Madras High Court
M.A.Rafi Ahamed vs Vaseela Banu on 25 October, 2024
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1 C.R.P.(MD)No.2255 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25.10.2024
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
C.R.P.(MD).No.2255 of 2023
and
C.M.P.(MD)No.11579 of 2023
M.A.Rafi Ahamed ... Petitioner / Appellant /
Respondent
Vs.
Vaseela Banu ... Respondent /Respondent/
Petitioner
PRAYER : Civil Revision Petition filed under Article 227 of the
Constitution of India, to call for the records relating to the order dated
02.12.2022 made in Crl.A.No.47 of 2021 on the file of the I Additional
District and Sessions Judge, Tirunelveli confirming the order dated
23.02.2021 passed in D.V.C.No.2 of 2018 on the file of the Judicial
Magistrate Court No.1, Tirunelveli and set aside the same.
For Petitioner : Mr.K.C.Maniyarasu
For Respondent : Mr.D.Srinivasa Ragavan
***
https://www.mhc.tn.gov.in/judis
2 C.R.P.(MD)No.2255 of 2023
ORDER
The marriage between the petitioner and the respondent was
solemnised as per the Islamic rites and customs on 18.04.2010 at
Palayamkottai. A male child was born through the wedlock. The parties
are doctors by profession. The respondent herein filed DVC No.2 of
2018 on the file of the Judicial Magistrate No.I, Tirunelveli under
Sections 12(1) and (2), 18(a) and (b), 19(a), (b) and (c), 20(1)(d) and 22
of the Protection of Women from Domestic Violence Act, 2005. The
learned trial Magistrate vide order dated 23.02.2021 directed the
petitioner herein to pay a sum of Rs.5 Lakhs as compensation for having
inflicted domestic violence on the complainant and a sum of Rs.25,000/-
per month towards the maintenance of the minor child. Protection order
was also granted. Aggrieved by the said order, the revision petitioner
filed Criminal Appeal No.47 of 2021 before the I Additional District and
Sessions Judge, Tirunelveli. The appeal was dismissed on 02.12.2022.
Questioning the same, this civil revision petition came to be filed under
Article 227 of the Constitution of India.
https://www.mhc.tn.gov.in/judis
2.The learned counsel appearing for the revision petitioner
reiterated all the contentions set out in the memorandum of grounds. He
submitted that the complainant / respondent herein is a Government
doctor and that she was never subjected to any kind of domestic violence.
He called upon this Court to set aside the impugned order and grant relief
as prayed for.
3.Per contra, the learned counsel appearing for the complainant
submitted that the impugned orders are well reasoned and that they do
not call for interference.
4.I carefully considered the rival contentions and went through the
materials on record.
5.As already noted, the parties got married on 18.04.2010. The
relationship between them came under strain. The complainant concedes
that the revision petitioner sent the first Talaq notice dated 03.08.2017
and the second Talaq notice dated 11.09.2017. The revision petitioner
claimed that the third Talaq notice was sent on 11.11.2017 following
https://www.mhc.tn.gov.in/judis
which the Shariat Council of Tamil Nadu Thowheed Jamath granted
divorce certificate on 29.11.2017. He also admits having married one
Halima on 28.01.2018. On the other hand, the complainant / wife asserts
that her marriage with the revision petitioner was not dissolved and that
the third Talaq notice was never received and that during the subsistence
of their marriage, the revision petitioner marrried Halima.
6.The revision petitioner is a well-qualified doctor who was
employed in Apollo Hospital and whose family is also possessed of
considerable properties. There is no serious challenge to the maintenance
order passed in favour of the minor child. The only question that calls for
consideration is whether the courts below were justified in awarding
compensation of Rs.5.00 lakhs to the complainant.
7.As per the definition of the term “domestic violence” set out in
Section 3 of the Central Act 43 of 2005, any act or conduct of the
husband which injures or causes harm, whether physical or mental to the
wife shall constitute domestic violence. If a Hindu/Christian/Parsi/Jew
husband contracts second marriage during the subsistence of the first
https://www.mhc.tn.gov.in/judis
marriage, it would constitute cruelty besides being an offence of bigamy.
It would obviously be considered an act of domestic violence entitling
the wife to claim compensation under Section 12 of the Act. Will this
proposition apply in the case of Muslims ?. The answer is “Yes”. It is
true that a Muslim male is legally entitled to contract as many as four
marriages. For this legal right or liberty, there is only a limited
hohfeldian jural correlative on the part of the wife. The wife cannot stop
the husband from entering into a second marriage. She, however, has the
right to seek maintenance and refuse to be a part of the matrimonial
household. The Hon'ble Division Bench of Karnataka High Court in the
decision reported in ILR 2021 KARNATAKA 746 (Yusuf Patel V. Ramjanbi)
held that though contracting a second marriage by a Muslim during the
subsistence of the first marriage may be lawful, it would amount to
enormous cruelty to the first wife. It was also held that the aggrieved
wife can seek dissolution of marriage. Once it is concluded that
marrying another woman during the subsistence of the first marriage
would constitute cruelty, the corollary is that the first wife is entitled to
claim damages and compensation.
https://www.mhc.tn.gov.in/judis
8.Of course, the revision petitioner claims that he entered into
second marriage only after dissolving his first marriage with the
complainant by pronouncement of talaq in the manner laid down by law.
This claim has to be tested. It is true that there is material to show that
the first talaq notice was issued on 03.08.2017 and the second talaq
notice was issued on 11.09.2017. There is dispute between the parties as
to whether the third talaq notice was issued. While the husband would
claim that the third talaq notice was sent on 11.11.2017, the
complainant/wife denies the same. It cannot be denied that the marriage
between the parties can be taken to have been dissolved only after the
pronouncement of the third talaq. In this case, no material has been
placed by the revision petitioner/husband that the third talaq notice was
served on the complainant/wife. The complainant has been consistently
asserting that her marriage with the petitioner is still in subsistence. A
mere look at the long cause title of the complaint would show that the
complainant had described herself as the wife of the revision petitioner.
9.In Shamim Ara v. State of Uttar Pradesh (2002) 7 SCC 518),
the Hon'ble Supreme Court held as follows :-
https://www.mhc.tn.gov.in/judis
“11. V. Khalid, J., as His Lordship then was, observed
in Mohd. Haneefa v. Pathummal Beevi [1972 KLT 512] :
(KLT p. 514, para 5)
“… I feel it my duty to alert public opinion
towards a painful aspect that this case reveals. A
Division Bench of this Court, the highest court for
this State, has clearly indicated the extent of the
unbridled power of a Muslim husband to divorce
his wife. I am extracting below what Their
Lordships have said in Pathayi v. Moideen [1968
KLT 763] :
‘The only condition necessary for the valid
exercise of the right of divorce by a husband is that
he must be a major and of sound mind at that time.
He can effect divorce whenever he desires. Even if
he divorces his wife under compulsion, or in jest,
or in anger that is considered perfectly valid. No
special form is necessary for effecting divorce
under Hanafi law. … The husband can effect it by
conveying to the wife that he is repudiating the
alliance. It need not even be addressed to her. It
takes effect the moment it comes to her
knowledge.’
Should Muslim wives suffer this tyranny for all times?
Should their personal law remain so cruel towards these
https://www.mhc.tn.gov.in/judis
unfortunate wives? Can it not be amended suitably to
alleviate their sufferings? My judicial conscience is
disturbed at this monstrosity. The question is whether the
conscience of the leaders of public opinion of the
community will also be disturbed.”
12. In an illuminating judgment, virtually a research
document, the eminent Judge and jurist V.R. Krishna Iyer,
J., as His Lordship then was, has made extensive
observations. The judgment is reported as A. Yousuf
Rawther v. Sowramma [AIR 1971 Ker 261 : 1970 Ker LT
477] . It would suffice for our purpose to extract and
reproduce a few out of the several observations made by His
Lordship: (AIR pp. 264-65, paras 6-7)
“6. The interpretation of a legislation, obviously
intended to protect a weaker section of the
community, like women, must be informed by the
social perspective and purpose and, within its
grammatical flexibility, must further the beneficent
object. And so we must appreciate the Islamic ethos
and the general sociological background which
inspired the enactment of the law before locating
the precise connotation of the words used in the
statute.
7. … Since infallibility is not an attribute of the
judiciary, the view has been ventured by Muslim
https://www.mhc.tn.gov.in/judis
jurists that the Indo-Anglican judicial exposition of
the Islamic law of divorce has not exactly been just
to the Holy Prophet or the Holy Book. Marginal
distortions are inevitable when the Judicial
Committee in Downing Street has to interpret
Manu and Muhammad of India and Arabia. The
soul of a culture — law is largely the formalized
and enforceable expression of a community's
cultural norms — cannot be fully understood by
alien minds. The view that the Muslim husband
enjoys an arbitrary, unilateral power to inflict
instant divorce does not accord with Islamic
injunctions. … It is a popular fallacy that a Muslim
male enjoys, under the Quoranic law, unbridled
authority to liquidate the marriage. ‘The whole
Quoran expressly forbids a man to seek pretexts for
divorcing his wife, so long as she remains faithful
and obedient to him, “if they (namely, women)
obey you, then do not seek a way against
them”.’ (Quoran IV:34). The Islamic ‘law gives to
the man primarily the faculty 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. If
https://www.mhc.tn.gov.in/judis
he abandons his wife or puts her away in simple
caprice, he draws upon himself the divine anger, for
the curse of God, said the Prophet, rests on him
who repudiates his wife capriciously’. …
Commentators on the Quoran have rightly observed
— and this tallies with the law now administered in
some Muslim countries like Iraq — that the
husband must satisfy the court about the reasons for
divorce. However, Muslim law, as applied in India,
has taken a course contrary to the spirit of what the
Prophet or the Holy Quoran laid down and the
same misconception vitiates the law dealing with
the wife's right to divorce. … After quoting from
the Quoran and the Prophet, Dr Galwash concludes
that ‘divorce is permissible in Islam only in cases
of extreme emergency. When all efforts for
effecting a reconciliation have failed, the parties
may proceed to a dissolution of the marriage by
‘talaq’ or by ‘khula’. … Consistently with the
secular concept of marriage and divorce, the law
insists that at the time of talaq the husband must
pay off the settlement debt to the wife and at the
time of khola she has to surrender to the husband
her dower or abandon some of her rights, as
compensation.”
https://www.mhc.tn.gov.in/judis
13. There is yet another illuminating and weighty
judicial opinion available in two decisions of the Gauhati
High Court recorded by Baharul Islam, J. (later a Judge of
the Supreme Court of India) sitting singly in Jiauddin
Ahmed v. Anwara Begum [(1981) 1 Gau LR 358] and later
speaking for the Division Bench in Rukia Khatun v. Abdul
Khalique Laskar [(1981) 1 Gau LR 375] . In Jiauddin
Ahmed case [(1981) 1 Gau LR 358] 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 (para 6). Quoting in the judgment several Holy
Quranic verses and from commentaries thereon by well-
recognized scholars of great eminence, the learned Judge
expressed disapproval of the statement that “the whimsical
https://www.mhc.tn.gov.in/judis
and capricious divorce by the husband is good in law,
though bad in theology” and observed that such a statement
is based on the concept that women were chattel belonging
to men, which the Holy Quran does not brook. The correct
law of talaq as ordained by the Holy Quran is
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 (para 13). In Rukia Khatun case [(1981) 1 Gau LR
375] 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. The Division Bench
expressly recorded its dissent from the Calcutta and
Bombay views which, in their opinion, did not lay down the
correct law.
...
15. The plea taken by Respondent 2 husband in his
written statement may be renoticed. Respondent 2 vaguely
makes certain generalized accusations against the appellant
wife and states that ever since the marriage he found his
https://www.mhc.tn.gov.in/judis
wife to be sharp, shrewd and mischievous. Accusing the
wife of having brought disgrace to the family, Respondent 2
proceeds to state, vide para 12 (translated into English) —
“The answering respondent, feeling fed up with all such
activities unbecoming of the petitioner wife, has divorced
her on 11-7-1987.” The particulars of the alleged talaq are
not pleaded nor the circumstances under which and the
persons, if any, in whose presence talaq was pronounced
have been stated. Such deficiency continued to prevail even
during the trial and Respondent 2, except examining
himself, adduced no evidence in proof of talaq said to have
been given by him on 11-7-1987. There are no reasons
substantiated in justification of talaq and no plea or proof
that any effort at reconciliation preceded the talaq.
16. We are also of the opinion that the talaq to be
effective has to be pronounced. The term “pronounce”
means to proclaim, to utter formally, to utter rhetorically, to
declare, to utter, to articulate (see Chambers 20th Century
Dictionary, New Edition, p. 1030). There is no proof
of talaq having taken place on 11-7-1987. What the High
Court has upheld as talaq is the plea taken in the written
statement and its communication to the wife by delivering a
copy of the written statement on 5-12-1990. We are very
clear in our mind that a mere plea taken in the written
statement of a divorce having been pronounced sometime in
https://www.mhc.tn.gov.in/judis
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. Respondent 2 ought to have adduced evidence and
proved the pronouncement of talaq on 11-7-1987 and if he
failed in proving the plea raised in the written statement, the
plea ought to have been treated as failed. We do not agree
with the view propounded in the decided cases referred to
by Mulla and Dr Tahir Mahmood in their respective
commentaries, wherein a mere plea of previous talaq taken
in the written statement, though unsubstantiated, has been
accepted as proof of talaq bringing to an end the marital
relationship with effect from the date of filing of the written
statement. A plea of previous divorce taken in the written
statement cannot at all be treated as pronouncement
of talaq by the husband on the wife on the date of filing of
the written statement in the Court followed by delivery of a
copy thereof to the wife. So also the affidavit dated
31-8-1988, filed in some previous judicial proceedings not
inter partes, containing a self-serving statement of
Respondent 2, could not have been read in evidence as
relevant and of any value.”
10.This Judgment has been holding the field and has been
approvingly referred to in several subsequent decisions of the Hon'ble
https://www.mhc.tn.gov.in/judis
Supreme Court. Talaq thus involves a certain procedure. In the very
nature of things, strict compliance has to be insisted upon. If the husband
claims that he had divorced the first wife by properly pronouncing talaq
three times, and it is disputed by the wife, the question arises if the
marriage has been validly dissolved. The issue cannot be left to the
unilateral determination of the husband. That would amount to the
husband becoming a judge of his own cause. The only appropriate and
legally permissible course would be to call upon the husband to obtain a
judicial declaration that the marriage has been validly dissolved. So long
as such a declaration has not been obtained from the jurisdictional court,
the resultant effect is that the marriage is deemed to subsist. The burden
is entirely on the husband to satisfy the Court that he had pronounced the
talaq in the manner approved by law. It is he who must go to the court
and obtain declaration. This of course would be necessary only if the
wife disputes the validity of the talaq pronounced by the husband.
11.Let me come to the case facts. It is seen that it was the
complainant who alone stepped into the witness box and deposed at
https://www.mhc.tn.gov.in/judis
length about her woes and as to how she suffered at the hands of the
husband. She even alleged that the revision petitioner subjected her to
unnatural sex. She had elaborated on other factual aspects of cruelty. As
many as 20 Exhibits were marked on her side. Though the complainant
was cross examined, she could not be shaken. Even though serious
allegations were made against him, the husband did not bother to
examine himself as a witness. No evidence was adduced on his side.
12.The certificate dated 29.11.2017 issued by Shariat Council,
Tamil Nadu Thowheed Jamath makes a shocking reading. It states that
the revision petitioner submitted petition before the Shariat Council for
obtaining divorce (talaq) and that steps were taken to reconcile the
parties. It faults the respondent herein for not extending her cooperation.
Letters were sent on 22.07.2017, 18.10.2017 and 11.11.2017. Shariat
Council finally records that since the parties are living separately for
around five months and since Vasila Banu did not extend cooperation,
the talaq pronounced by the revision petitioner in the presence of two
witnesses, namely, Abdul Majith and Shehana would constitute valid
divorce. I fail to understand as to how the revision petitioner's father
https://www.mhc.tn.gov.in/judis
could have stood as witness for the pronouncement of talaq before the
Shariat Council. There is a saying in Tamil “Velikku Onan Satchi,
Vendhadhuku Chockan Satchi”. The chamelion is the witness of the
hedge, the cook boy will testify to the food being well boilt. Father
being a witness for his son's pronouncement of talaq is akin to this. The
certificate issued by the Chief Kazi of the Shariat Council of Tamil Nadu
Thowheed Jamath concludes that Shariat judgment is accordingly
delivered. Only courts duly constituted by the State can deliver
judgments. Shariat Council is a private body and not a court. The
learned counsel for the respondent also submits that the very act of
issuing such certificate by the Shariat Council is contemptuous as it runs
counter to the interim order granted in Bader Sayeed v. UOI (W.P No.
13539 of 2018 on 10.01.2017).
13.The revision petitioner had failed to obtain any judicial
declaration that his marriage with the respondent herein was legally
dissolved. I conclude that the marriage between the complainant and the
revision petitioner is still holding good. Even on the own showing of the
revision petitioner, he married one Halima on 28.01.2018. The revision
https://www.mhc.tn.gov.in/judis
petitioner being a Muslim is at liberty to do so. But then, he has to pay
for his act. The act of second marriage would have caused considerable
emotional distress and pain to the complainant. Without doubt, it
amounts to cruelty. The Courts below were therefore justified in
awarding compensation for a sum of Rs.5 Lakhs. Interference with the
well considered orders passed by the courts below is not warranted.
14.This civil revision petition stands dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
25.10.2024
Index : yes/No
Internet:Yes/No
PMU/skm
To
1. The I Additional District and Sessions Judge,
Tirunelveli.
2. The Judicial Magistrate No.1,
Tirunelveli.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU/skm
and
25.10.2024
https://www.mhc.tn.gov.in/judis
