Shaik Jareena vs Shaik Dariyavali
2023 Latest Caselaw 104 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

          CIVIL REVISION PETITION No.2477 of 2019

ORDER:

The defendant before the learned trial Court filed this civil

revision petition under Article 227 of the Constitution of India

questioning the correctness of order dated 01.07.2019 of

learned Principal Junior Civil Judge, Chilakaluripet in

I.A.No.1607 of 2017 in O.S.No.195 of 2016. The respondent

herein is the plaintiff before the learned trial Court.

2. The revision petitioner is wife and respondent is her

husband. The respondent-husband filed O.S.No.195 of 2016 for

declaration that the marriage between them was dissolved. The

wife filed an application under Order VII Rule 11 and Section

151 C.P.C. seeking for rejection of the plaint and the learned

trial Court declined it. Therefore, the wife is aggrieved and has

come up with this revision.

3. Sri Shiak Dariyavali is husband, Smt. Shaik Jareena is

wife and they were married on 04.11.1999 and were blessed

with two sons and a daughter and they are governed by

Mohammedan Law and belong to Sunnisect. These facts are

not in dispute. Nearly 17 years after marriage, the husband

had filed the suit before the learned Principal Junior Civil

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Judge, Chilakaluripet in O.S.No.195 of 2016. The substance of

his claim is that wife left him in the year 2012 and his attempts

to bring reconciliation utilizing arbiters one from him, one from

the wife did not materialize and his efforts to bring

reconciliation through Anjuman Committee, Chilakaluripet did

not materialize. As directed by the Anjuman Committee, he

paid an amount of Rs.70,000/- to his wife and at some point of

time, on 22.07.2015 having received that amount of

Rs.70,000/- wife joined the matrimonial home, but there was no

change in her behaviour and her neglect caused distress and

she never followed Muslim Rites and Customs and threatened to

commit suicide and she was questioning giving away of their

one of their sons in adoption to her husband's brother and

pestering her husband to bring back the child. Then it narrated

about the another round of effort on part of the husband at

Anjuman Committee during August, 2015 to get back his wife

and then during February, 2016 the wife lodging a criminal case

in Chilakaluripet Police Station against her husband. It is then

stated that husband eventually pronounced Talaq thrice on

08.04.2016 and informed the same to the wife through a letter

dated 08.04.2016, which was served on the wife on 18.04.2016

Dr. VRKS, J C.R.P.No.2477 of 2019

and he also sent a cheque dated 07.04.2016 for an amount of

Rs.9,000/- towards iddat amount and on 20.07.2016 he

informed the pronouncement of Talaqnama to the Anjuman

Committee and served a copy of it on that Committee on

22.07.2016 and that the wife after a slumber of six months,

issued a reply notice on 06.10.2016 to which the husband

issued another rejoinder on 15.10.2016. It is on these

averments he made the following prayer in the suit:

"(a) The plaintiff therefore prays that the Hon'ble Court may be pleased to pass a decree in favour of the plaintiff and against the defendant for declaration of the dissolution of the marriage in between the plaintiff and the defendant

(b) Costs

(c) And such other relief as the Hon'ble Court deems fit and proper under the circumstances of the case."

4. As against that, the wife filed her written statement

denying all the allegations and averred about the attitude of her

husband and his actions which are against Islamic Law when

he gave away one of their sons in adoption, since adoption was

never permitted by Islamic Law and which adoption was made

without the consent of the wife and the attitude of the husband

in not allowing the wife to have conversation with her own child

Dr. VRKS, J C.R.P.No.2477 of 2019

and it mentioned about various other actions on part of the

husband and questioned the correctness of alleged Talaq and

called it as illegal as per Muslim Law and finally, she sought for

dismissal of the suit with costs.

5. It was thereafter the wife had come up with I.A.No.1607 of

2017 under Order VII Rule 11 and Section 151 C.P.C. stating

that without reasonable cause and violating the principles of

Islam, the respondent-husband sent a letter that he pronounced

Talaq thrice which is called as Talaq-E-Biddat allegedly done on

08.04.2016 and the Hon'ble Supreme Court of India by

judgment dated 22.08.2017 in Writ Petition (civil) No.288 of

2016 declared such Triple Talaq as void abinitio since such a

Talaq is violative of fundamental rights under Article 14 of

Constitution of India and against the Muslim Personal Law

(Shariat) Application Act, 1937 (for short, 'Act, 1937') and

Section 2 of it was declared as void. Since the husband filed the

suit basing on Triple Talaq, which is against law as per the said

judgment, the suit is not maintainable. It is for these reasons,

she sought for rejection of the plaint.

6. Husband filed a counter stating that at the time of filing

written statement, she did not file such an application and only

Dr. VRKS, J C.R.P.No.2477 of 2019

when the suit was coming up for cross-examination of

husband/PW.1 after delaying the matter without cross-

examining him, she has come up with this petition and this

petition is only to protract the litigation. It is then stated that

he followed Muslim Personal Law and pronounced Talaq as

referred in the plaint and that the wife received iddat amount

and suppressing those facts this petition is filed. Whether he

followed Muslim Law and procedure is to be decided at the trial

and not in this petition. For these reasons, he sought for

dismissal of the petition.

7. Learned Principal Junior Civil Judge, Chilakaluripet

having heard arguments comprehensively on both sides,

dismissed the petition on the following premises:

That the alleged Talaq was pronounced on 08.04.2016

and thereafter, the suit was filed on 04.11.2016 and the

judgment of the Hon'ble Supreme Court of India was

pronounced on 22.08.2017 in Shayara Banu v. Union of

India1. Thus, by the time of pronouncement by the Hon'ble

Supreme Court of India, the suit was pending for more than a

(2017) 9 SCC 1

Dr. VRKS, J C.R.P.No.2477 of 2019

year. It then stated that while the law laid down by the Hon'ble

Supreme Court of India is the 'Law of Land' but since the plaint

disclosed cause of action by the time the suit was filed, it could

not be stated that plaint is barred by any law as prescribed in

Order VII Rule 11 (d) C.P.C. Thus, on the ground that there was

no express bar created by law for filing the suit of the present

nature as on the date of the suit and presentation of plaint it

thought it fit to conduct the trial of the suit and decide the

matter. It also narrated para No.200 from the judgment of the

Hon'ble Supreme Court of India that from the time of that ruling

how for six months their Lordships injuncted Muslim husbands

from resorting to Talaq-E-Biddat/Triple Talaq and how their

Lordships alluded to the legislative intervention etc. Learned

trial Court also mentioned in its order that the Hon'ble Supreme

Court of India declared Triple Talaq as violative of fundamental

rights. However, it took the view that the trial should proceed

as per the law that was in force by the time of presentation of

the plaint and by then there was no express bar and therefore,

it refused to reject the plaint. Aggrieved of it, the wife has come

up with this revision stating that the petition before the trial

Court was not only filed under Order VII Rule 11 C.P.C. but also

Dr. VRKS, J C.R.P.No.2477 of 2019

filed under Section 151 C.P.C. and the learned trial Court ought

to have exercised its inherent jurisdiction under Section 151

C.P.C. to meet the ends of justice and it ought not to have

dismissed the petition. The suit was filed by the husband for

declaration that the Triple Talaq pronounced by him is valid.

Since the judgment of the Hon'ble Supreme Court of India held

such Triple Talaq is violative of fundamental rights leading to

declaration that Section 2 of Act, 1937 is void, the Triple Talaq

pronounced by husband in this case is void and therefore, there

is nothing more that remained for determination in the suit.

The approach of the learned trial Court in narrating Para

No.200 of the Hon'ble Supreme Court of India is incorrect since

that was only a minority view. The suit should not be continued

as it runs against the judgment of the Hon'ble Supreme Court of

India. For these reasons, she sought to upset the impugned

order.

8. Learned counsel for respondent submits that the validity

of claim of the husband for the prayer in the suit is a matter for

determination in the suit and there was no occasion to reject

the plaint while the suit is part-heard and the applicability of

the judgment of the Hon'ble Supreme Court of India could also

Dr. VRKS, J C.R.P.No.2477 of 2019

be considered after the trial in the suit and the reasoning of the

trial Court is in accordance with law and cannot be called as

one that resulted in miscarriage of justice. Therefore, learned

counsel seeks for dismissal of the petition.

9. Learned counsel on both sides submitted oral arguments.

10. The point that falls for consideration is:

"Whether the impugned order in refusing to reject a plaint

resulted in miscarriage of justice?"

11. Point:

The respondent/husband filed his plaint before the trial

Court on 04.11.2016. The pleaded case is that he pronounced

Talaq thrice on 08.04.2016 and informed his wife/revision

petitioner on the same day by way of a letter which he received

on 18.04.2016 and that he intimated his Talaqnama to

Anjuman Committee, Chilakaluripet and served it upon them on

22.07.2016. He mentioned that he pronounced his Talaqnama

as per Muslim Personal Law on 08.04.2016. The wife sought for

rejection of this plaint and the learned trial Court refused to

reject the plaint and thereby indicated that it would conduct

trial of the suit.

Dr. VRKS, J C.R.P.No.2477 of 2019

12. The material referred above would indicate that it is a

case of Triple Talaq pronounced on the same day and the

pleaded case indicates that it is out of a provision made in the

Personal Laws of Muslims such Triple Talaq was pronounced.

At this juncture, it is relevant to mention here about application

of Personal Law to Muslims as provided in Section 2 of Act,

1937:

"2. Application of Personal Law to Muslims.-- Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."

Thus the object of this Act is to rule out custom and usage and

apply Muslim Personal Law.

13. Triple Talaq or Talaq-E-Biddat or any other similar form

of Talaq having the effect of instantaneous and irrevocable

Dr. VRKS, J C.R.P.No.2477 of 2019

divorce pronounced by Muslim husband is dealt with in Section

2(c) of the Muslim Women (Protection of Rights on Marriage)

Act, 2019 (for short, 'the Act'). This enactment made a provision

under Section 3 of the Act, which is extracted here:

"3. Talaq to be void and illegal.-

Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal."

14. By virtue of Section 1(3) of the Act, the said Act came into

force on 19.09.2018. The prayer in the suit is for declaration of

his status that by virtue of the Triple Talaq the husband

pronounced the marriage of him with the wife stand dissolved.

Section 34 of the Specific Relief Act is the law that governs suits

concerning declaration of status.

15. On the point of Triple Talaq the Hon'ble Supreme Court of

India laid law on 22.08.2017 in Shayara Banu's case (supra 1).

In this judgment their Lordships held that Triple Talaq is

declared illegal and unconstitutional. Their Lordships while

referring to Act, 1937 held Section 2 of the said Act is

unconstitutional to the extent of dissolution of marriage by way

Dr. VRKS, J C.R.P.No.2477 of 2019

of Triple Talaq. In P.V.George v. State of Kerala2, the Hon'ble

Supreme Court of India stated that the law declared by the

Supreme Court of India will have retrospective effect unless

contrary is indicated in the judgment. A perusal of Shayara

Banu's case (2017) (supra 1) shows that there is no indication

in this judgment that the principles laid down therein would

operate prospectively. Therefore, by virtue of the principle laid

down in P.V.George's case (2007) (supra 2), the ratio in

Shayara Banu's case(supra 1) should be understood as one

that is retrospective in nature. Thus, the principle that emerges

for comprehension is that the Triple Talaq has not been in

accordance with law.

16. On the question that Shayara Banu's case(supra 1)

cannot be applied retrospectively and a Triple Talaq that was

given long prior to that judgment and a suit filed in terms of the

Triple Talaq much prior to the said judgment is maintainable

and a plaint in such cases cannot be rejected fell for direct

consideration of a Division Bench of the Hon'ble Madhya

Pradesh High Court. In Mirza Fahim Beg v. Kahkasha

(2007) 3 SCC 557

Dr. VRKS, J C.R.P.No.2477 of 2019

Anjum in First Appeal No.322 of 2018, a Division Bench of that

High Court by its judgment dated 09.05.2018 ruled that Triple

Talaq that was given on 01.08.2012 was in litigation by way of a

suit and the decision as to maintainability of such a plaint came

up in an application under Order VII Rule 11 C.P.C. where the

Court held that by virtue of judgment in Shayara Banu's case

(supra 1) Triple Talaq being unlawful, arbitrary and violative of

Article 14 of the Constitution of India, the declaration that the

divorce by Triple Talaq given by husband cannot be considered

by a civil Court and a plaint in such cases is liable to be

rejected. It was also pointed out that a declaration sought by a

Muslim husband to the effect that the divorce he gave to his

wife by way of Triple Talaq is hinged on his personal laws

contained in the Act and in such a case even without

considering the question as to prospective or retrospective

operation of ratio in Shayara Banu's case (supra 1) the view

that has to be taken is that since the Act to the extent of

dissolution of marriage by Triple Talaq became

unconstitutional, the plaint cannot be processed for trial. The

same view was reiterated by a Single Judge of Madhya Pradesh

Dr. VRKS, J C.R.P.No.2477 of 2019

High Court in Smt. Kahkashan Anjum v. Union of India in

W.P.No.7894 of 2016 decided on 09.08.2018.

17. Similar view was taken by Jammu & Kashmir and Ladakh

High Court in Showkat Hussain v. Nazia Jeelani3. Article

13(3)(a) of the Constitution of India mandates that an order is

law where the order has force of law. Article 141 of the

Constitution of India mandates that the law declared by the

Supreme Court of India shall be binding on all Courts within

the territory of India. Article 144 of the Constitution of India

mandates all authorities, civil and judicial, in the territory of

India to act in aid of the Supreme Court. Order VII Rule 11(d)

C.P.C. mandates the Court to reject a plaint where the suit

appears from the statement in the plaint to be barred by any

law.

18. The above principles would show that where on a reading

of the entire plaint if the Court finds that the facts on which a

right is claimed and a relief is prayed if barred by law such a

plaint cannot be put for trial and it has to be rejected. Law

declared by the Hon'ble Supreme Court of India is law and it

2019 SCC Online J&K 892

Dr. VRKS, J C.R.P.No.2477 of 2019

binds on all the Courts. Triple Talaq is held against law and is

considered to be unconstitutional and the statutory base for

application of persona laws, which allow Triple Talaq, were held

unconstitutional. Such declaration of law being retrospective in

nature applies to the plaint in the present case where the Triple

Talaq was claimed to have been pronounced by the husband on

08.04.2016. In such an event, allowing such plaint to undergo

the process of trial is incorrect. On assuming that every fact

that is averred in the plaint is correct, by the time the trial judge

intends to pronounce a judgment on such established facts

would it be within the power of the trial Court to hold that

divorce by the Triple Talaq is valid. By the time the judgment is

proposed to be rendered on such a plaint, the law available for

the Court would be that there was no Triple Talaq. Therefore,

the view of the trial Court that the ratio in Shayara Banu's

case (supra 1) is not applicable retrospectively is incorrect in the

light of the principles referred earlier in this judgment. The

order of the trial Court, which is challenged in this revision, has

to be held unsupportable and against law leading to miscarriage

of justice. It is in these circumstances, the claim of the wife in

this revision has to be accepted and the revision is to be

Dr. VRKS, J C.R.P.No.2477 of 2019

allowed. The point is answered in favour of the revision

petitioner.

19. In the result, this Civil Revision Petition is allowed. The

impugned order dated 01.07.2019 of learned Principal Junior

Civil Judge, Chilakaluripet in I.A.No.1607 of 2017 in

O.S.No.195 of 2016 is set aside. As a consequence, I.A.No.1607

of 2017 stands allowed and the plaint in O.S.No.195 of 2016

stands rejected in terms of Order VII Rule 11 C.P.C. There shall

be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 05.01.2023 Ivd

Dr. VRKS, J C.R.P.No.2477 of 2019

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION No.2477 of 2019

Date: 05.01.2023

Ivd