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Case Number
Attorney(S)
  • A.Dasgupta
  • D.Choudhury
  • P.K.Baruah
  • P.Talukdar
  • T.N.Phukan
Judges
  • Manisana
  • S Roy
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Citation Codes
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citation codes
Case Number
Attorney(S)
  • A.Dasgupta
  • D.Choudhury
  • P.K.Baruah
  • P.Talukdar
  • T.N.Phukan
Judges
  • Manisana
  • S Roy
Acts
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Smart Summary

Judgment Summary — Manisana, J.

Factual and Procedural Background

This revision petition challenges an order of the Principal Judge of the Family Court at Gauhati dated 7-8-1992 in Case No. FC(Cril) No. 111/92/74-M/90. The petitioner, Zeenat Fatema Rashid, married Md. Iqbal Anwar on 2-12-1987 according to Muslim rites. They cohabited at the husband's residence and a son was born on 3-11-1989. The petitioner alleged ill-treatment by the husband and in-laws and instituted a criminal case on 13-8-1990 (Case No. 87 of 1990). She also filed a claim under Section 125 Cr. P.C. on 29-8-1990 seeking maintenance for herself and the minor child. The respondent husband contended in his written statement that he had divorced the petitioner on 31-8-1990.

The Family Court concluded that a divorce had been duly effected and directed that claims for maintenance be dealt with under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986; interim maintenance for the child was continued pending final disposal. The present revision challenges the Family Court's finding on the existence of a valid divorce.

Legal Issues Presented

  1. Whether a divorce by talak had been duly effected between the parties.
  2. Whether, under Mohammedan law, a husband may divorce his wife at his "whim and caprice" (i.e., whether such arbitrary exercise of talak is legally effective).
  3. Whether a photostat/copy of a talaknama produced by the husband constituted admissible and sufficient proof of divorce.
  4. Whether a husband's statement in a written statement or deposition, asserting that he had divorced his wife, operates as an effective talak (deemed to take effect from the date of that pleading or deposition) where the talak itself is not otherwise proved.

Arguments of the Parties

Petitioner's Arguments (Mr. Phukan)

  • A Mohammedan husband cannot divorce his wife at his whim and caprice; divorce must not be arbitrary.

Respondent's Arguments (Mr. Barua / Mr. P.K. Barua)

  • Counsel relied on earlier decisions of other High Courts which held that a Mohammedan husband may divorce his wife at his whim and caprice and urged that those decisions be followed; suggested referral to a larger Bench or review should not disturb long-standing position of law.
  • Even if the talak pleaded is not proved by documentary or corroborative evidence, the husband has admitted divorce in his written statement and deposition; relying on a line of authorities, counsel argued such admissions operate as an expression or declaration of talak and would make the divorce effective at least from the date of filing the written statement or date of the statement on oath.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sarabai v. Rabiabat, ILR 30 Bom. 537 Held that there may not be a particular cause for divorce and that mere whim may be sufficient (good in law though bad in theology). Cited as an authority supporting the position that talak may be arbitrary; the court considered this position but did not accept it as governing in this Court's view.
Asha Bibi v. Kadir Ibrahim, ILR 33 Mad. 22 Held that although arbitrary or unreasonable exercise of divorce is condemned in the Quran as a spiritual offence, it does not affect the legal validity of a divorce duly effected by the husband. Cited to show an alternative view that spiritual condemnation does not negate legal effect; the court noted this authority but declined to follow its conclusion as determining law in this Court.
Ahmed Kasim Molla v. Khatun Bibi, ILR 59 Cal. 833 Calcutta High Court held that any Mohammedan husband may divorce his wife at his mere whim and caprice. Cited as part of earlier High Court jurisprudence endorsing arbitrary talak; the court referenced it and expressly disagreed with that approach.
Jiauddin Ahmed v. Anwara Begum, (1981) 1 OLR 358 (Single Judge) Held that divorce must be for a reasonable cause and should be preceded by an attempt at reconciliation by two arbiters (one chosen by each side). The court agreed with and followed this Court's Single Judge decision as representing the proper approach to talak.
Rukia v. Abdul Khalique, (1981) 1 GLR 375 (Division Bench) Division Bench approval of the Single Judge decision (Jiauddin Ahmed) that divorce must be for reasonable cause and preceded by reconciliation attempts. The court expressly aligned with the Division Bench's approval and relied on that position as settled law of this Court.
Ashok Dulichand v. Madhavlal Dube, AIR 1975 SC 1748 Established that a photostat copy of a document is admissible as secondary evidence if it is proved to be genuine. The court acknowledged this principle but held that in the present case the foundation for admission of the photostat copy as secondary evidence had not been laid; therefore the talaknama was not proved by that photostat copy.
Asmat Ullah v. Mst. Khatun Unnisa, AIR 1939 All 592 Held that when a husband, in proceedings under Section 125 Cr.P.C., states in the written statement that he has divorced his wife, that statement operates as an acknowledgment or declaration of talak and the divorce takes effect from the date of the statement. Cited by respondent to support the contention that the husband's written admission would effect divorce; the court reviewed these authorities and rejected this line of cases for reasons explained in the judgment.
Wahab Ali v. Qamro Bi, AIR 1951 Hyd. 117 One of the authorities holding that a husband's statement in pleadings or evidence operates as effective talak with effect from that date. Cited by respondent; the court declined to accept this proposition and refused to treat pleading or deposition statements as effective talak where talak was otherwise unproved.
Chand Bi v. Bandesha, AIR 1961 Bom. 121 Authority in the line that an admission in written statement/deposition that husband had divorced wife amounts to effective talak. Cited by respondent; court considered the line of cases but rejected their reasoning as inconsistent with the distinction between pleading and proof and the Court's requirement for pre-divorce reconciliation.
Abdul Shakoor v. Kulsum, 1962(1) CrLJ 247 Part of the line holding that a husband's statement in proceedings under Section 125 Cr.P.C. operates as a declaration of talak effective from the date of the statement. Cited by respondent; the court declined to follow this principle and explained why a pleading cannot substitute for proof of a material fact such as talak.
Mohammad Ali v. Fareedunnisa, AIR 1970 AP 199 Another authority cited for the proposition that a husband's admission in pleadings/evidence can be treated as effective talak. Cited by respondent; the court expressly rejected the contention that such admissions in pleadings or deposition should operate as talak in light of the distinction between pleading and proof and the Court's view on pre-divorce requirements.

Court's Reasoning and Analysis

The court's analysis proceeded in several connected steps, applying legal principle to the facts before it:

  1. Nature of talak under Mohammedan law: The court accepted the established doctrinal position that divorce by talak may be effected orally or in writing (talaknama) and that no particular form of words is prescribed; the words must indicate an intention to dissolve the marriage (reference made to Mulla's Principles of Mohammedan Law).
  2. Religious and statutory context urging conciliation: The court emphasized provisions of the Quran (as interpreted in commentary cited) and the purpose of Family Courts under Section 7 of the Family Courts Act, 1984, to promote reconciliation and settlement in matrimonial disputes. On this basis the court concluded that the Quran discourages divorce and permits it only in extreme cases after pre-divorce conciliation.
  3. Legal conclusion on arbitrary talak: On the foregoing foundations, the court rejected the contention that a Mohammedan husband may validly divorce his wife at his whim and caprice. The court held that divorce must be for a reasonable cause and must be preceded by a pre-divorce conference aimed at reconciliation. The court expressly aligned itself with its own earlier decisions (Single Judge and Division Bench) that had taken that view, and declined to follow contrary High Court decisions which permitted arbitrary talak.
  4. Evidentiary assessment of the alleged talaknama: The husband produced a photostat copy of a talaknama and asserted oral pronouncements of "talak" on three occasions. The court applied the rule from Ashok Dulichand that a photostat copy is admissible as secondary evidence only if its genuineness is proved. It found that the necessary foundation for admitting the photostat as secondary evidence had not been laid and that no attested copy of any registration entry had been produced. There was also no corroborative evidence for the oral pronouncement. The written statement indicated the husband's case was based on the talaknama. Given these evidentiary deficiencies, the court held the alleged talak had not been proved.
  5. Rejection of the proposition that pleading/admissions alone effect talak: The court examined authorities relied upon by the respondent which hold that a husband's admission in written statement or deposition that he has divorced his wife operates as a declaration of talak effective from the date of that statement. The court rejected this line of reasoning on the basis that a pleading is not proof: pleading is an allegation intended to give notice, whereas proof requires evidence. An averment in a pleading cannot substitute for evidence of a material fact. Treating pleadings or oral admissions in a Section 125 Cr.P.C. proceeding as substituting for proof of talak would be contrary to the rules of pleading and proof and contrary to the court's conclusion that talak must follow pre-divorce conciliation. For these reasons the court refused to treat the husband's admissions as constituting effective talak.
  6. Relief and procedural disposition: Because the court found that talak was not proved and that there was no evidence of pre-divorce conference, it concluded the Family Court's finding that divorce had been duly effected was incorrect. The pertinent findings on divorce were set aside and the matter was remitted to the Family Court for fresh disposal in accordance with law.

Holding and Implications

Holding: The court set aside the Family Court's finding regarding divorce in the order dated 7-8-1992 in Case No. FC(Cril) 111/92/74-M/90 and allowed the revision petition. The matter was sent back to the Family Court for fresh disposal in accordance with law.

Implications:

  • Direct effect on parties: The Family Court's finding that a divorce had been duly effected was reversed; the question of divorce and consequent questions (including the proper forum and law for maintenance) must be re-investigated and decided afresh by the Family Court following the legal principles stated by this court.
  • On legal principle: The court affirmed this Court's earlier view that a Mohammedan husband cannot validly divorce his wife merely at whim and caprice; divorce ought to be for a reasonable cause and preceded by a pre-divorce reconciliation effort. The court refused to follow contrary decisions of some other High Courts and declined to treat a party's pleading or admission in Section 125 proceedings as a substitute for proof of talak.
  • Precedential note: The judgment reiterates and endorses this Court's prior decisions on the need for reconciliation and reasonableness in talak. The court framed the evidentiary standard for proving a talaknama (including admissibility and foundation for secondary evidence) and rejected reliance solely on admissions in pleadings or deposition as effecting talak.

Final Disposition: The revision petition was allowed; the Family Court's findings on divorce were set aside and the case remitted for fresh disposal in accordance with law.

Show full summary ...

    Zeenat Fatema Rashid v. Md. Iqbal Anwar

    JUDGMENT Manisana, J.

    1. This revision petition arises from an order of the Principal Judge of the Family Court at Gauhati made on 7-8-92 in Case No. FC(Cril) No. 111/92/74-M/90.

    2. Facts, -- The case of the petitioner, in brief, is thus. The petitioner Zeenat Fatema Rashid married Md. Iqbal Anwar, on 2-12-87, according to Muslim rites. After the marriage they lived as husband and wife at husband's residence. She had borne him a son on 3-11-1989. After that she was ill-treated by her husband and her in-law. She, therefore, instituted a criminal case on 13-8-1990 being case No. 87 of 1990. Finding no other alternative, she had to leave her husband's house and had to file a criminal case for getting back her properties and those properties were recovered on 31-8-1990. She also filed a case under Section 125, Cr. P.C., against her husband on 29-8-1990 claiming maintenance for herself and her minor child. Md. Iqbal Anwar (the respondent contested the case by filing written statement. His main defence is that he had divorced his wife, the petitioner herein, on 31-8-1990.

    3. The Family Court has held that there had been a divorce duly effected and, therefore, claim for maintenance would be determined under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. With regard to maintenance of child, the Family Court has directed that interim maintenance granted would continue pending final disposal of the case. Hence this petition.

    4. The question which arises for consideration is whether there had been a divorce duly effected. Under the Mohammedan Law, divorce by talak may be effected either orally (by spoken words) or by a written document called a talaknama. No particular form of words is prescribed for effecting a talak, but the words of divorce must indicate an intention to dissolve the marriage (see Mulla's Principles of Mohammedan Law).

    5. Mr. Phukan, the learned Counsel for the petitioner, has contended that a Mohammedan husband cannot divorce his wife at his whim and caprice. The next question which therefore, arises for consideration is whether a Mohammedan husband can divorce his wife at his whim and caprice. In Sarabai v. Rabiabat, ILR 30 Bom. 537, it has been held that there may not be a particular cause for divorce, and mere when is sufficient, it is good in law, though had in theology. In Asha Bibi v. Kadir Ibrahim, ILR 33 Mad. 22, it has been held that, although an arbitrary or unreasonable exercise of divorce of marriage is strongly condemned in the Quran and is treated as spiritual offence, it does not affect the legal validity of a divorce duly effected by husband. In Ahmed Kasim Molla v. Khatun Bibi, ILR 59 Cal. 833, the Calcutta High Court has held that any Mohammedan husband may divorce his wife at his mere whim and caprice. However, a Singles Judge of this Court has, in Jiauddin Ahmed v. Anwara Begum, (1981) 1 OLR 358, held that divorce must be for a reasonable cause, and that must be preceded by an attempt at reconciliation between the husband and wife by two arbiters one chosen by the wife from her family and the other by the husband from his side. Learned Single Judge, after considering the cases cited above, the observations of some of the High Courts, the mandates of the Quran, and the treaties on Mohammedan Law of various authors and scholars, came to the above conclusion. This decision of the learned Single Judge was approved by a Division Bench of this Court in Rukia v. Abdul Khalique, (1981) 1 GLR 375.

    6. Mr. Barua, learned Counsel for the respondent, has submitted that in view of the earlier decisions of other High Courts that a Mohammedan husband may divorce his wife at his whim and caprice, the decisions of this Court are required to be reviewed for the settled position of law prevailing for a considerable long period, that is to say, long standing legal position, should not be disturbed. Mr. Barua has further submitted that the matter may be referred to a larger Bench.

    7. We are not inclined to accept the submission made by Mr. Barua. We approach the matter as follows. Under the Quran, the marriage state is to be maintained as far as possible and there should be conciliation before divorce (See note 254 of Vol. 1 of Holy Quran by A Yusuf Ali). Therefore, the Quran discourages divorce and it permits only in extreme cases after pre-divorce conference. Therefore, a Mohammedan husband cannot divorce his wife at his whim and caprice. The question then is,--Whether, if divorce by talak is made arbitrarily, is should be treated as spiritual offence only ? Under the Mohammedan Law, marriage though regarded as a civil contract between a man and a woman, they become husband and wife after solemnization of the marriage and their respective rights and obligations are regulated by the rules under relevant law. This being the position, marriage is the basis for social organisation and foundation of legal rights and obligations. The modern concept of divorce is also that the matrimonial status should be maintained as far as possible. Under Section 7 of the Family Courts Act, 1984, cases relating to matrimonial status of any person are within the jurisdiction of the Family Court. The Family Court aims at reconciliation and pursuation of parties to arrive at a settlement. For these reasons, if a Mohammedan husband divorces his wife at his whim and caprice, it would not only be a spiritual offence but it would also affect the divorce. In the above view of the matter, a Mohammedan husband cannot divorce his wife at his whim or caprice, that is, divorce must be for a reasonable cause, and it must be preceded by a pre-divorce conference to arrive at a settlement. Therefore, we are in agreement with the decision of this Court, and we respectfully are unable to agree with the view taken by the other High Courts that divorce can be made at whim and caprice of the husband. The decisions of this Court were made by the Single Judge in the year 1978 and by the Division Bench in the year 1979, before 14/15 years ago. Therefore, the question of unsettling the settled position of las does not arise.

    8. The next question which arises for consideration is whether divorce by talak has been proved. The case of the husband is that he had divorced his wife by a written document in presence of the witnesses and he handed over talaknama to his wife. Thereafter, a photostate copy of the talaknama was made over to Sadar Kazi of Gauhati for registration of the divorce. A photostat copy of talaknama has been filed. It is settled that a photostat copy of a document is admissible as secondary evidence, if it is proved to be genuine (see Ashok Dulichand v. Madhavlal Dube, AIR 1975 SC 1748). In the present case, the foundation for admission of the photostat copy as secondary evidence has not been laid. No attested copy of the entry of registration of divorce has been produced. Therefore, the husband has failed to prove alleged talaknama. However, in the evidence of the husband, he has stated that he also made pronouncement of the word "talak" three times. There is no evidence or material to corroborate that talak was effected orally. That apart, the written statement indicates that the case is solely based on talaknama. Under the circumstances, it is held that the talak pleaded has not been proved. Further, we have concluded that the divorce must be for reasonable cause and it must be preceded by pre-divorce conference to arrive at a settlement. There is no evidence that there was a pre-divorce conference. In that view of the matters, the husband has failed to prove the alleged divorce by talak.

    9. Mr. P.K. Barua, learned Counsel for the respondent, has contended that, even if talak pleaded as not proved, the husband has stated that she had divorced not only in his written statement; but also in his deposition and therefore, the divorce would be deemed to have been effected from the date of filing of the written statement or from the date of statement on oath. The learned Counsel has, in order to support his contention, relied on the decisions reported as Asmat Ullah v. Mst. Khatun Unnisa, AIR 1939 All 592; Wahab Ali v. Qamro Bi, AIR 1951 Hyd. 117, Chand Bi v. Bandesha, AIR 1961 Bom. 121; Abdul Shakoor v. Kulsum, 1962(1) CrLJ 247; and Mohammad Ali v. Fareedunnisa, AIR 1970 AP 199.

    10. In the above cited cases, wife made claim for maintenance under Section 488(old): 125(new), Cr. P. C. In those cases, it has been held that where in a proceeding started under Section 488(old) : 125 (new), Cr.P.C. by a Mohammedan wife against her husband for her maintenance, the husband states in the written statement that he had already divorced his wife and the Court comes to the conclusion that divorce pleaded is not proved, then such a statement in the written statement itself operates as an expression or declaration of divorce by talak, and the divorce would be held to take effect at least from the date on which the written statement was filed by the husband. The reason for the decision is that the statement made by the husband orally in his deposition or in his written statement that he had divorced his wife is an acknowledgement of talak alleged to have effected by him already and, therefore, the divorce would be held to have effect at least from the date upon which the acknowledgement in made.

    11. We respectfully submit that we are unable to agree with the decisions in the above-referred cases for the following reasons. Written statement is a pleading. Pleading is one thing and proof is another. Pleading is formal allegations by the parties of their respective claims and defences to provide notice of what is to be expected at trial. Proof is establishment of a fact by evidence or matters before the Court or legal Tribunal. Where the parties are in dispute as regards a material fact, in averment in the pleading does not constitute evidence, as what is stated in the pleading is recital of past event which is required to be proved. Under the Evidence Act, if a material fact pleaded is not proved, it follows that the Court considers or believes that the fact does not exist. Therefore, averment in the pleading cannot be used in favour of the maker. This being the position, statement made by the husband in his pleading or deposition that he has divorced his wife is recital of past event, and, if talak pleaded is not proved such statement shall be of no consequence. In that view of matter, if statement made by the husband that he had divorced his wife in his pleading or deposition is considered as an acknowledgement of divorce by talak, it will be against the policy of law, and it would also amount to furnishing or providing evidence of talak, which is against the rule of pleading and proof. That apart, in view of our conclusion above that divorce must be for a reasonable cause and it must be preceded by a pre-divorce conference, if the statement made orally in evidence or in the written statement that the husband his divorced his wife in a proceeding under Section 125 Cr. P.C. will be a valid talak from the date of making statement cannot be sustained as it would be contrary of our conclusion. For the reasons stated above, the contention of Mr. Barua is rejected.

    12. In the result, the order of the Family Court made on 7-8-1992 in Case No. FC (Cril) 111/92/74-M/90 in so far as findings with regard to divorce is set aside. The matter is sent back for disposal afresh in accordance with law.

    14. The revision petition is allowed.

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    Comments

    Zeenat Fatema Rashid v. Md. Iqbal Anwar
    (May 5, 1993)