Shamim Bano vs Shahabuddin
1989 Latest Caselaw 486 Del

JUDGMENT

Maheah Chandra, J.

(1) The petitioner Smt. Shamim Bano was married to respondent Shri Shahabuddin way back on 9th September, 19S2 and it is alleged that thereafter the respondent-husband divorced the petitioner on 3rd November, 1984 at her residence by pronouncing the words 'TALAK Talak TALAK' in the presence of her parents and one Mr. Bashir son of Allah Maher. resident of 12, Banna Peir, Abdul Fazal Colony, New Delhi and also one Mr. Ranbir son of Gajraj. The petitioner has now filed a petition under Section 2 of the Dissolution of Muslim (Marriage) Act. 1939 (hereinafter referred to as 'the Act') for dissolution of the marriage with the respondent. The said petition was dismissed by Mrs. Kamlesh Sabbharwal, Sjic vide her order dated 23rd May, 1988 as not maintainable. Feeling aggrieved this revision petition has been filed by the petitioner.

(2) Notice to show cause was issued and served upon the respondent but the respondent has not appeared to contest this revision petition. The revision petition is admitted. Being a short matter I now propose to dispose it off. I have heard the learned counsel for the petitioner.

(3) The short question which arises in this revision petition is whether a petition under Section 2 of the Act is maintainable after the wife has already been divorced in accordance with Muslim Law and to my mind the question must be answered in the negative Section 2 of the Act reads as under: "2. Grounds for decree for dissolution of marriage:-A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:-

(I)that the whereabouts of the husband have not been known for a period of four years ;

(II)that the husband has neglected or has failed to provide for her maintenance for a period of two years ;

(III)that the husband has been sentenced to imprisonment for a period of seven years or upwards ;

(IV)that the husband has failed to perform, without, reasonable cause, his marital obligation for a period of three years ;

(V)that the husband was impotent at the time of the marriage and continues to be so ;

(VI)that the husband has been instance for a period of two years or is suffering from leprosy or a virulent venereal disease ;

(VII)that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years ; Provided that the marriage has not been consummated ;

(VIII)that the husband treats her with cruelty, that is to say: -

(A)habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or

(B)associates with women of evil repute or leads an infamous life, or

(C)attempts to force her to lead an immoral life, or

(D)disposes of her property or prevents her exercising her legal rights over it, or

(E)obstructs her in the observance of her religious profession or practice, or

(F)if he has more wives than .one, does not treat her equitably in accordance with the injunctions of the Koran ;

(IX)on any other ground which is recognised as valid for the dissolution of marriage under Muslim law ; Provided that-

(A)no decree shall be passed on ground (ii) until the sentence has becomes final;

(B)a decree passed on ground (i) shall not take effect for a period of six months from the dale of such decree, and if the husband appears either in person or through an authorised agent within that period and satisfies the court that he is prepared to perform his conjugal duties, the court shall set aside the said decree ; and

(C)before passing a decree on ground (v) the court shall, on application by the husband, make an order requiring the husband to satisfy the court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the court within such period, no decree shall be passed on the said ground".

(4) From the perusal of Section 2 of the Act it is evident that its prerequisite is a 'subsisting marriage'. Where the marriage was not subsisting, Section 2 of the Act is not attached. The petitioner herself alleges in her application for divorce that the respondent bad divorced Shamim Bano, petitioner on 3rd November. 1984 by pronouncing 'TALAK Talak TALAK'. There being no subsisting marriage between the parties at the time of filing of this petition under Section 2 of the Act, the petition is not clearly maintainable.

(5) Under the Muslim law a marriage can be dissolved by death of spouse or by the Act of parties or by judicial process. It has been observed by A.A. Fyzee in his 'Outlines of Mohammaden Law' (Fourth edition) at page 150 as follows : "A muslim husband of sound mind may divorce his wife when ever be so desires without assigning any cause. Such a proceeding, although abominable, is nevertheless lawful. The divorce operates from the time of the pronouncement of talaq".

(6) Similarly in para 308 of Mohammaden Law by Malla (18 edition) it is observed: "ANY Mohammaden of sound mind, who baa attained puberty may divorce his wife whenever he dories with out assigning any cause".

(7) It is further observed in para 310 thereof that 'A talak may be effected (1) orally (by spoken words) or (2) by a written document called a talaknama'. In oral talak, no particular from of words is prescribed for effecting a talak. One of the accepted model of oral divorce (talak) by Mohammaden is by pronouncing Talak, Talak, Talak in presence of the wife. When a muslim husband divorces his wife by pronouncing talak thrice, this would be a valid mode of divorcing a wife and would effectively dissolve the marriage. In such an event marriage stands instantly dissolved and that having been done, application for divorce would not lie thereafter.

(8) In the case in band the petitioner was divorced by her husband on 3rd November, 1984 by pronouncing Talak Talak Talak in the presence of witnesses and petitioner and consequently thereafter marriage between the petitioner and the respondent stood dissolved and the petitioner was no longer wife of the respondent. Hence the provisions of Section 2 of the Act cannot now be availed of by her for getting divorce once over again. Mere fact that some restraint order by Ghaziabad Court has been passed restrain- ing her from re-marrying can be of no consequence and would not make this application under Section 2 of the Act maintainable.

(9) In view of my discussion above, I hold that the impugned order does not suffer from any infirmity and does not call for any interference. The revision petition is dismissed.