Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Shamim Ara Vs. State of U.P. and Anr.
AIR2002SC3551, (2002)7SCC518
Hon’ble Judges/Coram: R.C. Lahoti and P. Venkatarama Reddi, JJ.
Decided On: October 1st, 2002
FACTS:-
The appellant and the respondent No. 2 were married some time in 1968 according to Muslim Shariyat Law and 4 sons were born out of the wedlock. On April 12th, 1979, the appellant on behalf of herself and her 2 minor children filed an application under Section 125 Cr.P.C. complaining of desertion and cruelty on part of respondent No. 2. By order dated April 3rd, 1993, the Family Court at Allahabad refused to grant any maintenance to the appellant on the ground that she was already divorced by the respondent. Respondent No. 2 in his written statement dated December 5th, 1990, denied all averments made in the application. He claimed to have divorced the appellant on July 11th, 1987. The appellant emphatically denied this. The learned Presiding Judge of the Family Court referred to some affidavit dated August 31st, 1988, filed by respondent No. 2 in some civil suit to which the appellant was not a party in which the respondent had stated that he had divorced the appellant 15 months before. This was taken to be ample corroboration of divorce. The High Court held that the communication of the divorce stood completed on December 5th, 1990. The appellant appealed to the Supreme Court through Special Leave.
ISSUE: –
Whether the appellant can be said to have been divorced and the said divorce communicated to the appellant so as to become effective from December 5th, 1990?
JUDGMENT:-
The Court adverted to various scholarly treatises on Mohammedan law and judgments from other Court to determine the stand of the law on this particular issue. According to such treatises, commentaries and judgments, a Muslim husband can divorce his wife by his unilateral action and without the intervention of the Court. This power is known as power to pronounce a talaq. The Court observed that such liberal view of talaq bringing to an end the marital relationship between Muslim spouses and heavily loaded in favour of Muslim husbands has met with criticism and strong disapproval at the hands of eminent jurists.
Divorce is permissible in Islam only in cases of extreme emergency. 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 other from the husband’s. If the attempts fail, talaq may be effected. Respondent No. 2 vaguely makes certain generalized accusations against the wife-appellant and states that ever since the marriage he found the wife to be sharp, shrewd and mischievous. 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. There are no reasons substantiated for justification of talaq and no plea or proof that any attempt at reconciliation preceded the talaq.
Talaq to be effective has to be pronounced. 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 written statement to the wife. Respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq and if he failed in proving so, the plea ought to have been treated as failed.
HELD:-
Neither the marriage was dissolved nor did the responsibility of the respondent to pay maintenance come to an end. A mere plea taken of a divorce pronounced in the past does not by itself effectuate a talaq on coming to the knowledge of the wife.
To Get Legal Opinion from Advocates/ Legal Experts, Please click here
To Get Legal Opinion from Retired Hon’ble Judges, Please click here
