Smt. Nazia Begum vs Shoaib Ahmad
2019 Latest Caselaw 2881 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 32                                   RESERVED JUDGMENT
 

 
Case :- FIRST APPEAL No. - 142 of 2015
 
Appellant :- Smt. Nazia Begum
 
Respondent :- Shoaib Ahmad
 
Counsel for Appellant :- Ajay Kumar Singh,Ashish Kumar Singh
 
Counsel for Respondent :- G.S. Chauhan
 

 
Hon'ble Shashi Kant Gupta,J.

Hon'ble Pradeep Kumar Srivastava,J.

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

1. This appeal has been preferred against the judgment dated 19.02.2015, passed by Principal Judge, Family Court, Allahabad, in Matrimonial Petition No. 562 of 2011 (Shoaib Ahmad vs. Smt. Nazia Begum), whereby the suit of the plaintiff-respondent seeking declaration in respect of divorce given by him to the defendant-appellant on 25.4.2011 has been decreed.

2. Brief facts of the case are that the plaintiff-respondent has filed a declaratory suit stating that he was married with the defendant-appellant, Smt. Nazia Begum on 07.10.2001 according to Muslim Law in Allahabad. The marriage was consummated when she came to his house. The plaintiff-respondent tried his all efforts to keep his wife happy and satisfied but her behaviour with him and with his family members was very rude. She is highly educated, whereas the plaintiff-respondent is a little educated and, therefore, the defendant-appellant had inferiority complex, hence, she always misbehaved with him, in a very humiliating way causing mental harassment to him. For saving his matrimonial life, the plaintiff-respondent continued tolerating her behaviour with the hope that some change will come in her behavour. The plaintiff-respondent refused to agree with her improper conditions as his father was a very old person and his younger brother was a handicapped and, therefore, it was his responsibility to live with them and render services to them. Thereupon, the defendant-appellant became more furious and started threatening that she will involve him and his family members in some false case of dowry and domestic violence. The defendant-appellant was always insisting for partition of his father's property and for starting some good business leaving the small business of tailoring. The defendant-appellant is a modern and independent kind of woman and does not agree to live in parda (veil).

3. On 19.09.2010, the defendant-appellant left the matrimonial house with jeweleries and costly costumes and went to her parental house. The plaintiff-appellant informed about it on 20.11.2010 to S.S.P., Allahabad, Human Rights Commission and the D.I.G., Lucknow by registered post. The defendant-appellant by giving a false application in Mahila Thana lodged a false case against the plaintiff-respondent, his handicapped brother and his old father, his married sister and, brother-in-law and consequently the plaintiff-respondent was arrested and sent to jail for some period. He filed a writ petition No. 3890 of 2011 before the Hon'ble High Court, Allahabad, wherein vide order dated 28.02.2011, the Court directed both the parties to appear before the Mediation Centre for settlement. The defendant-appellant on 22.01.2011 refused settlement through mediation and pressurized for divorce. She also started abusing the plaintiff-respondent. On 25.04.2011, the plaintiff-respondent gave divorce to defendant-appellant and since then according to Muslim Personal Law, they are no longer husband and wife. The divorce was in writing but his community and society wanted that divorce should be final between them and, therefore, it became necessary to get a declaration of divorce from the Court and it is why this suit was filed.

4. The defendant-appellant filed written statement admitting her marriage and denying the remaining contents of the plaint. She has stated that she belongs to a good family and despite the fact that the plaintiff was regularly harassing her physically and mentally on account of demand of dowry, she tried to accommodate with plaintiff-respondent as she has a son of 20 months about whom there is no mention in the plaint. But the plaintiff-respondent deserted her with son by beating her. It is wrong to say that she has taken with her jewelery and costly costumes as in the drafted divorce deed it has been mentioned that whatever articles and goods were given in the dowry, he will return the same to her. The divorce has neither been communicated nor she has heard herself about the divorce being given to her and, therefore, the divorce does not come in effect. In the draft divorce, there is no signature of her husband and, therefore, it is ineffective.

5. On the basis of the pleadings of the parties, the following issues were framed :-

"(i) Whether the plaintiff has divorced the defendant-appellant on 25.04.2011;

(ii) to what relief, the plaintiff-respondent is entitled."

6. In support of the allegations, the plaintiff-respondent Shoaib Ahmad has examined himself as PW-1 and Kamran Ahmad as PW-2. The defendant-appellant Nazia Begum has examined herself as DW-1 and has examined her witnesses as DW-2 Mohd. Sharib, DW-3 Mohd. Shakib and DW-4 Parvez Akhtar.

7. All the witnesses from both the sides have been examined on affidavit and cross-examination have been conducted by both the sides. In addition to the oral evidence, the plaintiff-respondent has also filed a photocopy of receipt of registered post dated 24.11.2010 and the report of divorce according to Shariyat dated 25.04.2011 and written divorce dated 25.04.2011.

8. After hearing both the parties and perusing the evidence given by them, the learned trial court has decreed the suit for declaration of divorce of marriage between the parties dated 25.04.2011.

9. Aggrieved by the aforesaid impugned judgment the defendant-appellant has filed the present appeal stating that the judgmnet of the Principal Judge Family Court, Allahabad is illegal, perverse and is liable to be set aside. The divorce dated 25.04.2011 has not been proved by the plaintiff-respondent. The divorce deed does not contemplate that such divorce was given by the plaintiff to the defendant either in writing or oral. There is no signature of plaintiff on the written divorce and it appears the writer Daud Ahmad who has not been examined as witness. The signatures of two witnesses namely Mohd. Kamran and Abdul Gaffar is also fabricated and forged. Even Mohd. Kamran has not been able to prove divorce. Under what circumstance, the divorce deed was executed has not been mentioned. The written divorce was not addressed to the defendant-appellant and the same is in the form of declaration. As per Muslim Law, the divorce may be in oral or in writing. The plaintiff-respondent has adopted both the theories which is not permissible and otherwise also none of the modes have been established by the plaintiff-respondent. The learned trial court has passed the decree on such grounds which have not been pleaded. In furtherance of the alleged divorce, dower has not been paid to the defendant-appellant. There is no acknowledgment of divorce except filing of the suit. The plaintiff-respondent has not mentioned anything about his son which shows his malafide intention. Legally, in view of the judgment of the Supreme Court, the alleged divorce is not sustainable and, therefore, the impugned judgment and decree is liable to be set aside.

10. Clearly, there is a dispute between the parties with regard to mode of divorce, oral or written, and whether the same was pronounced in the presence of the appellant wife and before witnesses, and if written, whether the same was communicated to her. Moreover, it has been also submitted that the talaq was neither validly given nor proved by the respondent-plaintiff.

11. For the disposal of this appeal, it is necessary to analyze the valid mode of effecting talaq in the Muslim community 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, 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, 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. 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, 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 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 is in "respectful agreement" with Jiauddin Ahmed and Rukia Khatun 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, it was held in Shayara Bano " 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. In First Appeal 160 of 2018, Mohammad Zirgham Ansari vs Shamina Begam, decided on 22.01.2019 by this very Bench, following legal principles have been laid down 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 reconciliation 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.

Therefore, in this instant appeal, the validity and legality of the impugned judgment and decree needs to be examined on the touchstone of above legal principles.

21. The divorce dated 25.04.2011 in respect of which declaration has been sought in the suit, there is no mention in the plaint that oral divorce was given by the plaintiff-respondent. It is also no where mentioned that on 25.0.2011, when allegedly he divorced the defendant-appellant, whether the defendant-appellant was present or not. A written divorce has also been submitted and from perusal of the same, it appears that the same does not bear the signature of plaintiff. When PW-1 Shoaib Ahmad, plaintiff-respondent has been cross-examined, he has admitted that he has not signed on the said divorce deed.

22. It is admitted by the plaintiff in the plaint, and in the cross-examination also, that the defendant left the matrimonial house on 19.09.2010. In the cross-examination, he has shown his ignorance about the payment of dower and amount of Iddat. In the affidavit also, it has not been mentioned whether he divorced the appellant by giving oral talaq. He has stated in tune with the plaint that the divorce deed was prepared by his brother-in-law Daud Ahmad. But from the perusal of the divorce deed, it is clear that it does not bear the signature of the plaintiff.

23. For the first time in his cross-examination, plaintiff has stated that after two month from the birth of his child, the dispute arose between them. It is pertinent to mention that admittedly the marriage between the parties took place on 07.10.2001. In para 6 of his affidavit, the plaintiff has stated that his son Abu Hamza was born on 04.10.2009. Therefore, as per his own evidence, the dispute between the parties arose in the month of December, 2009. It can be assumed that there was routine quarrel between the parties till birth of their son and they continued in the matrimonial relationship. In his cross-examination, the plaintiff has come with a new case that the reason for the dispute was that his wife wanted his property to be in the name of her son. At the same time, he has stated that there is no property in his name. It is also notable that the plaintiff is graduate as he has stated in his cross-examination. Therefore, not putting his signature on the divorce deed makes the genuineness of will deed highly doubtful.

24. PW-2 Kamran has stated that on 22.04.2011 both the husband and wife were present in Allahabad High Court in Mediation Centre for amicable settlement but defendant Nazia Bagum refused and started abusing her husband and demanded divorce from him. Therefore, the mediation failed. On coming back, the plaintiff and his family discussed the situation and in order to pacify Nazia Bagum, the plaintiff along with him and one Abdul Gaffar went to her house on 25.04.2011 and they tried to pacify and satisfy her. But she insisted on divorce saying the plaintiff to go away. Thereupon, the plaintiff Shoaib Ahmad gave triple talaq in presence of Nazia Bagum. But this does not appear to be true, as has this been the fact, this must have been mentioned in the plaint itself or in the affidavit of the plaintiff. We find that there is no such mention either in the plaint or in the affidavit of the plaintiff. Therefore, this statement of PW-2 Kamran appears to be beyond pleading which cannot be relied upon.

25. On the contrary, the appellant-defendant has examined herself and three other witnesses in support and have all stated on oath that no such divorce was given by the respondent-defendant nor the same was ever communicated to her. The version of the appellant-defendant appears to be more probable, as oral divorce has not been pleaded in plaint and the divorce deed is not signed by him. The plaintiff has also expressed his ignorance about the payment of amount of dower and iddat money. Both PW-1 and PW-2 have made a lot of improvements in their statements and have given evidence beyond the pleading.

26. In view of the guidelines laid down by this court in Mohammad Zirgham Ansari vs Shamina Begam (supra), The plaintiff-respondent could not prove the five conditions to effect a valid divorce. It was not pleaded and proved whether the talaq was given orally or in writing in presence of two witnesses. The plaintiff-respondent also failed to prove that talaq was duly communicated to the appellant-defendant. There were reasonable grounds for divorce in view of desertion by appellant-defendant of plaintiff for no good reason and on her FIR, the plaintiff and his family members were arrested and they had to be in jail for sometimes. The mediation on the direction of the High Court may also be considered to satisfy the condition of conciliation effort by to persons, one from the family of husband and other from the family of wife. Needless to mention that averment in plaint that plaintiff gave divorce on 25.4.2011 cannot have a legal effect of divorce.

27. On the basis of above discussion, we are of the considered view that the conclusion arrived at by the learned court below is not legally sustainable and the impugned judgment and decree is liable to be set aside.

28. Consequently, the appeal is allowed.

29. The impugned judgment and decree dated 19.2.2015 passed by the Principal Judge, Family Court, Allahabad in Matrimonial Suit No. 562 of 2011 (Shoib Ahmad vs Smt. Nazia Begum) is reversed and set aside and consequently the suit is dismissed.

30. The record of the learned court below be sent back along with a copy of this judgment for information and necessary action.

 

 
Order Date :- 12.04.2019
 
sailesh
 

 

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