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2009 DIGILAW 192 (JK)

Showkat Ahmad Lone v. Mumtaza

2009-04-24

SUNIL HALI

body2009
1. Aggrieved by the order passed by the Judicial Magistrate, Sumbal, Sonawari in directing the petitioner to pay maintenance to the respondent present revision petition has been filed. 2. Application under Section 488 Cr.P.C came to be filed before the court below. It was contended by the applicant therein that she is a legally wedded wife of the petitioner and, as such, is entitled to receive maintenance from him. On the other hand the petitioner stated that he has divorced her on 25th of September, 2005. The divorce deed has been sent to the respondent by the registered post and the same also has been published in the newspaper `Aftab. In essence he states that he has divorced the respondent and is not liable under the Act to pay maintenance to her. 3. The trial court after recording evidence and hearing the parties has found that there has been no valid divorce between the parties and the non applicant-petitioner is liable to pay the maintenance to her. 4. I have heard learned counsel for the parties. Whether a divorce under the Muslim Law is valid without a proof of its having been made and can it be sustained merely on the ground that the stand is taken in the written statement that the marriage stands dissolved, is the issue involved in this petition. 5. In the present case the petitioner states that he has divorced his wife and the same has been communicated to her by a registered post on 25-09-2005. He has also published the same in the newspaper `Aftab. This according to the petitioner is sufficient to indicate that the respondent had the knowledge about the divorce. On the other hand the evidence which has come on record, as discussed by the trial court, is that delivery of talaq through registered post has not been received by the petitioner. This plea is supported by the statement of postman who has delivered this talaqnama to the respondent. He has stated that there is an endorsement on the cover that it cannot be delivered to the respondent as she was not available. Regarding the other contention that divorce was published in a local newspaper the respondent has stated that she has no knowledge about this publication in `Aftab. The other aspect which has come on record is that the petitioner had appeared in the court on 22nd October, 2005. Regarding the other contention that divorce was published in a local newspaper the respondent has stated that she has no knowledge about this publication in `Aftab. The other aspect which has come on record is that the petitioner had appeared in the court on 22nd October, 2005. He did not inform the court that he had divorced his wife. It is only on 27th February, 2006 that the petitioner revealed by filing objections that he had divorced the respondent. 6. Talaq under the Muslim Law has to be effective only if it is pronounced. The term pronounce means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate. Talaq may be oral or in writing. If Talaqnama is in writing then the same has to be communicated to the wife. It is essential that the wife must be aware about the said talaq nama. This is to inform her that after talaq she is entitled to maintenance for iddat period and can remarry. 7. The case set out by the petitioner is that the plea has been taken in the objections filed before the court below and the same stands communicate to the wife on the date she has received the copy of the written statement. In essence it is stated that the communication of the talaq being sent to the wife, shall deem to have been pronounced and the marriage dissolved. 8. It is not in dispute that under the Muslim Law marriage is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of the humanity that a higher degree of sanctity is attached to it. The correct law of talaq as ordained by Holy Quran is that the talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and wife by two arbiters one from wifes family and the other from husband. If the attempts failed talaq may be effected. So in order to effect the talaq it must be preceded by an attempt of reconciliation between husband and wife and by two arbiters one chosen by the wife and the other by the husband. 9. It is also to be noted that the respondent came to know of the divorce having been effected after the written statement was filed. So in order to effect the talaq it must be preceded by an attempt of reconciliation between husband and wife and by two arbiters one chosen by the wife and the other by the husband. 9. It is also to be noted that the respondent came to know of the divorce having been effected after the written statement was filed. Would the marriage come to an end or that question? 10. The divorce deed filed by the petitioner reveals that the respondent is living an adulterous life and despite many efforts having been made by him to desist from doing such acts the same have failed. It is only to restore the dimity and the honor of the family that he was impelled to execute this divorce deed. The allegations per se can become a ground for seeking divorce. The recourse left to the petitioner was to have proved this fact before the trial court by leading evidence on this count. He also had an option to prove the pleas taken by him in the written statement. 11. It transpires from the record that only defence taken by the petitioner was that his wife was living adulterous life and he had divorced her. The petitioner has during the course of the trial proved the divorce deed which was marked as EXPW1. The witness Bashir Ahmad Sofi has also deposed that the divorce deed was executed by the petitioner in his presence and was communicated to the respondent. The divorce deed reveals that the effort for reconciliation was made by the petitioner before it was executed but the same was not responded by the respondent. The petitioner has adduced evidence and proved the pronouncement of talaq on 25-09-2005. It can specifically be stated that the petitioner has taken this ground in his objections filed before the court and has consequently proved the same by leading evidence. The only question is that whether the respondent herein had the knowledge about the said pronouncement. There is no dispute that after the written statement was filed in February 2006 she acquired the knowledge that the divorce has been effected by the petitioner. The only question is that whether the respondent herein had the knowledge about the said pronouncement. There is no dispute that after the written statement was filed in February 2006 she acquired the knowledge that the divorce has been effected by the petitioner. This being the position it can safely be stated that the divorce has been effected and proved to have been pronounced by the petitioner and the respondent has acquired the knowledge of the same in February 2006 when the written statement was filed. 12. The trial court has completely overlooked this aspect while dealing with the matter. The trial court has while relying upon judgment of the Supreme Court allowed application of the respondent. The Apex Court while dealing with this question has said that if a plea of divorce is taken in the written statement the same is required to be proved by leading evidence on that count, if no evidence has been laid and it is merely an assertion in the written statement, in that eventuality the contention will fail. But once the divorce deed has been proved by the petitioner and its knowledge also is proved then there is no difficulty for the Court to come to the conclusion that the marriage stands dissolved. It is important to note that under section 488 Cr.P.C right to claim maintenance by a wife is only when the marriage is in subsistence. If the marriage is not in subsistence and a stand is taken in this respect the Court cannot escape from the liability of deciding the issue in the same proceedings. It will be unsafe to accept this argument that the factum of dissolution of marriage is required to be proved in civil proceedings. Since the issue is relevant for determination of controversy under section 488 Cr.P.C the Court is required to address itself to this question once it has been specifically pleaded and proved by evidence. I also place reliance on the judgment of the Supreme Court reported in AIR 2002 SC page 3551. The Apex Court has observed as under: "...We are also of the opinion that the talaq to be effective has to be pronounced. The term `pronounce means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate [See Chambers 201 Century Dictionary, New Edition, p.l030]. There is no proof of talaq having taken place on 11-7-1987. The Apex Court has observed as under: "...We are also of the opinion that the talaq to be effective has to be pronounced. The term `pronounce means to proclaim, to utter formally, to utter rhetorically, to declare to, utter, to articulate [See Chambers 201 Century Dictionary, New Edition, p.l030]. There is no proof of talaq having taken place on 11-7-1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife be delivering a copy of the written statement on 5-12-1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effecting talaq on the date of delivery of the copy of the written statement to the wife. The respondent No.2 ought to have adduced evidence and proved the pronouncement of talaq on 11-7-1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. 13. In these circumstances, I allow this revision petition and quash the impugned order.