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Mohammad Zirgham Ansari vs Shamima Begam on 22 January, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No. – 32

Case :- FIRST APPEAL No. – 160 of 2018

Appellant :- Mohammad Zirgham Ansari

Respondent :- Shamima Begam

Counsel for Appellant :- S.M.N. Abbas Abedi

Counsel for Respondent :- Praveen Kumar Giri

Hon’ble Shashi Kant Gupta,J.

Hon’ble Pradeep Kumar Srivastava,J.

(Delivered by Hon’ble Pradeep Kumar Srivastava, J.)

1. This first appeal has been directed against the judgment and order dated 26.5.2015 passed by the Principal Judge, Family Court, Chandauli in Case No. 149 of 2014: Mohammad Zirgham Ansari Vs. Shamima Begum by which, the learned Family Court has dismissed the petition of the appellant/petitioner for declaration of divorce between the parties.

2. The appellant/petitioner filed a petition before the learned court below stating that he was married with Shamima Begum /respondent according to Islamic Rights and Rituals on 03.02.2002. After marriage, Shamima Begum started living with the appellant and thereafter the appellant could know that the respondent is quarrelsome woman and she has no love for her husband. She started quarreling with him and his family members and was always inclined to go to her parental house. Finally, finding that relation cannot be continued with her, the appellant/petitioner divorced her on 29.6.2002 before the witnesses by way of Triple Talaq and talaq was communicated by registered post and the amount of divorce was also sent to her by money-order but she refused to receive the same. In respect of divorce given on 29.6.2002, the appellant/petitioner obtained a fatwa verifying the divorce by Sharia court, Varanasi. The petitioner/appellant filed a complaint before the Sharia Court, Varanasi in which respondent was summoned but she did not appear before the court and, therefore, Sharia Court gave judgment in favour of the appellant/petitioner on 10.5.2007. The petitioner/appellant has stated that in case under Section 125 Cr.P.C. which was registered in Chandauli Court as Case No. 81 of 2002: Shamima Begam Vs. Mohd. Zirgham Ansari, he filed written statement stating therein that Shamima Begam is his divorced wife and, therefore, she could not get maintenance. The Chief Judicial Magistrate, Chandauli refused to recognize the talaqnama on the ground that there is no declaratory decree of divorce. Therefore, this petition for declaratory decree in respect of divorce between the parties was filed.

3. The respondent-opposite party filed written statement. She denied the plaint allegations and stated that petition was not maintainable. She alleged that marriage between the parties took place on 03.2.2002 in which the amount of said dower was fixed to be Rs.11,000/-. When she went to her in-laws house, she was being harassed by her husband and family members by beating and otherwise. On 12.5.2002, she was beaten by the petitioner/appellant on account of not giving Maruti Car in dowry and he left her on Mughalsarai Railway Station grabbing her stridhan and also threatened that if she came back without Maruti Car, she will be killed. She was medically examined on 13.5.2002. Second time when she went to her in-laws house again on 06.7.2002, she was beaten badly and again she was medically examined on 07.7.2002 in respect of which, a Case No. 127 of 2002 under Sections 498-A, 323, 504, 506 IPC and under Section ¾ Dowry Prohibition Act was registered. On 26.11.2002 she gave birth to a son. On 27.11.2002, the petitioner-appellant gave an application in her case for maintenance to the effect that he has given divorce to her. The said application was rejected by the court on 18.6.2003 against which he filed a criminal revision being Criminal Revision No. 157 of 2003 in the court of District Judge and the same was also dismissed on 23.9.2003. Thus, the plea of divorce was not established and in the case for maintenance the witnesses expressed their ignorance about divorce. Again an application dated 20.11.2004 was given in court in which plea of divorce was taken and the same was rejected by the Chief Judicial Magistrate, Chandauli on 17.1.2006. Against the said order, a criminal writ petition being Criminal Misc. Writ petition No. 9316 of 2006: Mohd. Zirgham Ansari Vs. Shamima Begam was filed before this Court which was also dismissed by the order dated 05.4.2012. The petition for maintenance was disposed of on 07.1.2008 and the learned court below opined that since she has not been given divorce according to Islamic law. Thereafter, this petition was filed by the husband in the court of Civil Judge (Junior Division), Varanasi, which was transferred to the Family court, since no divorce has taken place between the parties, the petition is not maintainable and is liable to be dismissed.

4. The learned court below framed following issues:

(I) Whether petitioner-appellant on 29.6.2002 has given divorce to the respondent and the respondent has been totally freed from him and the amount of talaq sent by him has been refused by the respondent?

(II) Whether talaq between petitioner and respondent has taken place earlier according to Islamic law?

(III) Whether petitioner is entitled for declaratory decree on the basis of evidence available in the petition and divorce dated 29.6.2002?

(III) Whether petitioner is entitled for any other relief?

5. In support of his petition, petitioner examined himself as PW-1 and father Mohd. Hanif as PW-2. Documentary evidence was also filed as receipt 8G/1 to 8G/3 regarding money order, Certificate under posting 8G4, Sharia court decision 8G/5 to 8G/13, application 8G/14, order of Chief Judicial Magistrate 8G/15 to 8G/16, Indian postal receipt i.e. 8G/17, advertisement 8G/18, affidavit 8G/19, High School certificate 8G/20, order of Civil Judge (J.D.) Varanasi 8G/22 to 8G/23.

6. The respondent examined herself as DW-1 and her brother DW-2 Riyaz Ahmad in her support. She has also filed documentary evidence which are charge-sheet 34G/2, medical report 34G/3 to 34G/4, order of Civil Judge (S.D.) Chandauli dated 18.6.2003 34G/6 to 34G/8, order of District Judge dated 23.9.2003 34G/10,34G/11, statement of AW-1 Mohd. Zirgham Ansari 34G/13,34G/19, statement of AW-2-Shamim Ahmad 34G/21,34G/23, statement of AW-3-Parvaj Ahmad 34G/25 to 34-ga/27, order of C.J.M. Dated 17.1.2006 34G/29 to 34G/30, order of District Judge dated 5.6.2006 34G/32 to 34G/33, order of this Court dated 5.4.2012 in Criminal Misc . Writ Petition No. 9316 of 2006: Mohd. Zirgham Ansari Vs. State of UP 35G/2, order of Judicial Magistrate dated 07.1.2008 36G/2 to 36G/6 etc.

7. After hearing both sides and perusing the evidence given by the parties, impugned judgment and order dated 26.5.2015 was passed by which suit of Petitioner was dismissed.

8. Aggrieved by the said judgment and order, this first appeal has been filed on the ground that the judgment passed by the Family Court is illegal and is liable to be set aside. The said judgment is totally against the evidence on record and is in violation of principal of natural justice as it was proved by the appellant-petitioner that he pronounced talaq in presence of two witnesses and the same was communicated to the respondent through post and amount of mehar was also sent by money-order. Reason of talaq was, not good relations between the parties as behavior of respondent was very bad and she always insisted to live in her parental house. When the order of maintenance under Section 125 Cr.P.C. was passed, the decree of divorce was not on record and now along with this appeal the same has been filed. There was sufficient ground for declaration of divorce and the case was wrongly decided, hence appeal is liable to be allowed and the impugned judgment and order is liable to be set aside declaring divorce between both the parties.

9. Heard learned counsel for the parties and perused the record.

10. At the outset it may be pointed out that the petitioner-appellant had sought declaratory decree in respect of alleged divorce dated 29.6.2002. Under the provision of Indian Limitation Act, a declaratory suit should be filed within three years from the date the status has been denied. In this case, according to own version of the petitioner, he divorced his wife on 29.6.2002. Reckoning from the date of divorce 29.6.2002, such declaratory suit could be filed till 29.6.2005. Taking into consideration para 6 of the petition, the need for such declaration occurred only when in his judgment the court of Chief Judicial Magistrate, Chandauli, while disposing of the application of respondent under Section 125 Cr.P.C. made observation that unless declaratory decree of divorce is obtained, the divorce will not be recognized in law. From perusal of record, it is clear that learned Chief Judicial Magistrate, Chandauli passed the judgment on 07.1.2008 and if reckoned from that date, the petition for declaration must have been filed till 07.1.2011. The petition has been filed on 5.5.2011 and therefore, the same is prima facie barred by limitation.

11. Another issue relevant for the disposal of this appeal is to determine that the appellant divorced the respondent on 29.06.2002 and the divorce was validly given and effected in view of relevant judicial pronouncements in the country. In Shamim Ara Vs. State of UP, (2002) 7 SCC 518, Hon’ble Supreme Court held that Talaq, in order to be effective has to be pronounced. The Court said that plea of talaq taken in unsubstantiated written statement submitted before a court should not be accepted as proof of talaq. Brief fact of this case is that Shamim Ara was married to Abrar Ahmed in the year 1968 according to Muslim Shariat law. In the year 1979, the appellant, on behalf of herself and for her two minor children, filed a case under Section 125 Cr.PC against her husband on the ground that he has deserted her. In reply, the husband filed written statement in 1990 before court alleging that he had already divorced his wife in 1987 and, therefore, she was not entitled to claim maintenance. Upon this, the court rejected wife’s claim of maintenance. In an appeal, the Allahabad High Court held that communication of Talaq was completed in 1990 by the husband’s written statement filed in the court. But, the Supreme Court held that Talaq to be effective has to be pronounced and mere plea of previous divorce taken in the written statement and delivering copy thereof to the wife cannot be at all a pronouncement of Talaq. Elaborating the meaning of word ‘pronouncement’, the Supreme Court said that the term ‘pronounce’ means to proclaim or to utter formally which is essential to effect divorce. The Court said that divorce must be for reasonable cause and it must be preceded after attempt of reconciliation between husband and wife before two persons, one from the side of the husband and other from the side of wife who should make effort for reconciliation.

12. Prior to Shamim Ara (supra), two decisions of the Gauhati High Court, to which specific reference was made, namely Jiauddin Ahmed v. Anwara Begum (1981) 1 Gau LR 358 and Rukia Khatun v. Abdul Khalique Laskar,(1981) 1 Gau LR 375 had already expressed similar view. In Jiauddin Ahmed case, a plea of previous divorce i.e. the husband having divorced the wife on some day much previous to the date of filing of the written statement in the Court was taken and upheld. The question posed before the High Court was whether there has been valid talaq of the wife by the husband under the Muslim law. The learned Judge observed that though marriage under the Muslim law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriage tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution. In both Jiauddin Ahmed and Rukia Khatun, the Division Bench stated that the correct law of talaq as ordained by the Holy Quran, is: (i) that ‘talaq’ must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, ‘talaq’ may be effected.

13. In Shamim Ara (supra), there is also a fruitful reference of two judgments of the Kerala High Court – one of Justice Krishna Iyer in A. Yousuf Rawther v. Sowramma, AIR 1971 Ker 261 and the other of Justice V. Khalid in Mohd. Haneefa v. Pathummal Beevi,1972 KLT 512 and from A. Yousuf Rawther, following observation was affirmingly quoted:

“….The Islamic law gives to the man primarily the facilty of dissolving the marriage, if the wife, by her indocility or her bad character, renders the married life unhappy; but in the absence of serious reasons, no man can justify a divorce, either in the eye of religion or the law. ”

14. Subsequently, in Zamrud Begum v. K. Md. Haneef, (2003) 3 ALD 220 , the High Court of Andhra Pradesh held:

” It is observed by the Supreme Court in the above said decision (Shamim Ara) that talaq may be oral or in writing and it must be for a reasonable cause. It must be preceded by an attempt of reconciliation of husband and wife by two arbitrators one chosen from the family of the wife and other by husband. If their attempts fail then talaq may be effected by pronouncement…..”

15. Similarly, in A. S. Parveen Akthar v. The Union of India,(2002 SCC OnLine Mad 836) the High Court of Madras concluded:

“…. talaq, in whatever form, must be for a reasonable cause, and must be preceded by attempts for reconciliation by arbiters chosen from the families of each of the spouses, the petitioner’s apprehension that notwithstanding absence of cause and no efforts having been made to reconcile the spouses, this form of talaq is valid, is based on a misunderstanding of the law.”

16. In Manzoor Ahmad Khan v Saja 2010 (4) JKJ 380, the High Court of Jammu Kashmir, noted that in Shamim Ara (supra), the Apex Court relied upon the passages from judgments of various High Courts “which are eye openers for those who think that a Muslim man can divorce his wife merely at whim or on caprice” and finally held that the marriage between the parties did not stand dissolved. In Ummer Farooque v. Naseema, 2005 (4) KLT 565, the High Court of Kerala pointed out that the general impression that a muslim male can effect divorce whenever he desires and to effect it no witness is necessary nor it needs to be addressed to the wife is no longer acceptable. The court held:

“The mere pronouncement of talaq three times even in the presence of the wife is not sufficient to effect a divorce under Mohammadan Law. As held by the Supreme Court in Shamim Ara…., there should be an attempt of mediation by two mediators; one on the side of the husband and the other on the side of the wife and only in case it was a failure that the husband is entitled to pronounce talaq to divorce the wife…”

17. In Masroor Ahmed v State (NCT of Delhi, ILR (2007)2 Del. 1329), it was held as follows:

“Thus, after Shamim Ara (supra), the position of the law relating to talaq, where it is contested by either spouse, is that, if it has to take effect, first of all the pronouncement of talaq must be proved (it is not sufficient to merely state in court in a written statement or in some other pleading that talaq was given at some earlier point of time), then reasonable cause must be shown as also the attempt at reconciliation must be demonstrated to have taken place….”

18. Refering to Shamim Ara (supra) and various decisions of the High Courts discussed above, recently, in Shayara Bano Vs. Union of India,(2017) 9 SCC 1, the supreme court observed:

“Marriage in Islam is a contract, and like other contracts, may under certain circumstances, be terminated. (But) In the absence of good reason, no man can justify a divorce….. Divorce breaks the marital tie which is fundamental to family life in Islam. Not only does it disrupt the marital tie between man and woman, but it has severe psychological and other repercussions on the children from such marriage.”

19. The Supreme Court noted that Shamim Ara (supra) is in “respectful agreement” with Jiauddin Ahmed (supra) and Rukia Khatun (supra) which laid down that “talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife’s family and the other from the husband’s; if the attempts fail, ”talaq’ may be effected.” and remarked that Shamim Ara is the authority on the point of laying down conditions for valid talaq. Re-iterating and endorsing the law laid down in Shamim Ara (supra), it was held in Shayara Bano (supra) ” that talaq must be for a reasonable cause and be preceded by (i) that “talaq” must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters,” otherwise “this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.”

20. Therefore, following legal principles emerge from above discussion for judging the validity of talaq:

1. Talaq whether oral or writing must be pronounced in presence of two witnesses.

2. If wife is not present at the time of pronouncing talaq, it should be communicated to her.

3. There should be reasonable cause for divorce.

4. Effort of reconcilliation made by two persons appointed by parties – one from husband side and other from wife side.

5. Mere averment of divorce in written statement/application in a case before a court will not be effected as valid divorce.

21. In this appeal, it has to be seen whether on the alleged date 29.6.2002, the appellant-petitioner validly effected divorce by pronouncing triple talaq under Muslim law? Whether it was duly communicated? Whether there was reasonable cause for divorce? Furthermore, it was also to be established that prior to pronouncement of triple talaq the effort was made by appointing two persons, one from the side of appellant-petitioner and other from the side of respondent who could initiate reconciliation, and only after failure of reconciliation process, divorce was effected.

22. Pronouncement

Talaq may be oral or in writing. The first condition for a valid talaq is that it must be pronounced. Admittedly, the talaq was not pronounced before the respondent wife, as PW-1 himself has stated on oath that at the time of pronouncment of talaq, his wife was not present before him. He claims in the petition that he prononced talaq before two witnesses. No such witness has been examined in evidence. In maintainence case, a witness was examined but he stated his ignorance, and the learned magistrate reccorded finding to the affect that he was not able to prove divorce. By an application first and thereafter, in the written statement filed in maintainence proceeding, it was stated by the petitioner that he gave divorce to his wife on 29.6.2002 before witnesses. Since no witness was produced to support this version, mere pleading in an application or in written statement and delivering a copy thereof could not validly effect divorce between the parties.

23. Reasonable Cause

The allegation in the petition has been only that wife was quarrelsome. There is no specific evidence or allegation in the pleadings of her being quarrelsome or detail of any quarrel which might have taken place before divorce. Second ground taken in the petition was that Shamima Begum always insisted to go to her parental house. It is pertinent to mention here that both PW-1 and PW-2 have stated that Shamima Begum lived with her husband only three days after marriage and thereafter, she went to her parental house and did not come back. The evidence on record shows that Shamima went to her parents with her brother and it needs no mention that there has been practice that newly married girls normally visit to their parents in our society soon after the marriage. Therefore, there was no occasion for Shamima Begum to insist to go to her parents if she had already left after three days. No serious reason or serious quarrel has been shown in that three days of stay. On the contrary, respondent has pleaded and has adduced evidence to the effect that she went to her husband and laws more than once but every time she was beaten, humiliated and harassed on account of non-fulfillment of demand of dowry, as her husband and laws were demanding Maruti car. She got herself medically examined, she lodged FIR and police submitted charge-sheet. The charge-sheet has been filed by respondent in evidence. Mere allegation of being quarrelsome or insistence to go to parental house cannot be that kind of serious allegation for which a divorce may be given, nor it fulfills the condition of existence of reasonable cause for divorce as laid down by the Supreme Court.

24. Reconciliation Process

There is no evidence given from the side of the petitioner that any effort was made for reconciliation by appointing two arbiters, one from the side of husband’s family and other from the side of wife’s family and who might have made effort for reconciliation between the parties. Thus, the essential condition mentioned above is also not satisfied.

25. Communication

So far as communication of divorce is concerned, it is pertinent to mention here that it was only application /written statement filed by the petitioner in proceeding of maintenance before the learned magistrate in which it was alleged that he had already divorced on 29.6.2002. Notably, that divorce of 29.6.2002 was not recognized in maintenance proceedings and the application given by the petitioner to that effect was rejected and that decision was upheld up to this Court. After that, the petitioner made efforts to obtain fatwa and judgment of Sharia court by filing complaint where his wife did not appear. In view of this, we are of the firm view that any such judgment of Sharia court will not have any valid effect in order to conclude that there was divorce between the parties or husband had already affected divorce against his wife. This fact was required to be established before the learned court below where the petitioner failed to establish the same. Even evidence given before the learned court below on the point of communication of divorce is also not sufficient. PW-1 has stated that he did not pronounce Talaq in presence of Shamima Begum nor he sent any talaqnama himself to her by registered post. He has also stated that he did not remember whether any money order was sent to Shamima Begum or not? PW-2 Mohd. Hanif who is father of the petitioner has stated that he did not remember that talaq, nor it was pronounced in writing, nor he could remember the name of witnesses. He did not remember why divorce was given by his son to Shamima Begum. It was alleged in the petition that divorce was given in presence of two witnesses, but, none of such witness was examined. Those witnesses were examined in maintenance case, but they could not prove divorce to the satisfaction of the court.

26. Therefore, if tested on the touch stone of law laid down in Shayara Bano (supra) and Shamim Ara (supra), petitioner’s case of divorce being given on 29.6.2002 was not established in the court below and the conclusion reached by the court below is factually and legally correct.

27. From the above discussions, we find no illegality or infirmity in the judgment of learned court below and first appeal is liable to be dismissed.

28. Accordingly appeal is dismissed.

29. Let lower court record be sent back to court below forthwith alongwith the copy of the judgement.

Dated: 22.1.2019

Bhanu/-

(Pradeep Kumar Srivastava,J.) (Shashi Kant Gupta,J.)

 

 

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