Smt. Husna Parveen vs Rashid Ahmad
2015 Latest Caselaw 3180 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- FIRST APPEAL No. - 751 of 2005
 

 
Appellant :- Smt. Husna Parveen
 
Respondent :- Rashid Ahmad
 
Counsel for Appellant :- Kshitij Shailendra
 
Counsel for Respondent :- T.A.Khan
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Shamsher Bahadur Singh,J.

1. This appeal under Section 19 of Family Court Act, 1984 (hereinafter referred to as "Act,1984") has arisen from judgement and decree dated 13th September, 2005 passed by Principal Judge, Family Court, Moradabad in Matrimonial Case No. 365 of 2002, making a declaratory decree that in view of divorce given by plaintiff to the defendant, she is no more wife of the plaintiff.

2. This is defendant's appeal who is aggrieved by the aforesaid judgement and decree.

3. The brief facts giving rise to this appeal are as under:

4. Marriage between defendant-appellant and plaintiff-respondent was solemnized on 17th May 2000 with agreed Mehr of Rs.25,000/-. The plaintiff-respondent gave notice dated 27th March, 2002 to the appellant making a complaint that she is not discharging her matrimonial obligations properly and staying most of the time at her parent's place. She went with her mother on 4th July, 2000 and has not returned to the residence of plaintiff till the date of notice. The plaintiff requested defendant to come back within three days failing which she may treat herself to have been divorced. Thereafter another notice was given on 30th April, 2002 stating that since defendant has not come back, she has been divorced and is no more wife of plaintiff. She is free to stay according to her own wishes.

5. Thereafter plaintiff filed Matrimonial Case No. 365 of 2002 in Family Court, Moradabad seeking a declaration that defendant is no more wife of plaintiff having already been divorced and she be restrained from representing herself to be wife of plaintiff. It was contested by defendant by filing written statement dated 1st January, 2003 wherein she denied allegations made against her that she has been staying at her parents residence most of times. So far as two notices are concerned, she stated in para 9 of written statement that giving three days' notice itself was wrong since 28th March, 2002 was day of Holi Festival, 29th March, 2002 Dulhadi and Good Friday, and 31st March, 2002 Sunday. Therefore, even registered notice could not have been served within three days. She also stated that notice dated 30th April, 2002 is also superficial. The defendant was at the residence of plaintiff and no acknowledgement in respect to registered notice was kept on record.

6. She further pleaded that on 11th August, 2001 she was maltreated by plaintiff who beat her, demanded dowry and sent her to parent's residence but thereafter kept defendant again after receiving Rs.50,000/- from her parents. Still he continued to demand Rs.1,00,000/-. and a car and turned out her from his house. On 3.5.2002, on persuasion it was decided that parties shall negotiate/mediate at the residence of defendant on 31st May, 2002. When plaintiff and his relatives raised repeated demand of dowry of Rs.1,00,000/-, a complaint was filed in Women Police Station. Pursuant thereto a case under Sections 498A, 323 I.P.C. and 3/4 of Dowry Prohibition Act is pending in Court of Chief Judicial Magistrate, Moradabad. According to tenets of Quran Sharif divorce cannot be granted without any valid reason and there has to be an effort of conciliation between the parties as held in Shamim Ara Versus State of U.P. and another AIR 2002 SC 3551. Defendant has learnt that plaintiff expelled his earlier wife after dealing her with a lot of cruelty.

7. Trial Court initially formulated four issues but issue 2, subsequently was deleted vide order dated 12th September, 2005 and suit proceeded for adjudication on issues 1, 3 and 4.

8. Issues 1, 3 and 4 read as under:

^^1& D;k oknh }kjk izfrokfnuh dks rykd ns fn;k x;k gS\^^

"1- Whether divorce has been given to the lady defendant by the plaintiff?"

^^3& D;k izfrokfnuh dks rykd lEcU/kh dksbZ uksfVl ugha fn;k x;k\^^

"3- Whether no Notice for Divorce was given to the lady defendant?"

^^4& vuqrks"k\^^

"4- Relief."

(English Translation by Court)

9. Issues 1 and 3 were taken together and answered in favour of plaintiff. Consequently suit was decreed and declaration as prayed was granted.

10. Sri Kshitij Shailendra, learned counsel appearing for appellant raised two questions before this Court.

(i) There was no valid divorce given by plaintiff-respondent.

(ii) Reasonable cause for granting divorce was absent and, therefore, alleged divorce has wrongly been accepted by Court below.

11. Sri K. Shailendra, learned counsel for defendant-appellant contended that in Muslim Law divorce can be oral or by writing a 'Talaqnama'. In the present case admittedly no oral divorce was granted. The plaintiff-respondent relied on documentary 'Talaq' i.e. notices dated 27.3.2002 and 30.4.2002 but it cannot be said that these documents constitute 'Talaqnama'. Therefore, view taken by Court below that there has been a divorce by plaintiff-respondent is clearly illegal. He placed reliance on Apex Court's decision in Shamim Ara Versus State of U.P. and another (supra).

12. Sri T.A. Khan, learned counsel appearing for plaintiff-respondent contended that intention of divorce has been disclosed by plaintiff-respondent vide notice dated 30.4.2002. He has further submitted that there is no specific challenge to receipt of notices by defendant-appellant and reply given in the written statement is very vague. There is valid divorce in accordance with Islamic tenets.

13. We have heard learned counsel for the parties and perused the record.

14. Following points for determination need adjudication for deciding this appeal:

(i) Whether notices dated 27.3.2002 and 30.4.2002 were served upon defendant-appellant?

(ii) Whether there is a valid divorce by plaintiff-respondent in accordance with Islamic tenants?

15. We find that with respect to receipt of notices, there is complete absence of specific pleading in the written statement that the two notices were not served upon appellant or that she did not receive the same. Reply in written statement, in respect to notices is vague. It says that notice did not give ample time or that the notice is superficial. With respect to receipt of notice, we do not find any specific pleading in the written statement that the same were not received by appellant or the same were not served upon her though the same were sent by registered post. There is another vague pleading that acknowledgment of registered notice has not been kept on record, but again a denial regarding receipt of notice is absent in the pleading of appellant.

16. In written statement, defendant-appellant has said with regard to notice dated 27.3.2002 that three days' time given therein was not justified since three days from the notice dated 27th March, 2002 were all holidays as such three days' notice was not justified. However, receipt of aforesaid notice, we do not find that it has been specifically denied. It is also not the case of defendant-appellant that after expiry of three days of above notice, defendant-appellant made any attempt to go to the house of plaintiff. The second notice was given after more than one month i.e. 30th April, 2002. Nothing has been pleaded or placed on record to show that the aforesaid notices were not received by defendant-appellant.

17. Further, with respect to notice dated 30.04.2002, the defendant-appellant has pleaded in her written statement that it is of no consequence since at that time she was at the residence of plaintiff-respondent. She has not denied specifically receipt of notice dated 30.4.2002. To prove that she was at the house of her husband at the time notice dated 30.4.2002 was given, no evidence has been adduced.

18. Plaintiff-respondent has specifically pleaded that defendant-appellant left house of husband on 4th July, 2001 and thereafter did not return. On the contrary, defendant-appellant has pleaded that she was at the residence of husband till 11th August, 2001 when she was beaten and thrown away by husband from his house. In support of aforesaid pleading no evidence has been led before court below and nothing could be shown to us. She has also pleaded that on 3rd May, 2002 she was again beaten and thrown out of husband's house but to prove aforesaid pleading again no evidence has been led by defendant-appellant.

19. From record of Court below we find that on 12th September, 2005, defendant-appellant made statement before Court below that she has not received notices as alleged by plaintiff-respondent. The notices were sent by registered post. This fact is not disputed. They were not received by sender undelivered from post office. When a letter is sent by registered post, there is a legal presumption that it must have been received by sendee unless proved otherwise. The presumption is rebuttable. In the present case, rebuttable of presumption has not come in the pleadings of defendant-appellant. In written statement there is no specific averment that none of two notices were ever received by defendant-appellant. She sought to make a submission before Court below in oral deposition and that too without any specific pleadings that notices were not received. In absence of any further evidence led by defendant-appellant, it cannot construe a rebuttal of presumption of service of registered notices sent by plaintiff-respondent.

20. A letter or document, if sent by registered post, there is a statutory presumption that it has been delivered by employee or agent of Post Office upon addressee. It is not a conclusive presumption but rebuttable. However, to nullify this statutory presumption, or even to rebut such presumption, there has to be a specific pleading by the addressee. In this respect three statutory provisions may need be taken note of.

21. First, is Section 27 of General Clauses Act, 1897 (hereinafter referred to as "Act, 1897" which reads as under:

"27. Meaning of service by post.-Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

22. Another relevant provision is Section 114, Illustrations (e) and (f), Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1972") which reads as under:

"114. Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations

The Court may presume-

...

(e) The judicial and official acts have been regularly performed;

(f) That the common course of business has been followed in particular cases;"

23. The third is Indian Post Office Act, 1898 (hereinafter referred to as "Act, 1898"). Section 3 and 14 thereof, relevant for the purpose of present case, are reproduced as under:

"3. Meanings of "in course of transmission by post" and "delivery".- For the purposes of this Act,-

a) a postal article shall be deemed to be in course of transmission by the post from the time of its being delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII;

b) the delivery of a postal article of any description to a postman or other person authorized to receive postal articles of that description for the post shall be deemed to be a delivery to a post office; and

c) the delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee."

"14. Post Office marks prima facie evidence of certain facts denoted.-In every proceeding for the recovery of any postage or other sum alleged to be due under this Act in respect of a postal article,-

(a) the production of the postal article, having thereon the official mark of the Post Office denoting that the article has been refused, or that the addressee is dead or cannot be found, shall be prima facie evidence of the fact so denoted, and

(b) the person from whom the postal article purports to have come, shall, until the contrary is proved, be deemed to be the sender thereof."

24. Though in the three statutes referred to above, the oldest one is Act, 1872 but in fact the provisions relating to Post Office Act are older, going to 1866 when the first Post Office Act was enacted. In the then British Indian Territory governed by the British Government, postal services were established by appointing a Director, Post Office by the Governor General in Council in order to regulate this branch of public service and revenue, in the light of experience gained by English postal legislation and development of Post Offices. Commenting upon the Post Office service in England, in Whitfield Vs. Lord Le Despencer (1778) 2 Cowp. 754, Lord Mansfield had said:

"The Post Master has no hire, enters into no contract, carries on no merchandise or commerce. But the post office is a branch of revenue, and a branch of police, created by Act of Parliament. As a branch of revenue, there are great receipts; but there is likewise a great surplus of benefit and advantage to the public, arising from the fund. As a branch of police it puts the whole correspondence of the kingdom (for the exceptions are very trifling) under government, and entrusts the management and direction of it to the crown, and officers appointed by the crown. There is no analogy therefore between the case of the Post Master and a common carrier."

25. Following the above decision in a recent case in Triefus & Co. Ltd. Vs. Post Office (1957) 2 Q.B. 352, it was held that Post Office is a branch of revenue and Post Master General does not enter into any contract with a person, who entrust to the Post Office, a postal packet for transmission overseas.

26. Presently also the Post Office service in India, with which this Court is concerned, is not in the hands of any private individual or corporate body but it is a Department of Government of India and on certain matters, it is regulated by various Statutes including the Act, 1898.

27. We have referred to the above two decisions in Whitfield (supra) and Triefus & Co. Ltd. (supra) for the reason that the system of Post Office in India has been observed to be similar as it was in England and the Apex Court referring to the certain provisions of Act, 1898 said, in Union of India Vs. Mohd. Niazim AIR 1980 SC 431:

"These are only some of the provisions of the Act which seem to indicate that the post office is not a common carrier, it is not an agent of the sender of the postal article for reaching it to the addressee. It is really a branch of the public service providing postal services subject to the provisions of the Indian Post Office Act and the rules made thereunder. The law relating to the post office in England is not very much different from that in this country."

28. The aforesaid decision was rendered considering the provisions in Act, 1898 which was enacted by repealing previous Act of 1866 so as to consolidate and amend the law relating to Post Office in India.

29. The post office in India, thus, is an institution established by a statute. "Postage" required to avail of the postal services has been defined in section 2 (f) of Act, 1898 as "the duty chargeable for the transmission by post of postal articles". Under section 4 the exclusive privilege of conveying letters is reserved to the Central Government with certain exceptions which are not significant. Section 17 of the Act says that "postage stamps" shall be deemed to be issued by Government for the purpose of revenue. The provisions of the Act indicate that the post office is not a common carrier. It is not an agent of sender of the postal article for reaching it to the addressee. It is really a branch of public service providing postal services subject to the provisions of Act, 1898 and the Rules made thereunder. It is in this context, Section 14 of Act, 1898 would also be a matter of relevance which says that the production of postal receipts showing submission of articles for delivery or the postal article, having thereon the official mark of Post Office denoting that the article has been refused, or that the addressee is dead or cannot be found, shall be prima facie evidence of the fact so denoted. The Statute provides a prima facie evidence of the mark given by Postal Department on the postal article sent by post regarding its correctness, though the word "prima facie" shows that it is liable to be disproved by adducing evidence otherwise. Meaning thereby the mere denial by the party in respect to whom the endorsement has been made by postal agent otherwise, would not be sufficient unless he adduce evidence to discredit prima facie evidence in the shape of endorsement made by postal department on the article concerned.

30. This provision read with Section 114 of Act, 1872 and Section 27 of Act, 1897 makes the situation quite clear. It appears that in various decisions, while considering the question of service of notice, most of the times, provisions of Act, 1898 and its implication have been omitted even when the service was sought to be effected by registered post.

31. Initially the issue of service of notice under Section 106 of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") was considered by Privy Council in Harihar Banerji and others Vs. Ramshashi Roy and others AIR 1918 PC 102. The Court said, if a letter, properly directed, containing a notice to quit, is proved to have been put into post office, it is presumed that letter reached its destination at proper time according to regular course of business of post office and was received by the person to whom it was addressed. The presumption would apply with still greater force to such letters which the sender has taken precaution to register and is not rebutted but strengthened by the fact that a receipt for the letter is produced, signed on behalf of the addressee by some person other than the addressee himself.

32. This Court in Wasu Ram Vs. R.L. Sethi 1963 AWR 472 said:

"The question whether a communication sent through the post was received by the address is one of fact, but in many cases it may be difficult and inconvenient if not impossible, to produce the postal official who delivered the letter or the money order. To obviate this difficulty the Evidence Act permits certain presumptions to be made under certain circumstances. S. 16 provides that "when there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact". The illustration (a) to this section explains that in a question "whether a particular letter was despaired, the facts that it was the ordinary course of business for all letter put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant". S. 114 provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and proper business, in their relation to the facts of the particular case. Illustration (e) to this section says that "the court may presume that judicial and official acts have been regularly performed"; and Illustration (f) says that the court may presume that "the common course of business has been followed in particular cases". The combined effect of these two sections is to raise a presumption that a communication sent by post was received in the ordinary course by the addressee, and if it was returned to the sender with the endorsement "refused", the postman must have tendered it but delivery could not be made because of the refusal of the addressee. These presumptions are based on human experience and common sense. Our experience tells us that millions of letters which are posted are delivered in due course to the address, though in exceptional cases letters do get lost. The onus of proof is on the person who asserts that the abnormal happened in his case and the communication sent by post did not follow its normal course to destination." (emphasis added)

33. In Har Charan Singh Vs. Shiv Rani AIR 1981 SC 1284, a three-Judge Bench (by majority) with respect to notice when registered letter is returned with endorsement of "refusal", said:

"Section 27 of the General Clauses Act, 1897 deals with the topic 'Meaning of service by post' and says that where any Central Act or Regulation authorities or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to s. 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under s. 27 of the General Clauses Act as well as under s. 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise." (emphasis added)

34. Following the Apex Court decision in Gujarat Electricity Board Vs. Atmaram Sungomal Poshani AIR 1989 SC 1433 this Court in Jhabul Ram Vs. District Judge, Ballia 1994 (23) ALR 464, in para 9, said:

"9. Bald denial of the petitioner could not absolve him from the burden of rebutting the presumption of service of notice arising from the endorsement by the postal authorities on the registered cover containing the notice. The court below did not commit any error, muchless an error apparent on the face of record, in holding that the notice in question was duly served on the petitioner."

35. Another Apex Court's decision straight on this issue is Basant Singh Vs. Roman Catholic Mission 2003 (1) AIC 1 (SC). In para 8 and 10 of the judgment, the Court observed:

"The presumptions are rebuttable. It is always open to the defendants to rebut the presumption by leading convincing and cogent evidence."

"As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the Statute."

(emphasis added)

36. In view of above discussion, it is clear that statutory presumption is not to be treated to have been rebutted in a casual fashion. Onus upon addressee, if it intends to dispute the receipt of registered letter, is higher than a casual denial, and, that too, at the time of giving oral evidence or during the course of argument in the Trial Court.

37. Moreover, it is also well established that no evidence can be adduced in respect to a fact which is not pleaded. When non receipt of a registered document is not pleaded, the question of giving oral evidence in this regard also cannot arise. In the present case, in absence of any specific denial of the fact that the two notices sent by registered post by plaintiff-respondent were not received by appellant or the same were not tendered by Postman of Indian Postal Department, the presumption of delivery can be drawn validly. Court below has concluded findings of receipt of notices by defendant-appellant and we find no reason to take a different view. The question (i) therefore is answered against the appellant.

38. Then comes the question whether there is a valid divorce in conformity with Islamic tenants. It naturally gives rise to the question, what are the requirements of a valid divorce in Muslim law.

39. In the "Commentaries on Mohammedan Law" by B.R. Verma, 12 Edition (2013), published by Law Publishers (India) Pvt. Ltd., Allahabad, Chapter V Section 58 deals with modes of divorce which reads as under:-

"Sec. 58. Modes of talaq.- A talaq may be effected in the following ways:

(1) By a single pronouncement followed by abstinence from sexual intercourse during the period of talaq;

Provided that in the case of a consummated marriage, with a menstruating wife, the pronouncement is made during a tuhr in which the husband had no sexual intercourse. This is called talaq-ahsan.

{2}(a) In the case of unconsummated marriage, by a single pronouncement, even though during a period of menstruation.

(b) In the case of a consummated marriage by three pronouncements made-

(i) in the case of a menstruating wife-during each of three successive tuhrs; and

(ii) in the case of a non-menstruating wife after intervals of 30 days between each pronouncement; with abstinence from sexual intercourse during these tuhrs on periods and in the case of a pregnant wife, till delivery. This is called talaq-hasan.

{3}(a) By a single pronouncement-

(i) indicating a clear intention to dissolve the marriage irrevocably; or

(ii) made during a tuhr in which there was sexual intercourse; or

(iii) made during menstruation of a wife whose marriage was consummated.

(b) By three pronouncements either in one sentence or separately. This is called talaq-ul-bidaat.

Explanation.- Tuhr is the period of purity between menstruations."

(emphasis added)

40. It shows that single pronouncement indicating clear intention to dissolve marriage, irrevocably would sufficiently constitute a valid divorce. Section 59, then provides manner of giving divorce and reads as under:

"Sec. 59. Talaq how pronounced. (1) A talaq may be effected by words expressed either orally or in writing or by signs where the husband is unable to do so.

(2) An oral talaq becomes effective-

(a) if the words used are express or clearly show an intention to divorce; or

(b) where the words used are not express, if it is proved that there was an intention to effect a divorce.

(3) A talaq in writing becomes effective-

(a) if the writing is in the customary form, showing the name of the writer and the addressee; or

(b) if it is proved that there was an intention to effect a divorce.

(4) It is not necessary that a talaq should be pronounced in the presence of the wife or should be addressed to her.

(5) A talaq may be pronounced conditionally or so as to take effect immediately or at a future time or on the happening of any contingency." (emphasis added)

41. The above quote shows that a talak in writing would be effective when the writing is in customary form showing name of writer and addressee both. Further, intention to effect a divorce is also shown. It also recognizes a conditional talak which may have effect immediately or at a future time or on happening of any contingency.

42. In "Mulla's Principles of Mahomedan Law", Eighteenth Edition (1977) by M. Hidayatullah and Arshad Hidayatullah, published by N.M. Tripathi Private Ltd., Bombay, Second Reprint: 1981, a well accepted authority on the subject, the issue of divorce has been dealt with in Chapter 16 starting from page 325. Amongst various ways in which marriage under Muslim law may be dissolved, one recognized way is dissolution of marriage by husband at his will. It recognizes a "contingent divorce" observing that a divorce may be pronounced so as to take effect on happening of a future event and in this regard, an authority of this Court in Bachchoo Vs. Bismillah AIR 1936 All. 387 has been followed.

43. In Section 310, Chapter 16 the Author says that a talak may be effected orally or by a written document called "talaknama". The talak in writing then further has been explained by observing that a "talaknama" may only be the record of fact of an oral talak. The concept of talak in writing in customary form is that it should be addressed to wife and should disclose intention of divorce by the husband.

44. The term "talak" has been mentioned in "The Muslim Law of India" by Dr. Tahir Mahmood, 1980, published by Law Book Company, Allahabad as a record of talak. It may represent the oral talak earlier effected or may originally be pronounced by means of such record.

45. In Rasul Bakhsh Vs. Mt. Bholan AIR 1932 Lah. 498, it was held, when document is not titled as talaknama, intention of husband to dissolve marriage is to be proved.

46. In Ahmad Kasim Vs. Khatun Bibi AIR 1933 Cal. 27, it was held that if husband writes a letter of talak and sends it to the wife, the letter will operate as talak regardless of her refusal to take it.

47. Therefore, any writing should have clear intention to effect divorce. Writing in customary form means when document is written to someone else and therein divorce is pronounced with intention to do so. The word 'Talaqnama' is not a word of art and title will not be a determining factor inasmuch as any document, which would have effect of pronouncement of divorce with clear intention, can be said to be a 'Talaqnama'. The term 'pronouncement' means to proclaim, to utter formally, to declare, to utter theoretically, to articulate. It is no doubt true that onus to prove that written divorce has been effected lie upon husband but where letter in the form of notice has been sent to wife by registered post, then receipt if not properly disputed by wife, 'talaq' can be said to be effective, if pronouncement of 'talak' with clear intention is evident from the said document.

48. Now comes question, whether two notices sent by plaintiff-respondent constitute a valid divorce? In this regard, relevant contents of notice dated 30th April, 2002 are reproduced as under:

**;g fd eq> uksfVl fngknk }kjk fnukad 27&3&2002 dks vkidks bl vk'k; dk uksfVl fn;k x;k Fkk fd vki fnukad 27&3&2002 ds uksfVl ds olwy gksus ds rhu fnu ds vUnj mDr uksfVl ds vuqikyu es esjs ;gkW vk tk;s vkSj crkSj chch gdwds tkSft;r vnk djssaA vxj vkius ,slk ugha fd;k ;kfu uksfVl fnukad 27&3&2002 dk vuqikyu ugha fd;k rks vki dks esjh rjQ ls rykd drbZA exj vki uksfVl olwy gksus ds ckotwn rhu fnu ds vUnj esjs ;gkW ugha vk;h o vkt rd dksbZ tokc Hkh ugha fn;kA bl otg ls esjh rjQ ls vkidks rykd drbZ gks x;h vkSj vki esjh chch ugha jgh gS vkSj vki fdlh ls Hkh vius vki dks esjh chch dg dj viuk ifjp; ugha nsaA vki vktkn gSA tgkW pkgs jgsa o fudkglkuh dj]sa eq>s dksbZ ,rjkt ugha gksxkA uksfVl gktk ikd o lkQ gS dgha lSe'kdwd ugha gSaA ,gfr;kr ls jf[k;sxk rkfd oDr t:jr ryc gks ldsA udy uksfVl eSus Hkh lqjf{kr j[k yh gSaA^^ (Emphasis added)

"That a notice was on 27.3.2002 given by me, the notice giver, requiring you to come over to my place and to discharge rights and obligations as wife in compliance of the said notice, within 3 days of service of the notice 27.3.2002. In case of your failure to so, that is to say, in the event of non compliance with the notice dated 27.3.2002 you were to stand divorced by me. However, despite being served with the notice you did not come over to my place within three days nor did you submit any reply. As a result, you have been divorced by me and are no longer my wife and hence do not introduce me as your husband. You are free. You can stay anywhere or may enter into any marriage. I would have no objection. The notice is clear and bona fide and it has no element of doubt. Please keep it carefully so that it may be summoned if need be there. I have also retained a copy of the notice."

(English Translation by Court)

49. In the present case, the first notice dated 27.3.2002 clearly makes a contingency that in case appellant does not come back to husband's residence to reside with him, she would stand divorced. It is apparently a contingent divorce, which was to operate in case of non performance of contingency by other party. From the date of sending the notice, as stated by appellant, the next three days were holiday, but the fact is that even thereafter it has not been proved that she returned to husband's house and not even when the second notice dated 30.4.2002 was given to her. The second notice reaffirm and clarify entire things that divorce has already come into effect and has become operative.

50. In the present case notices clearly show that there is a divorce and defendant-appellant is no more wife of plaintiff and she is free to stay wherever she likes. It was proved that notice dated 27.3.2002 has been made final by the notice dated 30.4.2002. Having gone through two documents, we find that the same can be construed to have pronounced divorce to defendant-appellant.

51. Sri Kshitij Shailendra, learned counsel for appellant, relying on the decision in Shamim Ara Vs. State of U.P. (supra) contended that two notices cannot be termed "talaknama" since the document is not titled as "talaknana".

52. In our view, the submission has no force. So far as the decision in Shamim Ara Vs. State of U.P. (supra) is concerned, therein husband had not given divorce to wife at any point of time. In a suit filed before the Court by wife, husband filed written statement in which he pleaded that he has already divorced the wife about fifteen months back. Therein no actual divorce at any point of time was shown by husband, but in the suit he pleaded in written statement that divorce has already taken effect. This pleading was not taken to constitute a valid divorce to the wife. The Court approved from Commentary on Muslim Law by Mulla wherein a decision of Andhra Pradesh High Court in Syed Jamaluddin vs. Valian Be and another (1975) 2 APLJ 20 was cited for the purpose that statement of husband in pleading filed to answer the petition for maintenance by wife that he has already divorced the wife long ago was not accepted and the Court said that pronouncement means to proclaim. The talak, to be effective, has to be pronounced. Having said so, the Court said:

"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 effectuating talaq on the date of delivery of the copy of the written statement to the wife. ... A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife."

53. The aforesaid decision has no application in the case in hand. The two notices relied on by plaintiff-respondent stand on different footings. A notice means a letter conveying certain information/intimation or message from the author to addressee. When a notice as required in a statute is given, it is termed as "legal notice" but the composition of notice is nothing but a written communication by addressor to addressee, of certain intimation, information, action, omission etc. which may have certain consequences in given conditions. Mere fact that the two letters sent by plaintiff-respondent have been termed by him as "notice" would make no difference so far as the effect they have in law in respect to certain contingencies etc., mentioned therein.

54. So far as reasonable cause for divorce is concerned, it has clearly been stated in the notice that defendant-appellant was depriving plaintiff-respondent from her matrimonial obligations, etc. by staying at her parent's residence and away from husband. Therefore, it cannot be said that divorce in the case has been granted by husband without any reasonable cause.

55. The second point for determination, therefore, is also answered against defendant-appellant and in favour of plaintiff-respondent.

56. In the result, we find no legal or otherwise justification to interfere with the judgment in question. The same is therefore confirmed. Appeal is, accordingly, dismissed.

57. Interim order, if any stands vacated.

58. However, in the peculiar facts and circumstances of the case, there shall be no order as to cost.

Order Date :- 14.10.2015

MN/PS