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2022 DIGILAW 375 (MAD)

S. J. Syed Ziauddin v. Hasina Banu

2022-02-09

G.R.SWAMINATHAN

body2022
JUDGMENT : The plaintiff in O.S.No.1344 of 2000 on the file of the III Additional District Munsif, Thiruchirappalli, is the appellant in this second appeal. 2. The appellant filed the said suit seeking the relief of declaration that his pronouncement of talaq on 01.05.2000, 07.06.2000 and 06.07.2000 had terminated his marriage with the defendant. The defendant filed written statement controverting the plaint averments. Based on the rival pleadings, the learned trial Munsif framed the necessary issues. The plaintiff examined himself as P.W.1 and one Haniba was examined as P.W.2. Ex.A.1 to Ex.A.15 were marked. The defendant examined herself as D.W.1. No document was marked on her side. Considering the evidence on record and after hearing both the parties, the learned trial Munsif by judgment and decree dated 08.02.2007 decreed the suit as prayed for. 3. Aggrieved by the same, the defendant filed A.S. No.237 of 2007 on the file of the Principal District Judge, Thiruchirappalli. The first appellate Court by the impugned judgment and decree dated 29.07.2009 reversed the decision of the trial Court, allowed the appeal and dismissed the suit. Aggrieved by the same, this second appeal came to be filed. 4. This second appeal was admitted on 30.06.2010 on the following substantial questions of law:- “1. Whether the first appellate Court is right in not considering that the long separation by the defendant/wife from the plaintiff/husband without any reason is a sufficient cause for pronouncing talaq by the plaintiff? 2. Whether the first appellate Court was right in expecting reasons for pronouncing talaq? 3. Whether the demand by the respondent/wife who abandoned the handicapped unmarried sister and aged mother is not a just cause, as held by the Apex Court, for pronouncing talaq after four years of separation? ” 5. The respondent was served and she entered appearance through counsel. When the matter was taken up on 07.02.2022, there was no appearance on the side of the respondent. While filing Vakalath, the counsel had given his mobile phone number and the Court Officer made a call to the said number. There was no fruitful response, though someone attended the call. The appeal was directed to be called today (09.02.2022). This morning, when the appeal was taken up, there was no representation again. Hence, the respondent was set ex-parte. The case was passed over and then it was taken up for disposal. 6. There was no fruitful response, though someone attended the call. The appeal was directed to be called today (09.02.2022). This morning, when the appeal was taken up, there was no representation again. Hence, the respondent was set ex-parte. The case was passed over and then it was taken up for disposal. 6. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellant and set aside the impugned judgment and decree passed by the first appellate Court and restore the decision of the trial Court. 7. Since there was no response on the side of the respondent, I undertook an independent scrutiny of the pleadings, evidence on record and also the judgments passed by the Courts below. 8. Let me address the legal issues first. No doubt, Muslim marriage is one of contract. The husband has the power to terminate the same by pronouncing talaq. Though in text books, it has been noted that a Muslim husband can divorce his wife by his unilateral action and without the intervention of the Court, its rigour and harshness have been mitigated by the Courts over the years. From Shamim Ara Vs. State of U.P. ( (2002) 7 SCC 518 ), one can infer the proposition that there must be reasons substantiated in justification of talaq and that there must be plea and proof that efforts at reconciliation preceded the talaq. The Hon'ble Division Bench of the Madras High Court in A.S.Parveen Akthar V. Union of India ( (2003) 1 LW 370 ), following the earlier decisions of the Hon'ble Supreme Court and other High Courts held that a Muslim husband cannot divorce his wife at his whim and caprice and that the divorce must be for a reasonable cause and must be preceded by attempts by arbitrators nominated by the families of the parties and it is only when such attempts failed, divorce can be granted. 9. One can therefore safely conclude that the justification for pronouncing talaq can definitely be gone into by the Court concerned. In other words, the reasons set out by the husband can be probed and tested on the anvil of proof. The husband cannot claim any immunity from examination. The husband must prove that he had good reasons for pronouncing talaq. One can therefore safely conclude that the justification for pronouncing talaq can definitely be gone into by the Court concerned. In other words, the reasons set out by the husband can be probed and tested on the anvil of proof. The husband cannot claim any immunity from examination. The husband must prove that he had good reasons for pronouncing talaq. What will be good reasons cannot be exhaustively catalogued. It has to be determined with reference to the facts of the particular case. The Civil Law standard of proof will be applicable. It is open to the wife to file a suit for declaration that the talaq pronounced by the husband is not valid. Likewise, the husband also, as in this case apply for declaration that the marriage stood dissolved on account of his having pronounced talaq. But then, in either case the burden will be on the husband alone to satisfy the Court that the pronouncement of talaq is in accord with law. 10. In Hindu Marriage Act, Indian Divorce Act or even under the Special Marriage Act, the grounds have been statutorily set out. That will not be the case when it comes to Islamic divorce. 11. There is no dispute that the marriage between the parties took place on 02.04.1989 at Thiruchirappalli as per Islamic rites and customs. Through the wedlock, a daughter was born on 23.07.1990. The relationship between the parties came under strain. The defendant herself admitted in her cross examination that she lodged a police complaint against her husband and that she took back her articles in the police station. The specific case of the plaintiff is that he pronounced talaq on 30.01.1997 in the presence of witnesses and that he intimated the same to the defendant on the same day. According to him, it was acknowledged by the defendant on 06.03.1997. But these documents have not been marked in evidence. Therefore, I cannot take note of the same. 12. The plaintiff had pleaded that the first talaq was pronounced on 01.05.2000 in the presence of witnesses and that he sent the mahar amount of Rs.6,601/- and also the maintenance amount for the Iddat period vide communication dated 02.05.2000. The said communication has been marked as Ex.A.7. The defendant after receiving the same sent her reply dated 09.05.2000. The reply was marked as Ex.A.8. The said communication has been marked as Ex.A.7. The defendant after receiving the same sent her reply dated 09.05.2000. The reply was marked as Ex.A.8. After a lapse of one month, the plaintiff pronounced the second talaq on 07.06.2000 and sent the same by registered post. The communication as well as the acknowledgment have been marked as Ex.A.9 and Ex.A.10. The third and final talaq was pronounced on 06.07.2000. It has been marked as Ex.A.12 and the acknowledgment has been marked as Ex.A.13. The defendant also sent a reply dated 11.07.2000. The defendant's reply has been marked as Ex.A.15. These three communications, namely, Ex.A.7, Ex.A.9 and Ex.A.12 clearly establish that the plaintiff pronounced the talaq on separate occasions. Thus, the first ingredient of divorce has been fulfilled. 13. The first appellate Court rightly held that irretrievable breakdown of marriage cannot be a ground for divorce. Since it noted that the plaintiff/husband had not assigned any reason for pronouncing talaq, it reversed the decision of the trial Court. While the understanding of the first appellate Court as regards the legal position was right, it went wrong while applying it to the facts of the case. Even in the first communication dated 02.05.2000 (Ex.A.7), the plaintiff had mentioned that the marital relationship had already suffered a break down and that the wife had taken back her belongings as early as on 25.01.1997 and 04.03.1997 through mediation held at the All Women police station, Trichy. Lodging of the police complaint and taking back the articles indicates her intention to terminate the marriage. No wife who wants the marriage to subsist, will demand return of articles and that too under the aegis of the police. The fact that the wife had done so in this case clearly demonstrated her intention to stay away from the marital relationship. There is one another aspect. The appellant's sister is physically challenged. While the appellant wanted to support her, the respondent insisted that she must not be a part of the household. Cumulatively taken, these circumstances do constitute sufficient reasons for the husband to pronounce talaq on the respondent. 14. In this case, the husband had categorically stated that he had appointed two mediators to resolve the issue. Though an offer was made to the respondent, she failed to respond. One of the mediators, namely, Haniba was examined as P.W.2. Cumulatively taken, these circumstances do constitute sufficient reasons for the husband to pronounce talaq on the respondent. 14. In this case, the husband had categorically stated that he had appointed two mediators to resolve the issue. Though an offer was made to the respondent, she failed to respond. One of the mediators, namely, Haniba was examined as P.W.2. I therefore arrive at the following irresistible conclusions:- (a) The plaintiff had pronounced talaq thrice on three separate occasions and also intimated the same to the respondent in writing through registered post. (b) He had reasonable cause for pronouncing the same. (c) He had earlier appointed mediators to resolve the issue before he took recourse to the pronouncement of talaq. All the procedures set out in the Islamic Law were adhered to and complied with by the appellant. 15. The trial Court rightly granted the relief sought for. The first appellate Court misdirected itself on facts and erroneously reversed the decision of the trial Court. While I answer the second substantial question of law against the appellant, I answer 1st and 3rd substantial questions of law in favour of the appellant. 16. The impugned judgment and decree passed by the first appellate Court is set aside and the decision of the trial Court is restored. This second appeal is allowed. No costs.