Smt. Munni Devi vs Preetam Singh Goyal on 12 April, 2017

-( 1 )- CRR. No. 728/2014

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Criminal Revision No. 728/2014
Smt. Munni Devi Another
Versus
Pritam Singh Goyal
————————————————————————————-
Shri P.S. Bhadoriya, Advocate for the applicants.
Ms. Neha Malaliya, Advocate for the respondent.
————————————————————————————-
ORDER

(12.04.2017)
This criminal revision is directed against the order
dated 11.07.2014 passed in Criminal MJC No. 62/2014 by
Family Court, District Bhind (M.P.) whereby the
application preferred by applicant under section 125 of
CrPC has been dismissed.

2- The facts as presented by the applicants are that
the applicant No.1 solemnized marriage with respondent
in the month of April, 2008 by following Hindu rituals,
consequently, the applicants started residing with the
respondent, however, after some period the respondent
developed hostility towards the applicants leading to
material discord and also deliberate failure of respondent
to maintain the present applicants. For the purpose of
adjudication of present application, it is pertinent to
highlight certain factual aspect of the matter which will
have bearing on the outcome of the present case.
3- According to the applicant No.1, she was married to
one Hanif Khan for some period of time. Although the
marriage ended on 22.05.2010, when Hanif Khan
divorced the applicant. Subsequently, the applicant No.1
solemnized marriage with the respondent. Although, the

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pleading with respect to divorce by Hanif Khan was
modified and it was indicated that the applicant divorced
Hanif Khan by pronouncing triple “Talak” directed to
him. Therefore, the responsibility to maintain the
applicants rests on respondent with whom marriage has
been consummated.

4- The application under section 125 of Cr.P.C was
preferred and the respondent was invited to file reply by
the Family Court. The respondent moved an application
for dismissal of entire proceedings drawn at the instance,
on the ground that the applicant No.1 is not his wife to
have locus to move application under section 125 of
Cr.P.C. This application was accepted by the court below
on the ground that the narration of fact made in the
application are enough to conclude that the applicant has
not validly dissolved her first marriage, accordingly, the
subsequent marriage will be nullity and will render the
application under section 125 as not maintainable. This
finding is challenged in the present criminal revision.
5- Learned counsel for the applicant in sum and
substance contended that the Family Court did not
consider the factum of consummation of marriage which
had already taken place between the applicant No.1 and
respondent and the dissolution of first marriage by the
applicant No.1 was in terms of muslim law and was
validly done, therefore, the dismissal of application is
improper. Apart from it, no other ground has been
canvassed.

6- Learned counsel for the respondent supported the
reasons given in the impugned order.
7- I have considered the rival contention of the parties
and have perused the record.

8- The respondent has invited this court to examine
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broadly two prepositions. Firstly, whether a Muslim
woman can divorce her husband by pronouncing triple
“Talak”?. Secondly, whether the consummation of
marriage alone is declaring the marriage as valid?
9- Now this court will deal with the first preposition,
however, before recording conclusion it will be
appropriate to refer to the judicial pronouncement of
Hon’ble Supreme Court in the case of Mst. Zohara
Khatoon Vs. Mohd. Ibrahim, 1981 (2) SCC 509,
wherein the following has been observed :

21. After the Act of 1939, a wife thus had a
statutory right to obtain divorce from the
husband through the Court on proof of the
grounds mentioned in the Act. The Act
provided for the wife an independent remedy
which could be resorted to by her without
being subjected to a pronouncement of divorce
by the husband. It is, therefore, in the
background of this Act that the words ‘has
obtained a divorce from her husband’ in clause

(b) of the Explanation have to be constructed.
Thus the High Court in considering the effect
of these words seems to have overlooked the
dominant object of the statutory remedy that
was made available to the wife under the Act of
1939 by which the wife could get a decree for
dissolution of marriage on the grounds
mentioned in the 1939 Act by petitioning the
civil court without any overt act on the part of
the husband in divorcing her. The High Court
also failed to consider the legal consequences
flowing from The decree passed by the court
dissolving the marriage, viz., a legal divorce
under the Mahomedan law.

22. In these circumstances we are therefore,
satisfied that the interpretation put by the High
Court on the second limb of clause (b) is not
correct. This seems to be borne out from the
provisions of Mahomedan law itself. It would
appear that under the Mahomedan law there
are three distinct modes in which a muslim
marriage can be dissolved and the relationship
of the husband and the wife terminated so as to
result in an irrevocable divorce.

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(1) Where the husband unilaterally gives a
divorce according to any of the forms approved
by the Mahomedan law, viz, Talaq ahsan which
consiss of a single pronouncement of divorce
during tuhar (Period between menstruations)
followed by abstinence from sexual intercourse
for the period of iddat; or Talak hasan which
consists of three pronouncement made during
the successive tuhrs, no intercourse taking
place between three tuhrs; and lastly Talak-ul-

bidaat or talalk-i- badai which consists of three
pronouncements made during a single tuhr
either in one sentence or in three sentences
signifying a clear intention to divorce the wife,
for instance, the husband saying ‘I divorce thee
irrevocably’ or ‘I divorce thee, I divorce thee, I
divorce thee’. The third form referred to above
is however not recognised by the Shiah law. In
the instant case, we are concerned with the
appellant who appears to be a Sunni and
governed by the Hanafi law (vide Mulla’s
Principles of Mahomedan Law, Sec. 311, p.

297).

A divorce or talaq may be given orally or in
writing and it becomes irrevocable if the period
of iddat is observed though it is not necessary
that the woman divorced should come to know
of the fact that she has been divorced by her
husband.

(2) By an agreement between the husband and
the wife whereby a wife obtains divorce by
relinquishing either her entire or part of the
dower. This mode of divorce is called ‘khula’ or
Mubarat. This form of divorce is initiated by
the wife and comes into existence if the
husband gives consent to the agreement and
releases her from the marriage tie. Where,
however, both parties agree and desire a
separation resulting in a divorce, it is called
mubarat. The gist of these mode is that it
comes into existence with the consent of both
the parties particularly the husband because
without his consent this mode of divorce would
be incapable of being enforced. A divorce may
also come into existence by virtue of an
agreement either before or after the marriage
by which it is provided that the wife should be
at liberty to divorce herself in specified

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contingencies which are of a reasonable nature
and which again are agreed to be the husband.
In such a case the wife can repudiate herself in
the exercise of the power and the divorce
would be deemed to have been pronounced by
the husband. This mode of divorce is called
‘Tawfeez’ (vide Mulla’s Mohmedan Law, Sec.

314. p. 300).

(3) By obtaining a decree from a civil court for
dissolution of marriage under Section 2 of the
Act of 1939 which also amounts to a divorce
(under the law) obtained by the wife. For the
purpose of maintenance, this mode is governed
not by clause (b) but by clause (c) of sub-
section (3) of Section 127 of the 1973 Code;
whereas the divorce given under modes (1) and
(2) would be covered by clause (b) of sub-
section (3) of Section 127 .

23. These are the three distinct modes in
which a dissolution of marriage can be brought
about. It is, therefore, manifest that clause (b)
Explanation to Section 125 (1) envisages all the
three modes, whether a wife is divorced
unilaterally by the husband or where she
obtains divorce under mode numbers 2 and 3,
she continues to be a wife for the purpose of
getting maintenance under Section 125 of the
1973 Code. In these circumstance the High
Court was not at all justified in taking the two
separate clauses ‘who has been divorced’ and
‘has obtained a divorce from her husband’
conjunctively so as to indicate a divorce
proceeding from the husband and the husband
alone and in not treating a dissolution of
marriage under the 1939 Act as a legal divorce.
We might like to mention here that the 1973
Code has by extending the definition of wife,
not excluded the various modes of divorce but
has merely abrogated that part of the
Mahomedan law under which the wife ceased
to get maintenance if the conjugal relationship
of the husband and wife came to an end.
Nevertheless, the personal law is applied fully
and kept alive by clause (b) of sub-section (3) of
Section 127 which may be extracted thus:

(b) the woman has been divorced by her
husband and that she has received, whether
before or after the date of the said order, the

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whole of the sum which, under any customary
or personal law applicable to the parties, was
pay able on such divorce, cancel such order,-

(i) in the case where such sum was paid
before such order, from the date on which
such order was made,

(ii) in any other case, from the date of
expiry of the period, if any, for which
maintenance has been actually paid by
the husband to the woman.”

10- The reproduced portion of the judgment makes it
clear that the dissolution of marriage at the instance of
Muslim wife can only be in terms of section 2 of
dissolution of Muslim Marriage Act, 1939, and therefore,
the only conclusion which can be recorded with respect
to his preposition is that the Muslim wife cannot dissolve
marriage by pronouncing triple “Talak”. It is now well
settled that the grounds prescribed by the several statute
for dissolution of marriage are not inclusive provision
and new grounds cannot be added which are otherwise
non-existent. This observation by this court finds support
from the judgment of Hon’ble Supreme Court in the case
of Reynold Rajamani Another Vs. Union of India
Another, 1982 (2) SCC 474, in which it was held:

4. It cannot be denied that society is generally
interested in maintaining the marriage bond
and preserving the matrimonial state with a
view to protecting societal stability, the family
home and the proper growth and happiness of
children of the marriage. Legislation for the
purpose of dissolving the marriage constitutes
a departure from that primary principle, and
the Legislature is extremely, circumspect in
setting forth the grounds on which a marriage
may be dissolved. The-history of all
matrimonial legislation will show that at the
outset conservative attitudes influenced the
grounds on which separation or divorce could
be granted. Over the decades, a more liberal

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attitude has been adopted, fostered by a
recognition of the need for the individual
happiness of the adult parties directly
involved. But although the grounds for
divorce have been liberalised, they
nevertheless continue to form an exception to
the general principle favouring the
continution of the marital tie. In our opinion,
when a legislative provision specifies the
grounds on which divorce may be granted
they constitute the only conditions on which
the court has jurisdiction to grant divorce. If
grounds need to be added to those already
specifically set forth in the legislation, that is
the business of the Legislature and not of the
courts. It is another matter that in construing
the language in which the grounds are
incorporated the courts should give a liberal
construction to it. Indeed, we think that the
courts must give the fullest amplitude of
meaning to such a provision. But it must be
meaning which the language of the section is
capable of holding. It cannot’ be extended by
adding new grounds not enumerated in the
section.

5. When therefore Section 10 of the Indian
Divorce Act specifically sets forth the grounds
on which a marriage may be dissolved,
additional grounds cannot be included by the
judicial construction of some other section
unless that section plainly intends so. That, to
our mind, Section 7 does not. We may point
out that in M. Barnard v. G.H. Barnard the
Calcutta High
Court repelled a similar
contention and held that Section 7 could not
be construed so as to “import into Indian
Divorce Jurisprudence any fresh ground for
relief other than those set forth in Section I0”
and that “the only grounds on which a
marriage may be dissolved are those set forth
in Secttion 10 of the Act…”. The Punjab High
Court in Miss Shireen Mall v. John James
Taylor
has also taken the view that the
grounds set forth in Section 10 of the Indian
Divorce Act cannot be enlarged by reference
to Section 7 of the Act. So also has a Special
Bench of the Madras High Court in T.M.
Bashiam v. M. Victor
and a Single Judge of
that Court in A. George Cornelius v. Elizabeth

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Dopti Samadanam.

11- The answer to first preposition spelt out above
leads this court to now deal with the second preposition
which is also of some significance in the context of the
matter. The Hon’ble Supreme Court in the case of Savitri
Pandey Vs. Prem Chandra Pandey, 2002 (2) SCC 73,
has recorded the following with respect to consummation
of marriage to confer validity:

There is another aspect of the matter which
disentitles the appellant from seeking the
relief of divorce on the ground of desertion
in this case. As desertion in matrimonial
cases means the withdrawal of one party
from a state of things, i.e. a marital status of
the party, no party to the marriage can be
permitted to allege desertion unless he or
she admits that after the formal ceremonies
of the marriage, the parties had recognised
and discharged the common obligation of the
married life which essentially requires the
cohabitation between the parties for the
purpose of consummating the marriage.
Cohabitation by the parties is an essential of
a valid marriage as the object of the
marriage is to further the perpetuation of the
race by permitting lawful indulgence in
passions for procreation of children. In other
words, there can be no desertion without
previous cohabitation by the parties. The
basis for this theory is built upon the
recognised position of law in matrimonial
matters that no-one can desert who does not
actively or wilfully bring to an end the
existing state of cohabitation. However, such
a rule is subject to just exceptions which may
be found in a case on the ground of mental
or physical incapacity or other peculiar
circumstances of the case. However, the
party seeking divorce on the ground of
desertion is required to show that he or she
was not taking the advantage of his or her
own wrong. In the instant case the appellant
herself pleaded that there had not been
cohabitation between the parties after the
marriage. She neither assigned any reason

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nor attributed the non-resumption of
cohabitation to the respondent. From the
pleadings and evidence led in the case, it is
apparent that the appellant did not permit
the respondent to have cohabitation for
consummating the marriage. In the absence
of cohabitation between the parties, a
particular state of matrimonial position was
never permitted by the appellant to come
into existence. In the present case, in the
absence of cohabitation and consummation
of marriage, the appellant was disentitled to
claim divorce on the ground of desertion.

12- In the context of present case and in order to
answer the contention of the applicants, it can safely be
observed that consummation of marriage undoubtedly
one of the criteria to decide the validity of marriage.
However, by no stretch of imagination, it cannot be
concluded that the same is the only criteria as the
statutory provisions relevant to the present case via-a-viz
the alleged marriage between the applicant No.1 and
respondent contained in Hindu Marriage Act, 1955, is
also to be complied in letter and spirit. Whereas in the
present case there is clear violation of section 5 (1) of the
Hindu Marriage Act,1955, therefore, this preposition can
be answered by observing that consummation of
marriage is relevant, however, is not a sole criteria to
determine the validity of marriage.
13- On cumulative consideration of the facts of this
case and legal preposition narrated above no indulgence
can be shown in this case in favor of the applicant as the
court below has not committed any error in observing
that the applicant No.1 in her application itself has
narrated the manner in which she dissolved the marriage
with her first husband i.e. by pronouncing triple “Talak”
which is contrary to section 2 of the Act of 1939.

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14- Taking this view of the matter, there is no

requirement to dwell further into the question of validity
of marriage with the respondent as it is suffice to observe
that the allege marriage with respondent is contrary to
section 5 of the Hindu Marriage Act, 1955.
15- Consequently, the present revision petition is,
hereby, dismissed being devoid of merits.

(S.K.Awasthi)
Judge
Aman

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