\n                Guard their chastity, and
\n                For men and women who
\n                Engage much in Allahs remembrance
\n                For them has Allah prepared
\n                Forgiveness and great reward.<\/p>\n
However, in post-Islamic period, it is seen that the degradation and degeneration set
\nin, in the status of women. In male-dominated world,  Muslim women were pushed
\nto the whims and fancies  of the men- folk and this is reflected  primarily in the case
\nof dissolution of marriage, i.e., divorce, which is known as Talaq in Arabic
\nmeaning. The doctrine of talaq-ul-bidet (triple talaq-one form of talaq) was evolved
\nas a convenient divorce to dissolve the marriage at the will and whims of the
\nMuslim husband.\n<\/p><\/blockquote>\n
None the less, it is incumbent on the part of Muslim husband to maintain his wife so
\nlong as she is loyal and faithful to him and obeys his reasonable orders. But once
\nshe is divorced, she is entitled to maintenance as per law being in force in India, i.e.,
\nMuslim Women (Protection of Rights on Divorce) Act, 1986.\n<\/p>\n
In the above background, it is to be considered that under what circumstances a
\nMuslim married woman can be divorced and what are the essential conditions for
\ncausing divorce and procedure to be followed to effect a valid divorce.\n<\/p>\n
The instant revision petition witnesses the deliberation of these fundamental issues
\npertaining to the validity of the pronouncement of the divorce to a Muslim woman,
\nvis-`-vis, her entitlement to maintenance, as married woman. Maintenance
\nincludes food, raiment and lodging (Mulla-Mohammedan Law, para-369)  <\/p>\n
Factual Matrix in brief outlined:\n<\/p>\n
The petitioner herein was married to the respondent on 12.5.1991 and the marriage
\nbetween them was solemnized according to Muslim rites (Sharah Mohmdi) at Incha
\nMohra Kula Tehsil Ramnagar. After marriage, both of them lived like husband and
\nwife at the respondents residence. As  luck would have it, the petitioners marriage
\nlife experienced turbulence. She was meted out ill-treatment by the respondent. The
\nrespondent used to beat her and made false allegations of unchastity on her.\n<\/p>\n
Eventually, she was driven out of her husbands house five and half months after
\nthe marriage and, on the relevant time, she was pregnant. The respondent also
\nsnatched her ornaments and clothes and did not care to look after her till date and
\nshe was compelled to stay at her parental house, since she was turned out from her
\nmatrimonial house.\n<\/p>\n
Meanwhile, she had born the respondent a female child. Even after the birth of their
\ndaughter, the respondent refused to pay any maintenance either to the petitioner or
\nto her baby child.\n<\/p>\n
Finding no other alternative, the petitioner initiated proceeding under Section 488
\nof the Code of Criminal Procedure Svt. 1989 (for short Cr. P. C) for granting
\nmaintenance allowance of Rs. 1000\/-  per month to her and Rs. 500\/- per month to
\nher daughter against the respondent-husband before the Court of Sub-Judge(Judicial
\nMagistrate Ist Class), Ramnagar.\n<\/p>\n
It is on record that on 22.6.1994, the respondent, on being noticed, appeared before
\nthe Court and granted opportunities to file objections from 22.6.1994 to 24.9.1994.\n<\/p>\n
On 17.10.1994, being an adjourned date, neither the respondent nor his engaged
\ncounsel appeared in the Court and their absence resulted in ex-parte proceedings
\nagainst the respondent.\n<\/p>\n
Meanwhile, the respondent moved a revision petition before this High Court for
\ntransfer of the present petition, but the same was dismissed by the High Court on
\n6.5.1995 with a direction to the Court of Sub-Judge (Judicial Magistrate Ist Class),
\nRamnagar to decide the claim of the petitioner within a period of three months,
\ndirecting the parties to appear before the Court on 29.5.1995.\n<\/p>\n
But on 29.5.1995 also, neither the respondent nor his counsel appeared before the
\nCourt despite directions given by the High Court and, ultimately, the matter was
\nfixed on 2.6.1995, on which date also the respondent preferred not to appear in
\nperson or through counsel.\n<\/p>\n
Finally, the matter was heard on 24.6.1995 and after having considered the evidence
\nand arguments on behalf of the petitioner, maintenance allowance of Rs. 350\/- per
\nmonth and Rs. 250\/- per month were granted to the petitioner as well as petitioner
\nno. 2, daughter of the petitioner respectively.\n<\/p>\n
Being dis-satisfied with the granting of such maintenance, respondent-husband
\nmoved the Court of Sessions, Judge, Udhampur by filing a revision petition being
\nno. 3\/1996, which was dismissed by the learned Judge by his order dated
\n19.12.1997.\n<\/p>\n
It is pertinent to mention herein that meanwhile, the respondent has contracted
\nsecond marriage and has been living with his second wife and a daughter has been
\nborn to his second wife from him.\n<\/p>\n
Be it also noted herein that the respondent, on 8.8.1995, made an application before
\nthe Magistrate for setting aside the ex-parte order of maintenance granted by order
\ndated 24.6.1995 in file no. 17\/Misc of 1995. The application for setting aside the
\nex-parte order  of maintenance is extracted below:\n<\/p>\n
The respondent applicant most respectfully submits this application as under:-
\nThat the above titled proceedings were pending in this court against the applicant
\nrespondent for maintenance.\n<\/p>\n
That the applicant had filed a Criminal Transfer application No. 66 of 1994 in the
\nHigh Court to transfer the said proceedings to any court at Jammu because the
\napplicant respondent apprehended harm at the hands of the relatives of the
\npetitioner in this above titled maintenance application.
\nThat the Criminal Transfer application of the applicant respondent was dismissed
\nby the Honble Court on 6th May, 1995. The applicant was not personally present in
\nthe Honble High Court when the order was made. A photo copy of the order is
\nfiled and marked Annexure-1.\n<\/p>\n
That the applicant received information by post from the advocate vide his letter
\ndated 16th June, 1995 photo copy whereof isw filed and marked Annexure-2.
\nThat therefore the applicant did not know that the applicant had to appear in this
\ncourt on 29th of May, 1995 and was, therefore, not present on that day in this court.
\nThat it appears that the advocate of the applicant did not take steps to inform the
\napplicant respondent in the above proceedings because his clerk was absent and he
\nwas busy. In any case, for the negligence of the advocate,  the applicant should not
\nsuffer because the applicant had properly instructed and engaged the said advocate.
\nThat the absence of the applicant respondent  was, therefore, for the reasons beyond
\nthe control of the applicant respondent who all along remained under the impression
\nthat the transfer matter is still pending in the High Court. The absence of the
\napplicant  respondent was, therefore,  not deliberate and the applicant had,
\ntherefore, not been absent wilfully or deliberately.\n<\/p>\n
That, however, it appears that the exparte proceedings were ordered against the
\napplicant herein on 2nd June, 1995 and exparte order directing the payment of
\nmaintenance was made on 24th of June, 1995.\n<\/p>\n
That the applicant Marriyam Akhtar in the absence of the applicant respondent
\nconcealed the fact that she had been divorced vide divorce deed dated 18.5.1992. A
\nlegible copy of the divorce deed is also filed herewith for ready reference.
\nThat in this court Shri Sudesh Kumar Advocate represented the applicant
\nrespondent. However, it appears that no notice was sent to him by this court after
\nthe file was received from the Honble Court.\n<\/p>\n
That all the proceedings under Sec. 488 Cr. P. C had to be conducted in the
\npresence of respondent. However, in this case the respondent has been proceeded
\nagainst exparte and as stated above the absence was neither wilful nor deliberate.\n<\/p>\n
An affidavit duly sworn in is enclosed herewith in support of this application.\n<\/p>\n
                                        IN THE PREMISES
\nIt is most respectfully prayed that your honour may be pleased to allow this
\napplication and to set aside the exparte order dated 24.6.95 and to afford the
\napplicant an opportunity  to appear and contest the application of the petitioner
\nreferred above.\n<\/p>\n
                                                Sd\/-\n<\/p>\n
                                        Applicant-respondent
\n                                              through counsel
\n                                  Dated 1.8.1995.<\/p>\n
Having failed to get any relief against the order of granting of maintenance
\nallowance, the respondent preferred an application under Section 489 of the Cr. P.
\nC being file no. 19-A\/Misc before the Judicial Magistrate Ist Class, Ramnagar for
\ncancellation  of the Courts order  dated 24.6.1995, which awarded monthly
\nmaintenance allowance to the petitioner and her child,  claiming that she was not
\nentitled for any maintenance  for the reasons that:\n<\/p>\n
the respondent  divorced the petitioner through written divorce executed on
\n18.5.1992, which was duly  communicated to her through registered post;
\nsuch divorce was admitted by the petitioner by executing an agreement on 4.1.1993;
\nand
\nthe petitioner admitted voluntarily to be divorcee while making a statement before
\nthe Tehsildar, Ramnagar in a proceeding for seeking Residents of Backward Area
\nCertificate for her.\n<\/p>\n
The learned Magistrate by order dated 22.2.2002, having considered  the statements
\nmade in the application as well as upon hearing the parties, found that the petitioner
\nwas divorced on 8.8.1995 or on 18.5.1992 as stated in para 9 of the application for
\nseeking to set aside the exparte order dated 24.6.1995, as quoted herein above at
\nparagraph 22 of the judgement and the Ruling that  the respondent-husband had
\nunfettered power of divorce and, accordingly, it was held that the petitioner, being
\nthe divorcee wife, should have no claim to maintenance after 8.8.1995. However,
\naccording to Court, the child would continue to get the maintenance, as awarded.\n<\/p>\n
The order dated 22.2.2002 was carried to the High Court by the petitioner in Cr.
\nRev. no. 27\/2002. This Court vide order dated 10.12.2002 refraining itself from
\nrendering any decision as to whether there was a valid divorce against the
\npetitioner, only dealt with the quantum of maintenance and modified the
\nmaintenance allowance  granted under order dated 22.2.2002 holding that the
\ndaughter  would be held entitled to interim maintenance at the rate of Rs. 1000\/- per
\nmonth to the exclusion of the petitioner. It was further held as under:-
\nAs to whether  valid divorce or not, parties are left free to put this aspect
\nbefore the Court below. This issue would be settled and the parties can lead
\nevidence. Parties  would appear before the trial Court on 24th of January, 2003.
\nFurther maintenance would depend on the final verdict of the Court.<\/p>\n
With the above directions, this Court remitted the matter back to the Court below.\n<\/p>\n
The learned Magistrate on receipt of the order of the High Court and in compliance
\nof the directions to resolve the issue of divorce between the parties, proceeded to
\ndecide the application  and examined three witnesses adduced by the petitioner-
\nwife, when  two witnesses were examined  for the respondent-husband.
\nHaving appreciated the evidence so recorded and also  upon hearing the learned
\ncounsel for the parties,  learned Magistrate came to the conclusion  that the
\nrespondent-husband divorced his wife\/ the petitioner  in accordance  with the
\nMohammadan Law, and, as such,  the petitioner is not entitled to claim maintenance
\nfrom the respondent being the divorcee wife. Accordingly, the application under
\nSection 489 Cr. P. C was disposed of, maintaining the modified order passed by the
\nHigh Court on 10.12.2002, as regard the maintenance allowance to petitioner no. 2,
\ntheir daughter<\/p>\n
(C)     Order under challenge:\n<\/p>\n
Order dated 26.2.2005, as mentioned above, has been assailed by the petitioner
\npleading that:\n<\/p>\n
There is no valid divorce ever pronounced by the respondent against her;
\nThe procedure  of divorce, i.e., Talaq has not been strictly followed; and
\nPetitioner, being continued to be wife, is entitled to get the maintenance.\n<\/p>\n
In consideration of the above, it is the case of the petitioner that the impugned order
\nis liable to be set aside and quashed.\n<\/p>\n
(D) Arguments Against the impugned order:\n<\/p>\n
Mr. Nirmal Kotwal, learned counsel representing the wife-petitioner has
\nvehemently contended that the learned Magistrate committed error both in law and
\non facts in entertaining the application under Section 489 Cr. P. C. itself and
\nthereby disentitling the petitioner from getting maintenance. According to him, such
\nfinding was legally incorrect, based on no evidence, and against the basic principles
\nof Muslim law.\n<\/p>\n
Rejecting the divorce, at the very outset, the learned counsel has submitted that no
\ndivorce was ever pronounced by the respondent to the petitioner at any point of
\ntime. The divorce deed dated 18.5.1992 produced by the respondent and relied by
\nthe Magistrate was never received by the petitioner and the same has already been
\ndisputed and rejected by her. The finding of the learned Magistrate to the effect that
\nthe divorce was pronounced by the husband   much earlier  before the maintenance
\nproceedings, i.e., the divorce was pronounced on 18.5.1992 and  the petition for
\nmaintenance was instituted on 4.11.1992, i.e., after six months, cannot be legally
\naccepted, for the simple reason that it is on the record that after institution of
\npetition for maintenance on 4.11.1992, due notices were sent to the respondent and
\nhe, for the reasons best known to him, neither appeared  nor filed any written
\nstatement through which he could have informed the court the factum of divorce
\nagainst his wife. Instead, he preferred an application before the Honble High Court
\nfor transfer of the case from Ramnagar to Jammu in Cr. Revision no. 63\/1994 on
\nthe ground that it was not convenient for him to go to Ramnagar and faced a threat
\nto his life from his wife\/ the petitioner and the said application was rejected by the
\nHigh Court by order dated 6.5.1995. Conveniently the respondent did no mention or
\ndivorce caused on 18.5.1992 in the said application so as to bring it to the
\nknowledge of the petitioner.\n<\/p>\n
The submissions of the learned counsel is that the respondent having got ample
\nopportunities to file written statement, neither he appeared before the Court  nor did
\nhe file the written statement.\n<\/p>\n
It is further contended that  reliance on the cutting of the daily English newspaper
\nKashmir Times as a proof of factum of divorce and its knowledge to the petitioner
\nby the court below is not tenable under law. The petitioner, being a lady from
\nRamnagar, did not have any knowledge about such paper publication not being
\nprominently exhibited in the concerned newspaper which was not in wide
\ncirculation in the area where the petitioner did reside and the same is clearly evident
\nfrom such publication itself. In a case of divorce, of present nature, such publication
\nis not acceptable under the law.\n<\/p>\n
As regards the finding of the learned Magistrate pertaining  to the admission made
\nbefore the Tehsildar, Ramnagar by the petitioner on her  divorce, it is contended
\nthat  said admission  is valid in law because the same was not made in any
\nproceedings in the Court of law and was not to be put any cross-examination. Even
\nthe Tehsildar, before whom such statement was made, was not examined by the
\nrespondent to prove the said factum.  According to the learned counsel this is not
\nacceptable under the law of evidence.  Mere making of such statement before a
\nTehsildar  in a matter of  seeking Residence of Backward Area Certificate  will not
\ngo to show that the petitioner was a divorcee and thereby   to make her
\ndisentitlement from getting maintenance.\n<\/p>\n
The last contention advanced on behalf of the petitioner  is that the alleged divorce
\nwas not pronounced in terms of the provisions of Muslim law based on Quranic
\ninjunction and, as such, the instant divorce, genuineness of which has been strongly
\nobjected and refuted by the petitioner, is not a divorce in the eye of law.
\nIn order to bolster up his submission, Mr. Kotwal has relied  on the following
\njudicial authorities of the Supreme Court and of this Court:-
\nShamim Ara v. State of U. P. and<\/a> anr (AIR 2002 SC 3551);\n<\/p>\n
Manzoor Ahmad Khan v. Mst. Saja and<\/a> ors (2003 (II) SLJ 619); and
\nMst. Amina Banoo v. Abdul Majid Ganai<\/a> (2005 (I) SLJ 341).\n<\/p>\n
(E)   Submission and contention in support of the   impugned judgment:\n<\/p>\n
supporting of the impugned judgment, Mr. S. S. Ahmed, learned counsel for the
\nrespondent has forcefully argued that under the Muslim Law, right of pronouncing
\ndivorce has been absolutely bestowed upon the husband who can only pronounce
\nthe Talaq in any form as Mohammadan law does not prescribe any particular form
\nfor causing divorce. A divorce can be effected either by orally by spoken word or
\nby written document. In the instant case, the petitioner was divorced by written
\ndivorce deed on 18.5.1992, six months  before the initiation of the maintenance
\nproceedings  by the petitioner on 4.11.1992. Even thereafter also, divorce was
\neffected by an agreement executed by both the parties on 4.1.1993 and the
\npetitioner was very much aware of both the written documents, more particularly
\nagreement of 4.1.1993, where she was a party.\n<\/p>\n
His further contention is that assuming, divorce was not effected by those above
\nmentioned documents, it is the petitioner, who herself admitted about her divorce
\nby making a statement in file no. 143\/NB dated 28.7.1995, wherein her statement
\nwas recorded on 21.12.1997 by the Tehsildar, Ramnagar, before whom she sought
\nfor a Residence of Backward Area certificate, to the effect that she was a divorcee.
\nHer this statement itself was sufficient to prove that the petitioner was divorced by
\nthe respondent.\n<\/p>\n
To substantiate his submission, he has relied upon a decision of the Apex Court in a
\ncase of Thiru John v. The Returning Officer and<\/a> ors, reported  as AIR 1977 SC
\n1724, wherein in paragraph 15,  it was held that it was well settled that a party s
\nadmission as defined in Sections 17 to 20 of the Evidence Act, 1872 (the Act)
\nfulfilling the requirements of Section 21, of the Act, was substantive evidence
\nproprio vigore. An admission, if clearly and unequivocally made was the best
\nevidence against the party making it and though not conclusive, shifted the onus on
\nto the maker on the principle that what a party himself admits to be true may
\nreasonably be presumed to be so and until the fact admitted was rebutted the fact
\nadmitted must be taken to be established.\n<\/p>\n
(F)     Issues to be decided:\n<\/p>\n
39.     Having heard learned counsel for the parties  at length as well as on
\nthorough  scrutiny of the factual situation emerged from the arguments advanced on
\nbehalf of the parties, the basic questions that have arisen for resolution in this case,
\nare:\n<\/p>\n
Whether there had been a divorced duly effected under the Mohammadan law
\nagainst the petitioner.\n<\/p>\n
Whether the divorce was proved.\n<\/p>\n
(G)     Tenets of  Mohammadan Law on Divorce:\n<\/p>\n
40.     According to Mulla in his Principles of Mohammadan law (19th Edition)  By
\nM. Hidayatullah and Arshad Hidayatullah, the contract of marriage under
\nMohammadan law may be dissolved  in any one of the following ways : (1) by the
\nhusband  at his will, without the intervention of a Court; (2) by mutual consent of
\nthe husband and wife, without the intervention of a Court; (3) by a judicial decree at
\nthe suit of the husband or wife. However, the wife cannot divorce herself from her
\nhusband without his consent, except under a contract whether made before or after
\nmarriage, but she may, in some cases, obtain a divorce by judicial decree( Section
\n307 page 258).\n<\/p>\n
41.     When the divorce proceeds from the husband, it is called  talak; when it is
\neffected by mutual consent, it is called khula or mubaraat, according to the terms of
\nthe contract between the parties.{ (Mullas Principles of Mohammadan Law
\n(supra) (Section 307)  By M. Hidayatullah and Arshad Hidayatullah at page 258)}.\n<\/p>\n
42.     A talak may be effected (1) Orally (by spoken words) or (2) by a written
\ndocument called a talaknama. So far  oral talak is concerned, no particular form of
\nwords is prescribed for effecting a talak. If the words are express (saheeh) or well
\nunderstood as implying  divorce, no proof of intention is required. If words are
\nambiguous (kinayat), the intention must be proved. It is not necessary that talak
\nshould be pronounced in presence of the wife or even addressed to her.\n<\/p>\n
43.     As regards talak in writing, talak can be effected by a written document
\ncalled talaknama. It is required that such type of deed may be executed in presence
\nof the kazi or of the wifes father or of the other witnesses. The deed is said to be in
\nthe customary form if it is properly superscribed and addressed so as to show the
\nname of the writer and the person addressed. If it is in customary form it is called
\nmanifest provided that it can be easily read and comprehended.  If the deed is in
\ncustomary form and manifest the intention to divorce is presumed. Otherwise, the
\nintention to divorce must be proved. {Mullas Principles of Mohammadan Law
\n(supra) (Section 310 page 259)}.\n<\/p>\n
44.     There are two kinds of talaq as recognized under HanafIs Mohammedan
\nLaw namely; (i) Talaq-us-sunnat and (ii) Talaq-ul-bidat or (iii) Talaq-ul-badai.
\nTalaq-us-sunnat is effected in accordance with the rules laid down in the traditions,
\ni.e., Prophet Sunnat  headed down by him or by his principle disciples. On the other
\nhand, the talaq-ul-bidat is heretical or irregular  mode of divorce which was
\nintroduced in 2nd Century of Mohammedan era. In this kind of talaq, as a matter of
\nfact, there is capricious  and irregular power of divorce ,which was, in the
\nbeginning, left  to the husband, was strongly disapproved by the Prophet.\n<\/p>\n
45.     Talaq-us-sunnat is either Talaq Ashan or Talaq Hasan. The mode of giving
\nthis talaq may be discussed as under:-\n<\/p>\n
(1) Talak ashan, which consists of a single pronouncement of divoce made during a
\ntuhr (period between menstruations) followed by abstinence from sexual
\nintercourse for the period of iddat.\n<\/p>\n
(2). Talak hasan that  consists of  three pronouncements made during successive
\ntuhrs, no intercourse taking place during any of the three tuhrs. And<\/p>\n
(3)  Talak-ul bidaat or talak-i-badai  which consists of  three pronouncements made
\nduring a single tuhr either in one sentence, e.g.,  I divorce thee thrice, – or in a
\nseparate sentences, e.g.,  I divorce thee, I divorce thee, I divorce thee.\n<\/p>\n
  The above proposition of law as regards divorce  or talaq primarily emerged  from
\nthe text of Holy Quran, which is the primary source of  Muslim law on the
\nrelationship between the husband and the wife as well as pronouncement of divorce
\nby the husband against the wife.\n<\/p>\n
 The mode and procedure to effect a valid divorce has been mandated in the Holy
\nQuran. The Holy Quran ordains in clear and  un-equivocal terms for re-conciliation
\nto effect a valid divorce in Sura Nisa (4). In this regard Verses Nos. 128 to 130,
\nbeing relevant, may be quoted as under:-\n<\/p>\n
                128.  If a wife fears
\n                         Cruelty or desertion
\n                         On her husbands part,
\n                         There is no blame on them
\n                         If they arrange
\n An amicable settlement
\n                         Between themselves;\n<\/p><\/blockquote>\n
                         And such settlement is based;
\n                         Even though mens souls
\n                         Are swayed by greed.\n<\/p><\/blockquote>\n
                         But if ye do good
\n                         And practice self-restraint,
\n                         Allah is well-acquainted
\n                         With all that ye do.\n<\/p><\/blockquote>\n
129.   Ye are never able
\n         To do justice
\n         Between wives
\n         Even if it is
\n         Your ardent desire;\n<\/p>\n
         But turn not away
\n         (From a woman) altogether,
\n         So as to leave her
\n(as it were)
\n         Hanging (in the air).\n<\/p>\n
         If ye come to a friendly
\n         Understanding, and practice
\n         Self-restraint, Allah is
\n         Oft-forgiving,
\n Most merciful.\n<\/p>\n
 But if they separate
\n Allah will provide abundance
\n For each of them from His
\n All-reaching pounty;\n<\/p>\n
 For Allah is He
\n That careth for all
\n And is wise.\n<\/p>\n
(see the Holy Quran English Translation  of the
\nMeaning and the Commentary (Revised and Edited) by
\nthe Presidency of Islamic Researchers, IFTA, Mushaf Al-Madinah).<\/p>\n
48.     Even recognition of the institution of marriage is manifest from the Quranic
\nVerses in Sura Nisa (4). In Verse No. 1 wherein, it is mandated as under:\n<\/p>\n
                          1.   O mankind ! fear
\n                                Your Guardian Lord,
\n                                 Who created you
\n From a single Person,
\n                         Created, out of it,
\n                         His mate, and from them twain
\n                         Scattered (like seeds)
\n                         Countless men and women;-
\n                         Fear Allah, through Whom
\n                         Ye demand your mutual (rights),
\n                         And be heedful of the wombs
\n                         (That bore you): for Allah
\n                         Ever watches over you.\n<\/p><\/blockquote>\n
               {see the Holy Quran (Supra)}.<\/p>\n<\/blockquote>\n
49.     The learned Commentator Yousuf Ali in his Book Translation and
\nCommentary  of Holy Quran at note 254 page 90, commenting on the subject of
\ntalaq has observed;-\n<\/p>\n
Islam tried to maintain the married state as far as possible. Especially where
\nchildren are concerned, but it is against the restriction of the liberty of men and
\nwomen in such vitally important matters  as love and family life.  It will check hasty
\naction as far as possible and leave the door to reconciliation open at many stages.
\nEven after divorce a suggestion of reconciliation is made, subject to certain
\nprecautions against thoughtless action. A period of waiting (iddet) for three
\nmonthly courses is prescribed in order to see if the marriage conditionally dissolved
\nis likely to result in issue. But this is not necessary where the divorced woman is
\nvirgin: it is definitely declared that woman and man shall have similar rights
\nagainst each other.\n<\/p>\n
        Yousuf Ali (Supra at note 256 page 90) has further observed:\n<\/p>\n
Where divorce for mutual incompatibility  is allowed, there is danger that the
\nparties might act hastly, then repent, and again wish to separate. To prevent such
\ncapricious action repeatedly, a limit is prescribed. Two divorce (with a
\nreconciliation between) are allowed after that the parties must unitedly make up
\ntheir minds , either to dissolve their union permanently or to leave  honourable lives
\ntogether in mutual love and forbearance to hold together or equitable terms,
\nneither  party worrying the order nor grumbling nor evading the duties and
\nresponsibilities of marriage.<\/p>\n
        Yousuf Ali  proceeds:\n<\/p>\n
        All the prohibitions and limits prescribed here are in the interest of good
\nand honourable lives for both sides, and in the interest s of a clean and honourable
\nsocial life without public or private scandals..<\/p>\n
50.     The Holy Quran lays down the procedure for effecting a           re-
\nconciliation. Verse No. 35 Sura Nisa (4) provides as under:-\n<\/p>\n
        35.    If ye fear a breach
\n                Between them twain,
\n                        Appoint (two) arbiters,
\n                One from his family,
\n                And other from hers;\n<\/p><\/blockquote>\n
                If they seek to set thighs aright,
\n                Allah will cause
\n                Their reconciliation:<\/p><\/blockquote>\n
                For Allah hath full knowledge,
\n                And is acquainted
\nWith all things.<\/p>\n
51.     In the above verses, the Holy Quran stipulated a condition precedent  to
\ndivorce. Yusuf Ali, the great Jurist and Commentator (Supra) at Note 549 page 191,
\nobserved  about the above those verses as follows:\n<\/p>\n
An excellent plan for settling family disputes, without too much publicity or mud-
\nthrowing, or resort to the chicaneries  of the law. The Latin countries recognize this
\nplan in their legal system. It is a pity that Muslim do not resort to it universally, as
\nthey should. The arbiters from each family would know the idiosyncraeies  of both
\nparties, and would be able, with Gods help, effect a real reconciliation.<\/p>\n
Maulana Mohammad Ali in his book Religion  of Islam at page 671 commented
\nthat:\n<\/p>\n
This verse lays down the procedure to be adopted when a case for divorce arises. It
\nis not for the husband to put away his wife; it is the business of the judge to decide
\nthe case. Nor should the divorce case be made too public. The Judge is required to
\nappoint two arbitrators, one belong to the wifes family and the other to the
\nhusbands. These two arbitrators will find out the facts but their objective must be
\nto effect a reconciliation between the parties. If all hopes of reconciliation fail a
\ndivorce is allowed. But the final decision rests with the judge who is legally entitled
\nto pronounce a divorce. Cases were decided in accordance with the directions
\ncontained in this verse in the early days of Islam.<\/p>\n
53.     Commenting further on these verses, Maulana Mohammad Ali (Supra)
\nobserved:\n<\/p>\n
From what has been said above, it is clear that not only must there be a good cause
\nfor divorce, but that all means to effect reconciliation must have been exhausted
\nbefore resort is had to this extreme measure. The impression that a Muslim husband
\nmay put away his wife at his mere caprice, is a grave distortion of the Islamic
\ninstitution of divorce.<\/p>\n
Keeping in view these teachings of the Holy Quran, the Prophet declared divorce to
\nbe a most hateful of all things permitted. The mentality of the Muslim is to face
\ndifficulties of the married life along with its comforts and to avoid disturbing the
\ndisruption of the family relations as long as possible, turning to divorce only as a
\nlast resort.\n<\/p>\n
A close perusal of our Quranic verses as quoted above and commentaries thereon
\nby well recognised scholars of great eminence would come to indicate that no
\ndivorce is duly effected if it is in violation of injunction of Holy Quran. Ameer Ali
\nin his treaties on Mohammedan Law  observed :\n<\/p>\n
The Prophet pronounced talak to be a most destable thing before the Almighty
\nGod of all permitted things. If talak is given without  any reason it is stupidity and
\ningratitude to God.<\/p>\n
(I)      Judicial Interpretation:\n<\/p>\n
It is said that talaq is a sword which is brandished by the Muslim husband against
\nhis wife with whims and caprice. Even  judicial authorities gave in the past its nod
\nto  this concept of talaq to be exercised by the husband.\n<\/p>\n
In the case of Ahmad Kasim Mulla  v. Khatun Bibi, reported in ILR 59 Calcutta 833,
\nwhich has  so long been regarded as a leading case on the law of divorce, Justice
\nCostello held as under:-\n<\/p>\n
Upon that point (divorce), there are a number if authorities and I have carefully
\nconsidered this point as dealt with in the very early authorities to see whether I am
\nin agreement with the mere recent decisions of the Courts. I regret that I have to
\ncome to the conclusion that as the law stands at present, any Mohamedan may
\ndivorce his wife at his mere whim and caprice.<\/p>\n
In another case of  Sarabai v. Babiabai (ILR 30 Bombay 537),  while observing that
\ndivorce can be effected mere on whims, held:\n<\/p>\n
It is good in law, though bad in theology.\n<\/p>\n
59.     However, the whole approach  to Muslim divorce has started changing with
\nthe deeper study of the subject that discloses significantly realistic, rational and
\nmodern law divorce. Those are effectively reflected in the judicial decisions of the
\nrecent years.  The Kerala High Court speaking through Krishna Ayer, J (as the then)
\nin case of A. Yusuf Rawther v. Sawramma, reported in AIR 1971 Kerala 261, took a
\nrevolutionary view as regards divorce of Muslim women. In paragraphs 6 & 7 it
\nwas held as under:-\n<\/p>\n
6. The interpretation of a legislation, obviously intended to protect a weaker
\nsection of the community, like women, must be informed by the social perspective
\nand purpose and, within its grammatical flexibility, must further the beneficent
\nobject. And so we must appreciate the Islamic ethos and the general sociological
\nbackground which inspired the enactment of the law before locating the precise
\nconnotation of the words used in the statute.\n<\/p>\n
        .       .       .       .       .       .       .       .       .\n<\/p>\n
Since infallibility is not an attribute of the judiciary, the view has been ventured by
\nMuslim jurists that the Indo-anglian judicial exposition of the Islamic law of
\ndivorce has not exactly been just to the Holy Prophet or the Holy Book. Marginal
\ndistortions are inevitable when the Judicial Committee in Downing Street has to
\ninterpret Manu and Muhammad of India and Arabia. The soul of a culture-law is
\nlargely the formalised and enforceable expression of a communitys cultural norms-
\ncannot be fully understood by alien minds. The view that the Muslim husband
\nenjoys an arbitrary, unilateral power to inflict instant divorce does not accord with
\nIslamic injunctionsIndeed, a deeper study of the subject discloses a
\nsurprisingly rational, realistic and modern law of divorce..It is a popular
\nfallacy that a Muslim male enjoys, under the Quaranic law, unbridled authority to
\nliquidate the marriage. the whole Quoran expressly forbids a man to seek pretexts
\nfor divorcing his wife, so long as she remains faithful and obedient to him, if they
\n(namely, women) obey you, then do not seek a way against them Quoran IV:
\n34..\n<\/p>\n
        Commentators on the Quoran have rightly observed and this tallies with the
\nlaw now administered    in some Muslim countries like Iraq _ that the
\n        husband must satisfy the Court about the        reasons for divorce. However,
\nMuslim law, as supplied in India, has taken a course contrary to the spirit of what
\nthe Prophet or the Holy Quoran laid down and the same misconception vitiates the
\nlaw dealing with the wives right to divorce<\/p>\n
        Quoting Dr. Galwash, the learned Judge opined :\n<\/p>\n
        Marriage being regarded as a civil contract and as such not indissoluble,
\nthe Islamic law naturally recognises the right in both the parties, to dissolve the
\ncontract under certain given circumstances. Divorce, then, is a natural corollary to
\nthe conception of marriage as a contract,.
\nIt is clear, then, that Islam discourages divorce in principle, and permits it only
\nwhen it has become altogether impossible for the parties, to live together in peace
\nand harmony. It avoids, therefore, greater evil by choosing the lesser one, and opens
\na way for the parties to seek agreeable companions and, thus, to accommodate
\nthemselves more comfortably in their new homes.
\nDr. Galwash, as observed by this Court, concluded that divorce is permissible in
\nIslam in cases of extreme emergency.. <\/p>\n
60.     The Gauhati High Court in a  case of Jiauddin Ahmed v. Mrs. Anwara
\nBegum, reported as (1981) 1 Gauhati Law Reports 358, authored by Bahorul Islam,
\nJ (the then),  following  A. Yusuf Rawthers case (Supra), categorically held that a
\ntalaq could not be exercised at a caprice and whim of the husband and an attempt of
\nreconciliation was  a condition precedent to divorce.\n<\/p>\n
61.     The ratio of Jiauddin Ahmeds case (supra) approved by  Division Bench of
\nGauhati High Court  in (1) Rukia Khatun v. Abdul Khalique Laskar, reported in
\n(1981) 1 GLR 375; (2)  Zeenat Fatima v. Mohd Iqbal Anwar,<\/a> reported in 1993 GLR
\nSupp 256.\n<\/p>\n
62.     The Supreme Court  in Shamim Aras case (supra)  following A. Yusuf
\nRawther case (supra) , Jiauddin Ahmed v. Anwara Begum (supra), Rukia Khatuns
\ncase (supra), and relying to observations made in Bai Tahira v. Ali Hussian (AIR<\/a>
\n1979 SC 362) wherein the right of maintenance of  a Muslim divorcee was dealt,
\nwas in full agreement with the observations made on this judicial proceedings to the
\neffect that:\n<\/p>\n
Talak must be of reasonable cause ; and
\nThat must be proceeded by an attempt of reconciliation between the husband and
\nthe wife by two arbiters, one  chosen by the wife from her family and the other by
\nthe husband from his family.\n<\/p>\n
In paragraph 14, at page 3556 of Shamim Ara (Supra), the Apex Court  observed:
\nWe are in respectful agreement with the above said observations made by the
\nlearned Judges of High Court. We must note that the observations were made 20-30
\nyears before and out country has in recent times marched steps ahead in all walks of
\nlife including progressive interpretation of laws which cannot be lost sight of except
\nby compromising with regressive tends. What this Court observed in Bia Tahira v.
\nAli Hussain, AIR<\/a> 1979 SC 362 dealing with right to maintenance of a Muslim
\ndivorcee is noteworthy. To quote:\n<\/p>\n
The meaning of meanings is derived from values in a given society and its legal
\nsystem. Article 15(3) has compelling compassionate relevance in the context of S.
\n125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-
\nused wife and the derelict divorcee. This social perspective granted, the resolution
\nof all the disputes projected is easy. Surely, Parliament, in keeping with Art. 15(3)
\nand deliberate by design, made a special provision to help women in distress cast
\naway by divorce. Protection against moral and material abandonment manifest in
\nArt.39 is part of social and economic justice, specificated in Art.38, fulfilment of
\nwhich is fundamental to the governance of the county (Art.37). From this coign of
\nvantage we must view the printed text of the particular Code.
\nLaw is dynamic and its meaning cannot be pedantic but purposeful.<\/p>\n
63.     This Court in Manzoor Ahmed Khans (supra) and Mst. Amina Banoos
\ncase (supra) took the same view, as indicated above. It will be apt to quote relevant
\nportions of the reasons and findings recorded in Manzoor Ahmed Khans (supra).
\nRelevant Paragraph i.e; 11 is quoted herein below:\n<\/p>\n
The law on Talaq as ordained by Holy Quran is (i) that talaq must be for a
\nreasonable cause and (ii) that must be preceded by an attempt of reconciliation
\nbetween her husband and the wife by two arbiters, one chosen by the wife from her
\nfamily and the other by the husband from his. The issue has been subject matter of
\njudicial scrutiny since long. IN Shamim Ara v. State of U.P.<\/a> (supra), the Apex
\nCourt has relied upon and quoted the passages from various judgments of various
\nHigh Courts which are eye openers for those who think that a Muslim man can
\ndivorce his wife merely at whim or on caprice. One of those illuminating judgments
\nwas recorded by Justice V. R. Krishna Iyer as Judge of the High Court of Kerala (as
\nhis lordship then was) in A. Yousuf Rawther v. Sowramma, AIR 1971 Ker 261. The
\nSupreme Court, while relying on this judgment, has observed that it is virtually a
\nresearch document. While commenting on the above judgment in A. Yousuf
\nRawther v. Sowramma, Tahir Mahmood in his book The Muslim Law of India
\n(third edition 2002 New Version), in Chapter 6 on Divorce has stated as under:\n<\/p>\n
                                1.     Policy of Islamic Divorce Law:\n<\/p>\n
Noting the view of some Muslim scholars that the Indo-Anglican judicial exposition
\nof the Islamic law of divorce has not been just to its original tests, a learned Judge
\nof India has observed that indeed a deeper study of the subject discloses a
\nsurprisingly rational, realistic and modern law of divorce.\n<\/p>\n
                This observation presents a correct, unbiased   and authentic
\nview of the Islamic law of divorce.\n<\/p>\n
(I)     Reasons and Findings:\n<\/p>\n
64.     At the very outset it should be noted that the question of talak to be
\npronounced by the husband in case of oral divorce does not involve here in this
\ncase. It is no bodys case that the petitioner was divorced  by pronouncement of
\nspoken word  by the husband against her.  The basic case made out by the
\nrespondent-husband against the petitioner  herein is that he divorced his wife by a
\nwritten divorce on 18.5.1992 and, that too, prior to the institution of the
\nmaintenance proceedings by the wife on 4.11.1992. According to him, there was an
\nanother agreement executed on 4.1.1993. The case of the respondent is that written
\ndivorce deed dated 18.5.1992 was also sent to the petitioner through registered post.
\nThat apart, the petitioner voluntarily admitted before the Tehsildar, Ramnagar on
\n28.7.1995, before whom, she filed an application seeking for Resident of Backward
\nArea certificate, stating therein that she was a divorcee. It was also the case of the
\nrespondent that the factum of divorce was published in daily newspaper Kashmir
\nTimes on 9.11.1992.\n<\/p>\n
65.     So the entire matter revolves around  as to whether the divorce has been
\nduly effected by the above written divorce deeds or by her admission before the
\nTehsildar, Ramnagar or by publication in the newspaper Kashmir Times.\n<\/p>\n
66.     In support of their respective claims, both parties adduced evidence
\nexamining the witnesses.\n<\/p>\n
67.     The petitioner has strongly objected and refuted both the agreement of
\ndivorce as well as the written divorce deed. According to her,  she has never
\nexecuted any agreement of divorce  on 4.1.1993, as claimed by the respondent nor
\nhad she received any written divorce deed dated 18.5.1992 by registered post.\n<\/p>\n
68.     Records placed before this Court do not reveal any document  to show that
\nthe written divorce deed dated 18.5.1992 was ever sent by registered post. In fact, in
\nthe instant case, the respondent\/ husband, as it appears, did not make any attempt to
\nprove those documents relied upon by him.\n<\/p>\n
69.     Amazingly,  from a close perusal of the record, it transpires that  the
\nrespondent did not appear before the proceedings  initiated by the petitioner against
\nhim for granting maintenance on 4.11.1992 in her favour and in favour of her
\ndaughter nor had he preferred any written statement. By filing  written statement
\nbefore the Court, he would have brought on record  the written divorce deed dated
\n18.5.1992. In that case, a written statement stating of divorce filed by the husband
\nwould have been amounted to divorce.\n<\/p>\n
70.     It is on the record and also appears from the submissions and contentions
\nthat instead of filing written statement, he having  taken this plea  or that plea ,
\nmoved the higher forum either for transfer of the case or  for cancellation of the
\nmaintenance allowance having been granted by the Magistrate.\n<\/p>\n
71.     This Court has also considered the submissions put forward on behalf of the
\nparties as regards the paper publication, as noted above, by which the respondent
\nhas declared that he has divorced the petitioner. Carefully perused the paper cutting,
\nin question, published in daily newspaper Kashmir Times which has been placed
\nas Exhibit before the Court. The said paper cutting itself would indicate that the
\nsame lacks adequate and prominent exhibition in the space of the newspaper which
\ncan easily be skipped from the sight of an ordinary reader. Besides, the nature of
\npublication, as noticed, would not help the husband\/respondent to prove that the
\ndivorce was effectively executed.\n<\/p>\n
72.     The plea of admission made before the Tehsildar, Ramnagar has also been
\ngiven due consideration. The admission, as claimed on behalf of the respondent, is
\nnot an admission made in a proceeding.  In this regard, the judicial authority
\nreported in Thiru Johns case (Supra) relied upon to support the contention of
\nadmission by the petitioner as she is a divorcee, in our opinion is not applicable in
\nthe case in hand. Reason is that in the cited case, at paragraph 15 at page 1726 the
\nSupreme Court observed that it was well settled that a partys admission as defined
\nin Sections 17 to 21 of the Evidence Act, fulfilling the requirements of Section 21
\nof the Evidence Act. In the instant case, the so called admission, ex-facie does not
\nfulfil the provisions of Section 21 of the said Act. In this connection, it would be
\nproper and necessary to quote Section 21 of the said Act.\n<\/p>\n
        21. Proof of admissions against persons making them, and by or on their
\nbehalf-admissions are relevant and may be proved as against the persons who
\nmakes them, or his representative in interest; but they  cannot be proved by or on
\nbehalf of the persons who makes them or by his representative in interest, except in
\nthe following cases:-\n<\/p>\n
An admission may be proved by or on behalf of the persons making it, when it is of
\nsuch a nature that, if the person making it were dead, it would be relevant as
\nbetween third persons under section 32.\n<\/p>\n
An admission may be proved by or on behalf of a person making it, when it consists
\nof statement of the existence of any state of mind or body, relevant or in issue,
\nmade at or about the time when such state of mind or body existed, as is
\naccompanied by conduct rendering its falsehood improbable.
\nAn admission may be proved by or on behalf of the person making it, if it is
\nrelevant otherwise than as an admission.<\/p>\n
The Supreme Court in a case of Biswanath Prasad and others v. Dwarka Prasad &
\nOrs. reported in AIR 1974 SC 117, at para 8 ruled that:\n<\/p>\n
There is no merit even in the contention that because these three statements  Exs.
\nG, G2 and H- had not been put to the first plaintiff when he was in the witness box
\nor to the eighth defendant although he had discreetly kept away from giving
\nevidence, they cannot be used agasint him. counsel drew out attention to S.145 of
\nthe Indian Evidence Act. There is a cardinal distinction between a party who is the
\nauthor of a prior statement and a witness who is examined and is sought to be
\ndiscredited by use of his prior statement. In the former case an admission by a party
\nis substantive evidence, if it fulfils the requirements of S.21 of the Evidence Act: in
\nthe latter case a prior statement is used to discredit the credibility of the witness and
\ndoes not become substantive evidence. In the former, there is no necessary
\nrequirement of the statement containing the admission having to be put to the party
\nbecause it is evidence proprio vigore: in the latter case the Court cannot be invited
\nto disbelieve a witness on the strength of prior contradictory statement unless it has
\nbeen put to him, as required by S.145 of the Evidence Act, this distinction has been
\nclearly brought out in the ruling in Bharat Singhs case (1966) 1 SCR 606; 615-
\n16=(AIR 1966 SC 405). This Court dispose of a similar argument with the
\nfollowing observations:\n<\/p>\n
        Admissions are substantive evidence by themselves, in view of Sections 17
\n& 21 of the Indian Evidence Act, though they are not conclusive proof of the
\nmatters admitted. We are of the opinion that the admissions duly proved are
\nadmissible evidence irrespective of whether the party making them appeared in the
\nwitness box or not and whether  that party when appearing as witness was
\nconfronted with those statements in case it made a statement contrary to those
\nadmissions. The purpose  of contradicting the witness under S.145 of the Evidence
\nAct is very much different from the purpose of proving the admission. Admission is
\nsubstantive evidence of the fact admitted while a previous statement used to
\ncontradict a witness does not become substantive evidence and merely serves the
\npurpose of throwing doubt on the veracity of the witness. What weight is to be
\nattached to an admission made by a party is a matter different from its use as
\nadmissible evidence.\n<\/p>\n
74.     In the light of above precedent, the present admission cannot be said to be
\nthe admission for the purpose of making it substantial evidence. Proof is
\nestablishment of fact  by evidence or matters before the Court or legal Tribunal.
\nSuch admission made before an officer seeking certain certificate does not
\nconstitute evidence.  Since the admission was not  be made in any proceeding
\nhaving scope of cross-examination,  the same cannot be relied upon by the
\nrespondent in  support of a case  raising the issue  as to whether the respondent has
\nduly divorced the petitioner.\n<\/p>\n
75.     The most important point which has also taken note by the leaned
\nMagistrate is the question of reconciliation between the parties. Learned Magistrate
\nhas categorically observed in his finding that the mediation and reconciliation
\nmeeting between the parties were also proved by the statement of one witness
\nnamely Ghulam Rasool, who was examined as PW-3 on petitioners side but
\nsurprisingly on going through the statement of PW-3 Ghulam Rasool, which has
\nbeen quoted in the impugned judgment itself, it is seen that there is even no whisper
\nas regards having such reconciliation. For the sake of convenience the statement
\nrecorded in the judgment itself may be reproduced herein below:
\nPW-3 Ghulam Rasool; has deposed that the parties to the petition are husband and
\nwife. The petitioner had divorced by the respondent. He has heard about the divorce
\nbut does not possess personal knowledge. In his presence, the dowry articles were
\nreturned to the petitioner. At the time of handing over the dowry articles, he had
\nstood a witness to that document. He has identified his signatures. The dowry
\narticles were brought from Latti, the house of the respondent and the same were
\ndelivered to the petitioner. He had acted on the mutual consent of the parties.\n<\/p>\n
        On cross-examination he has deposed that parties were not divorced in his
\npresence. Now the parties are living separately and the respondent has contracted
\nsecond marriage. There is a custom in our community that divorce may be
\npronounced either orally or written and in the Court. The original list of property
\nproduced by the respondent has been admitted by him as true but denied its
\ncontents.<\/p>\n
76.     Be that as it may, having closely scrutinized the basic concept of divorce,
\nmandate of Holy Quran and commentaries of the jurists as legal authorities, it is
\nseen that the action taken and procedure adopted by the respondent to divorce his
\nwife, is not permissible under the law.  No reasonable cause has been shown for
\ndivorcing the petitioner and, such divorce was not preceded by nor has any attempt
\non reconciliation  ever been made between them by the two arbiters, as required
\nunder the law.\n<\/p>\n
77.     In terms of the above discussion, this Court is of the view that all those basic
\nquestions  taken up for consideration  have been appropriately answered and it can
\nunhesitatingly be held that :\n<\/p>\n
the divorce was not properly effected;\n<\/p>\n
ii.  the divorce was not validly proved.\n<\/p>\n
78.     The basic concept of law on divorce in the modern trend of thinking is to put
\nrestrictions on the caprice and whim of the husband to give  talak to his wife at any
\ntime without giving any reason whatsoever.  It must be exclusively dealt with  in
\naccordance with the Quranic injunction. If the relationship between the husband and
\nwife becomes strained, there should be two persons, one from each of the parties,
\nchosen as arbiters, who shall endeavour to cause reconciliation between the
\nhusband and wife and, if the same is not possible, then the divorce or talak may be
\neffected.  In other words, an attempt for reconciliation by the two relations, one
\neach of the parties is an essential condition precedent to divorce. {see also Jiauddin
\nAhmeds case (supra) at para 4}.\n<\/p>\n
79.     Having regard to the Quranic mandate, commentaries of the eminent jurists
\nof Mohammedan law as well as  the judicial authorities pronounced by the highest
\nand higher Courts, this Court held that divorce  is allowed only for a reasonable
\ncause and, secondly,  it must be preceded by an attempt to reconciliation  between
\nthe husband and the wife by two arbiters, one chosen by the wife from her family
\nand the other by the husband from his family.  If such reconciliation  fails only then
\nthere can be a valid divorce.\n<\/p>\n
(J)     The concept of  Reconciliation:\n<\/p>\n
80.     Blacks Law Dictionary (7th Edition) defines reconciliation as follows:
\n1. Restoration of harmony between persons or things that   had been in conflict  2. Family law. Voluntary resumption after a separation of full
\nmarital relations between spouses 3…………………….<\/p>\n
81.     The concept of reconciliation, the meaning of which has been noticed
\nhereinabove and as has been emanated from the basic source of Muslim law, as
\ndiscussed above, has got its acceptability in the modern litigations specially
\npertaining to the matrimonial disputes. The reconciliation has become an effective
\nand important tool and mechanism for resolution of disputes particularly in
\ndissolution of marriages.\n<\/p>\n
82.     In Hindu Marriage Act, which is enacted in 1995 has already contained such
\nprovisions of reconciliation in Section 23 (2) wherein a duty has been cast on the
\nCourt to make an endeavour for reconciliation between the parties at the very initial
\nstage. Provision of Section 23(2) is quoted as follows:\n<\/p>\n
        23. (2) Before proceeding to grant any relief under this Act, it shall be the
\nduty of the Court in the first instance, in every case where it is possible so to do
\nconsistently with the nature and circumstances of the case, to make every endeavour
\nto bring about a reconciliation between the parties;\n<\/p>\n
83.     Similarly, in The Family Courts Act, 1984, Section 9 provides that it is the
\nduty of the Family Court to make efforts for settlement and the same reads as under:\n<\/p>\n
                        9. Duty of Family Court to make efforts for settlement._(1)
\nin every suit or proceeding, endeavour shall be made by the Family Court in the
\nfirst instance, where it is possible to do so consistent with the nature and
\ncircumstances of the case, to assist and persuade the parties in arriving at a
\nsettlement in respect of the subject-matter of the suit or proceeding and for this
\npurpose a Family Court may, subject to any Rules made by the High Court follow
\nsuch procedure as it may deem fit.\n<\/p>\n
84.     In 2002 by amendment of the Code of Civil Procedure, 1908, Section 89 has
\nbeen incorporated providing  for settlement of the disputes, outside the Court by
\nadopting primarily four methods, namely, (a) arbitration; (b) conciliation; (c)
\njudicial settlement including settlement through Lok Adalat, or (d) mediation,
\nwhich are popularly coined as alternative dispute resolution(ADR) mechanism. So
\nit is evident that the process of reconciliation has to be given priority as well as
\nimportance in the present days. In view  of above, it is essential that a dissolution of
\nMuslim marriage by way of divorce or talaq must be based on reconciliation as
\nmandated by Quranic text followed by commentaries on the topic by the various
\neminent legal personalities.\n<\/p>\n
 (K)    Conclusion:\n<\/p>\n
85.     In consideration of what has been stated, observed and discussed, the
\nimpugned judgment and order being not in consonance with  law explained and
\nhighlighted above, deserves  interference  and the same is, accordingly, set aside
\nand quashed.\n<\/p>\n
86.     It is, consequently, held that the petitioner is not a Muslim divorcee of the
\nhusband\/respondent and she is entitled to get her maintenance in terms of Section
\n488 Cr. P. C and this Court does, accordingly, uphold the maintenance granted to
\nthe petitioner by the learned Magistrate by its initial order dated 24.6.1995.\n<\/p>\n
87.     It is further provided that order dated 10.12.2002 passed by this Court as
\nregards granting interim maintenance to respondent no. 2, daughter of the parties, is
\nhereby made absolute.\n<\/p>\n
88.     Liberty is also granted to petitioner no. 1 to approach the appropriate
\nForum\/Authority, if she desires further increase in her maintenance allowance, if so
\nadvised.\n<\/p>\n
89.     In the result, the revision petition is, accordingly, allowed.\n<\/p>\n
(L) Remarks:\n<\/p>\n
90.     Before parting with the judgment, it is necessary to put on record certain
\nobservations.\n<\/p>\n
91.     The learned Judicial Officers while quoting cited judgments and judicial
\nauthorities, shall extract the relevant paragraphs of the judgment referred to with
\nclear mention of the said paragraph\/paragraphs therein instead of quoting the Head
\nnotes of a particular judgment.  In the instant case, on perusal of the impugned
\njudgment and order, it appears that the learned Magistrate has quoted the Head
\nNotes only of the judgment referred to or relied upon. Be it noted that Head Notes
\nare not the ratio or operative part of the judgment. It is simply an editorial comment
\nand, accordingly,   attempt should be made to avoid quoting the Head Notes only.\n<\/p>\n
                                                                     Sd\/-\n<\/p>\n
                                                          (Dr. Aftab H. Saikia)
\n                                                                          Chief Justice
\nJammu:\n<\/p>\n
14 .10.2010
\nTilak, Secy.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
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. […]<\/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":[8,17],"tags":[],"class_list":["post-93305","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nMariyam Akhter & Anr vs Wazir Mohd on 14 October, 2010 - 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\/mariyam-akhter-anr-vs-wazir-mohd-on-14-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mariyam Akhter & Anr vs Wazir Mohd on 14 October, 2010 - 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