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2008 DIGILAW 307 (UTT)

RESHMA v. RASHID

2008-07-17

DHARAM VEER, PRAFULLA C.PANT

body2008
JUDGMENT Hon’ble Prafulla C. Pant, J. (Oral): This appeal, preferred under Section 19 of the Family Courts Act, 1984 is directed against the judgment and orders dated 30.11.2006, passed by the Additional Judge, Family court, Roorkee, in Case No. 140 of 2004, whereby the petitioner/appellant’s petition, moved under Section 3, read with Section 4 of The Muslim Women (Protection of Rights on Divorce) Act, 1986 is dismissed. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief fact of the case are that the petitioner/appellant Reshma got married to respondent No.1 Rashid S/o Mursalin on 21.05.2001, according to the Muslim rites. The allegation of the petitioner in her petition is that gifts and dowry were given in the marriage by the father of the petitioner according to his economic status. However, the respondents were not happy with the same. It is further alleged that on 20th June 2002, they asked the petition to bring Rs. 20,000/- from her parents, which were arranged and given to the respondents. Thereafter, the demand was increased for Rs. 50,000/- and the respondents told the petitioner that if the demand is not met by 10th September 2004, the respondent No. 1 would divorce her. Petitioner’s case is that when the demand of Rs. 50,000/- was not fulfilled and the respondent No. 2 Rashid pronounced ‘I TALAK YOU’ (thrice) to divorce the petitioner not only in her presence, but in the presence of her father, brother, neighbour Sonu and other persons. It is further pleaded by the petitioner/appellant that on 10-09-2004, when she was divorced by her husband, she became entitled to mehar as well as for the maintenance to the tune of Rs. 15,000/- for the period of iddat, and also for return of the articles given in the dowry valued Rs. 65,000/-. Hence, this petition was filed for mehar, amounting to Rs. 551/-; maintenance for the period of iddat, and also for return of the articles of dowry. 4. The respondent No.1 contested the petition and filed his written statement. He admitted having got married to the petitioner on 21-05-2001, according to the Muslim rites. However, rest of the contents of the petition were denied by the contesting respondent (husband). In the additional pleas it is stated that there was no demand of dowry from the side of the respondents. He admitted having got married to the petitioner on 21-05-2001, according to the Muslim rites. However, rest of the contents of the petition were denied by the contesting respondent (husband). In the additional pleas it is stated that there was no demand of dowry from the side of the respondents. It is alleged by the respondent No. 1 that it was the petitioner who committed cruelty against the answering respondent. Denying that any demand of Rs. 20,000/- or Rs. 50,000/- was made by him or his parents, it is further stated that respondent No. 1 did not divorce the petitioner and is ready to discharge his duties as her husband. 5. In the above circumstances, and on the basis of the pleadings, the trial court framed following issues on 21.02.2005: i) Whether, the petitioner is still wife of Rashid? ii) Whether, the petitioner is entitled to mehar amount and maintenance and articles from the respondents, claimed by her? iii) Whether, the respondents made demand of dowry, as alleged? iv) To what relief, if any, the petitioner is entitled? The trial court probably lost the sight of order dated 21.02.2005, and framed following two issues on 03.11.2006: i) Whether, the alleged divorce between the parties is lawful, and has the petitioner completed the period of iddat? ii) Whether, the divorce between the parties was entered in writing before the witnesses, and signed by them? Again on 13.11.2006, an additional issue is framed by the Additional Judge, Family Court, as under: iii) Whether, the divorce between the parties was in the form of Talak-ul-bidaat? Thereafter, the trial court (Additional Judge, Family Court, Roorkee) directed the parties to adduce the evidence on their behalf. On behalf of the petitioner, she got herself examined as P.W.1 Reshma, and also got examined P.W.2 Raes; P.W.3 Sabir Ali; P.W.4 Mohd. Haseen; P.W.5 Shakela, and P.W.6 Sagir. On behalf of the respondents no one was got examined. Though, the evidence adduced by the petitioner remained uncontroverted, still the trial court after hearing the parties, dismissed the petition for the reasons that the divorce is not preceded by pre-conference for settlement and that the divorce is not in the written form. 6. Haseen; P.W.5 Shakela, and P.W.6 Sagir. On behalf of the respondents no one was got examined. Though, the evidence adduced by the petitioner remained uncontroverted, still the trial court after hearing the parties, dismissed the petition for the reasons that the divorce is not preceded by pre-conference for settlement and that the divorce is not in the written form. 6. Having heard learned counsel for the parties and after going through the record, we find that the trial court has committed grave error of law in dismissing the petitioner filed by the petitioner (present appellant) on the above grounds. Before further discussion, we think it proper to mention here what is Talak-ul-bidaat, under the Muslim law. Ameer Ali in his commentary on Mahommedan Law defines Talak-ul-bidaat, as under: “In the Talak-ul-bidaat, the husband may pronounce the three formulae at one time, whether the wife is in a state of tahir or not. The separation then taken effect definitely after the woman has fulfilled here iddat or period of probation.” The significant feature of Talak-ul-bidaat is that it is irrevocable. Ordinarily, Talak-ul-bidaat is pronounced in triple form. By saying “I divorce thee, I divorce thee, I divorce thee.” The triple pronouncement can be made either in a single ‘tuhr’ at one time or at intervals, but after the same is pronounced for three times, it becomes irrevocable. In other words, talak-ul-bidaat can be revoked only before the third pronouncement, and not thereafter. 7. The trial court has erred in law in observing that since there is no pre-conference for settlement (reconciliation) before the divorce is pronounced, as such, the triple pronouncement of divorce cannot be said to be valid. The wife who was divorced by the husband cannot be faulted for it. It is the husband who has allegedly given divorce to his wife. 8. The trial court has further erred in law in not believing the witnesses examined on behalf of the petitioner before whom triple ‘talak’ was pronounced. The respondent No. 1 Rashid (husband) has not dared to enter in the witness box even to say that he did not divorce his wife or that he did not pronounce triple talak in the form of talab-ul-bidaat, as alleged by the petitioner. The respondent No. 1 Rashid (husband) has not dared to enter in the witness box even to say that he did not divorce his wife or that he did not pronounce triple talak in the form of talab-ul-bidaat, as alleged by the petitioner. The third error committed by the trial court is that it has observed that under Muslim law wife has no right to give oral divorce and there is no written divorce between the parties. This observation is uncalled for, for the reason that the wife has not sought divorce, nor has she alleged that she has given ‘talak’ (divorce). What she has pleaded is that her husband has given her divorce by pronouncing ‘Talak’ thrice before the witnesses. 9. For the reasons as discussed above, and on the basis of the evidence adduced by witnesses produced on behalf of the petitioner, as a first appellate court, after re-assessing the evidence, we decide all the issues in favour of the petitioner/appellant, and against the respondent. 10. Under Section 3 read with Section 4 of the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman is entitled to mehar and the other properties apart from the maintenance for the period of iddat. There is no evidence from the side of the respondents to controvert what has been claimed by the petitioner/appellant and proved by adducing evidence that Rs. 551/- was the amount of mehar, the articles given in the dowry to which she is entitled to get back and the maintenance for the period of iddat, amount to Rs. 15,000/-. 11. In the above circumstances and for the reasons discussed above, this appeal is allowed. The judgment and order dated 30.11.2006, passed by Additional Judge, Family Court, Roorkee, in Case no. 140 of 2004, is set aside. The petition filed by Smt. Reshma before the Additional Judge, Family Court, Roorkee, is allowed, as prayed in the petition against the respondents. The respondent No. 1 shall pay Rs. 551/- on account of mehar, Rs. 15,000/- as maintenance for the period of iddat, and the respondents shall return the articles given at the time of marriage to the petitioner, mentioned in List (Paper No. 9/2) in the lower court’s record. However, costs easy.