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2008 DIGILAW 381 (JK)

Sharief Ahmed v. Shabnam Begum

2008-10-13

SUNIL HALI

body2008
1. The case is unusual because of the fact that a wife has leveled charge of rape against her husband. The facts of this case are that the respondent-wife left the company of the petitioner-husband somewhere in July 2005 and started living with her parents at Basholi. Because of matrimonial discord, the respondent filed a criminal complaint before the learned Chief Judicial Magistrate, Kathua on 27th August 2005 leveling allegations of cruelty and commission of rape. On the complaint being presented before the Magistrate, he referred the complaint for enquiry in terms of Section 202 Cr.P.C. to SSP Kathua with a direction to enquire into the matter. On the enquiry having been conducted by the Police, the report alongwith statements of witnesses was sent to the learned Chief Judicial Magistrate, Kathua, which revealed that the case under Section 376 RPC was made out against the petitioner. The case was referred by the Chief Judicial Magistrate to the learned Sessions Judge, Kathua. The learned Sessions Judge after perusing the record and hearing the parties framed the charges under Sections 498-A/376 RPC. 2. Perusal of the charge sheet reveals that the petitioner had executed a talaqnama on 23rd September 2004 whereby the marriage between the parties was dissolved. That the respondent did not have the knowledge about talaqnama till she was delivered copy of Talaqnama by some relative on 14.8.2005. It is alleged by the respondent that even though petitioner was aware of the fact that he had divorced his wife, he continued to live with her and had sexual intercourse during this period. The charges further reveal that the petitioner was aware of the fact that he had divorced his wife but despite that he had sexual intercourse with her till she came to know about the same on 14.8.2005. 3. The Sessions Judge framed the charges against the petitioner stating therein that he had sexual intercourse with his wife when he knew that he had divorced her on 24.09.2004. The admitted fact is that after the respondent came to know about the divorce, the petitioner did not have any sexual intercourse with her. Being aggrieved of this order, the present petition has been filed seeking quashing of proceedings before the learned Sessions Judge. 4. I have heard the learned counsel for the parties and perused the record. 5. The admitted fact is that after the respondent came to know about the divorce, the petitioner did not have any sexual intercourse with her. Being aggrieved of this order, the present petition has been filed seeking quashing of proceedings before the learned Sessions Judge. 4. I have heard the learned counsel for the parties and perused the record. 5. The short question for consideration is whether mere announcement or execution of a talaqnama is sufficient to cause dissolution of marriage on the date it was executed or spoken or from the date the wife acquires the knowledge of the same. Talaq may be oral or in writing. A talaq may be effected (1) orally or (2) by a written document called talaqnama. No particular form of words is prescribed for effecting a talaq. If the words expressed are well understood as implying divorce, no proof of intention is required. If the words are ambiguous, the intention must be proved. A talaq to be effected has to be pronounced. The word divorce must indicate the intention to dissolve a marriage, as already stated hereinabove. The term pronounce means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate. Mere mentioning in a document could not tantamount to dissolution unless it is pronounced. The most essential feature of this is that the wife must have the knowledge of the divorce. It is not important that the divorce may be announced or pronounced in presence of the wife, she should only have the knowledge about the same. Prouncement of talaq materially alters the status of the wife. Her rights and liabilities flow from the nature of Talaq. There is a question of iddat. Her right to residence, maintenance and mehar. All these rights she has to exercise only after she acquires the knowledge of divorce. If she is not communicated or does not have the knowledge of divorce, she cannot exercise these rights. So linked with the question of her rights is the issue of communication of talaq to her. It is only after the knowledge is acquired that the dissolution of marriage comes to an end. So the date of dissolution of marriage in Muslim Law would be the date when the wife acquires the knowledge. In law marriage continues to exist with all the benefits of marital life. 6. It is only after the knowledge is acquired that the dissolution of marriage comes to an end. So the date of dissolution of marriage in Muslim Law would be the date when the wife acquires the knowledge. In law marriage continues to exist with all the benefits of marital life. 6. In the present case, it is admitted that the Talaqnama was executed on 04.09.2004 and the respondent acquired the knowledge on 14.08.2005. During this period, the petitioner and respondent had been living together as husband and wife and it is not denied that they are enjoying conjugal rights during this period. It is also not in dispute that the respondent has been living with the petitioner and was consenting party to the sexual intercourse. Even if the petitioner had the knowledge that he had divorced his wife and despite this he continued to enjoy the conjugal rights with her consent does not constitute rape in the eyes of law. Reconciliation of the parties is an important aspect in any religion and more particularly in Islam. If the respondent had executed a talaqnama and continued to live with his wife, it can be safely said that he was not seriously pursuing the talaqnama. However, I would not comment on this question. But admitted fact in law is that the marriage came to be dissolved only on the date when the wife acquired the knowledge of talaq executed by her husband. It is admitted that after the wife came to know about the divorce the petitioner did not commit any sexual intercourse with her. 7. In view of the aforementioned legal aspects, since the marriage was not dissolved in law, therefore, no offence has been committed by the petitioner under Section 375 RPC. For facility of reference section 375 is reproduced as under:- 375. 7. In view of the aforementioned legal aspects, since the marriage was not dissolved in law, therefore, no offence has been committed by the petitioner under Section 375 RPC. For facility of reference section 375 is reproduced as under:- 375. A man is said to committed rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- Firstly- Against her will; Secondly- Without her consent; Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt; Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; Fifthly- With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent; Sixthly- With or without her consent, when she is under sixteen years of age. 8. A plain reading of the Section would reveal that a man is supposed to have committed rape when he knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. In order to constitute an offence under this Section, the husband must be aware that she is not his wife and that she gives the consent only because she believes that she is legally married to him. 9. In the present case, the marriage between the parties is not denied and it is also not denied that the marriage was not dissolved till August 2005 when she acquired knowledge about the same. This Section is not attracted in the present case. Admittedly during the period the petitioner had been living with his wife, the marriage was subsisting and it cannot be said that the petitioner has committed rape. 10. The other ground taken by the petitioner is that the Magistrate had referred the case to SSP Kathua for inquiry under Section 202 RPC. Admittedly during the period the petitioner had been living with his wife, the marriage was subsisting and it cannot be said that the petitioner has committed rape. 10. The other ground taken by the petitioner is that the Magistrate had referred the case to SSP Kathua for inquiry under Section 202 RPC. It is averred that the Magistrate could have referred the case to SSP for inquiry only after if the Magistrate has taken cognizance in the matter but in the present case, the Magistrate has not taken any cognizance. There is force in the argument of the petitioner, however, I do not intend to devolve upon this issue. 11. In view of the above, I do not find any reason to allow the proceedings to continue before the trial court and the same shall stand quashed. 12. Disposed of along with Cr.M.P (s) if any.