R.C Lahoti, J.— Shamim Ara, the appellant and Abrar Ahmed, Respondent 2 were married sometime in 1968 according to Muslim Shariat law. Four sons were born out of the wedlock. On 12-4-1979, the appellant, on behalf of herself and for her two minor children, filed an application under Section 125 CrPC complaining of desertion and cruelty on the part of Respondent 2 with her. By order dated 3-4-1993 the learned Presiding Judge of the Family Court at Allahabad refused to grant any maintenance to the appellant on the ground that she was already divorced by the respondent and hence not entitled to any maintenance. However, maintenance at the rate of Rs 150 per month was allowed for one son of the appellant for the period during which he remained a minor; the other one having become a major during the pendency of the proceedings.
2. Respondent 2 in his reply (written statement) dated 5-12-1990, to the application under Section 125 CrPC, denied all the averments made in the application. One of the pleas taken by way of additional pleas is that he had divorced the appellant on 11-7-1987 and since then the parties had ceased to be spouses. He also claimed protection behind the Muslim Women (Protection of Rights on Divorce) Act, 1986 and submitted that Respondent 2 had purchased a house and delivered the same to the appellant in lieu of mehar (dower), and therefore, the appellant was not entitled to any maintenance. No particulars of divorce were pleaded excepting making a bald statement as already stated hereinabove.
3. The appellant emphatically denied having been divorced at any time. Respondent 2, when he appeared in the witness box, stated having divorced the appellant on 11-7-1987 at 11 a.m in the presence of Mehboob and other 4-5 persons of the neighbourhood. He further stated that since 1988 he had not paid anything either to the appellant or to any of the four sons for their maintenance. The divorce said to have been given by him to the appellant was a triple talaq though such a fact was not stated in the written statement.
4. The Family Court in its order dated 3-4-1993 dealt with and upheld a strange story of divorce totally beyond the case set up by Respondent 2. The learned Presiding Judge referred to some affidavit dated 31-8-1988 said to have been filed by Respondent 2 in some civil suit details whereof are not available from the record of the present case but certainly to which litigation the appellant was not a party. In that affidavit it was stated by Respondent 2 that he had divorced the appellant 15 months before. The learned Judge held that from such affidavit the plea of Respondent 2 found corroboration of his having divorced the appellant. The learned Judge concluded that the appellant was not entitled to any maintenance in view of her having been divorced.
5. The appellant preferred a revision before the High Court. The High Court held that the divorce which is alleged to have been given by Respondent 2 to the appellant was not given in the presence of the appellant and it is not the case of the respondent that the same was communicated to her. But the communication would stand completed on 5-12-1990 with the filing of the written statement by Respondent 2 in the present case. Therefore, the High Court concluded that the appellant was entitled to claim maintenance from 1-1-1988 to 5-12-1990 (the later date being the one on which reply to application under Section 125 CrPC was filed by Respondent 2 in the Court) whereafter her entitlement to have maintenance from Respondent 2 shall cease. The figure of maintenance was appointed by the High Court at Rs 200.
6. The appellant has filed this appeal by special leave. The singular issue arising for decision is whether the appellant can be said to have been divorced and the said divorce communicated to the appellant so as to become effective from 5-12-1990, the date of filing of the written statement by Respondent 2 in these proceedings.
7. None of the ancient holy books or scriptures of Muslims mentions in its text such a form of divorce as has been accepted by the High Court and the Family Court. No such text has been brought to our notice which provides that a recital in any document, whether a pleading or an affidavit, incorporating a statement by the husband that he has already divorced his wife on an unspecified or specified date even if not communicated to the wife would become an effective divorce on the date on which the wife happens to learn of such statement contained in the copy of the affidavit or pleading served on her. Mulla on Principles of Mahomedan Law (19th Edn., 1990) states vide para 310:
“310. Talak may be oral or in writing.—A talak may be effected (1) orally (by spoken words) or (2) by a written document called a talaknama (d).
(1) Oral talak.—No particular form of words is prescribed for effecting a talak. If the words are express (saheeh) or well understood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved (e). It is not necessary that the talak should be pronounced in the presence of the wife or even addressed to her (f). In a Calcutta case the husband merely pronounced the word ‘talak’ before a family council and this was held to be invalid as the wife was not named (g). This case was cited with approval by the Judicial Committee in a case where the talak was valid though pronounced in the wife's absence, as the wife was named (h). The Madras High Court has also held that the words should refer to the wife (i). The talak pronounced in the absence of the wife takes effect though not communicated to her, but for purposes of dower it is not necessary that it should come to her knowledge (j); and her alimony may continue till she is informed of the divorce (k). As the divorce becomes effective for purposes of dower only when communicated to the wife, limitation under Article 104 for the wife's suit for deferred dower ran from the time when the divorce comes to her notice (l), under the Act of 1908. See also the Limitation Act, 1963.
Words of divorce.—The words of divorce must indicate an intention to dissolve the marriage. If they are express (saheeh), e.g, ‘Thou are divorced’, ‘I have divorced thee’, or ‘I divorce my wife forever and render her haram from me’ (Rashid Ahmad v. Anisa Khatun (h), they clearly indicate an intention to dissolve the marriage and no proof of intention is necessary. But if they are ambiguous (kinayat), e.g, ‘Thou art my cousin, the daughter of my uncle, if thou goest’ (Hamid Ali v. Imtiazan ILR (1878) 2 All 71) or ‘I give up all relations and would have no connection of any sort with you’ (Wajid Ali Khan v. Jafar Husain Khan ILR (1932) 7 Luck 430, AIR 1932 Oudh 34), the intention must be proved.
Pronouncement of the word talak in the presence of the wife or when the knowledge of such pronouncement comes to the knowledge of the wife, results in the dissolution of the marriage. The intention of the husband is inconsequential. Ghansi Bibi v. Ghulam Dastagir (1968) 1 Mys LJ 566.
If a man says to his wife that she has been divorced yesterday or earlier, it leads to a divorce between them, even if there be no proof of a divorce on the previous day or earlier.”
(d) See Ma Mi v. Kallander Ammal, AIR 1927 PC 15 : 100 IC 1 : (1927) 54 IA 61 : ILR 5 Rang 18 affirming Kalenther Ammal v. Ma Mi, ILR (1924) 2 Rang 400
(e) Ma Mi v. Kallander Ammal, supra; Asha Bibi v. Kadir Ibrahim Rowther, ILR (1909) 33 Mad 22 : 3 IC 730; Wahid Khan v. Zainab Bibi, ILR (1914) 36 All 458 : 25 IC 387; Ibrahim v. Syed Bibi, ILR (1888) 12 Mad 63
(f) Ma Mi v. Kallander Ammal, supra; Ahmad Kasim Molla v. Khatun Bibi, ILR (1932) 59 Cal 833 : 141 IC 689 : AIR 1933 Cal 27; Ful Chand v. Nazab Ali Chowdhary, ILR (1909) 36 Cal 184 : 1 IC 740; Sarabai v. Rabiabai, ILR (1905) 30 Bom 537 : 8 Bom LR 35
(g) Furzund Hossein v. Janu Bibee, ILR (1878) 4 Cal 588
(h) Rashid Ahmad v. Anisa Khatun, (1931-32) 59 IA 21 : ILR (1932) 54 All 46 : 135 IC 762 : AIR 1932 PC 25
(i) Asha Bibi v. Kadir, supra.
(j) Ful Chand v. Nazab Ali, supra.
(k) Ma Mi v. Kallander Ammal, supra; M.M Abdul Khader v. Azeeza Bee, (1944) 1 MLJ 17 : 214 IC 38 : AIR 1944 Mad 227
(l) Kathiyumma v. Urathel Marakkar, (1931) 133 IC 375 : AIR 1931 Mad 647
The statement of law by Mulla as contained in para 310 and footnotes thereunder is based on certain rulings of the Privy Council and the High Courts. The decision of the A.P High Court in (1975) 1 APLJ 20 has also been cited by Mulla in support of the proposition that the statement by the husband in pleadings filed in answer to petition for maintenance by the wife that he had already divorced the petitioner (wife) long ago operates as divorce.
8. We will offer our comments on this a little later. Immediately we proceed to notice a few other authorities.
9. In Dr Tahir Mahmood's The Muslim Law of India (2nd Edn., at pp. 113-19), the basic rule stated is that a Muslim husband under all schools of Muslim law can divorce his wife by his unilateral action and without the intervention of the court. This power is known as the power to pronounce a talaq. A few decided cases are noticed by the learned author wherein it has been held that a statement made by the husband during the course of any judicial proceedings such as in the wife's suit for maintenance or restitution of conjugal rights, or the husband's plea of divorce raised in the pleadings did effect a talaq.
10. 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.
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 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 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 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 ‘khola’. … 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.”
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 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.
14. We are in respectful agreement with the abovesaid observations made by the learned Judges of the High Courts. We must note that the observations were made 20-30 years before and our country has in recent times marched steps ahead in all walks of life including progressive interpretation of laws which cannot be lost sight of except by compromising with regressive trends. What this Court observed in Bai Tahira v. Ali Hussain Fidaalli Chothia (1979) 2 SCC 316, AIR 1979 SC 362 dealing with the right to maintenance of a Muslim divorcee is noteworthy. To quote: (AIR pp. 365 & 366, paras 7 & 12)
“The meaning of meanings is derived from values in a given society and its legal system. Article 15(3) has compelling, compassionate relevance in the context of Section 125 and the benefit of doubt, if any, in statutory interpretation belongs to the ill-used wife and the derelict divorcee. This social perspective granted, the resolution of all the disputes projected is easy. Surely, Parliament, in keeping with Article 15(3) and deliberate by design, made a special provision to help women in distress cast away by divorce. Protection against moral and material abandonment manifest in Article 39 is part of social and economic justice, specificated in Article 38, fulfilment of which is fundamental to the governance of the country (Article 37). From this coign of vantage we must view the printed text of the particular code.
Law is dynamic and its meaning cannot be pedantic but purposeful.”
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 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 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.
17. For the foregoing reasons, the appeal is allowed. Neither the marriage between the parties stands dissolved on 5-12-1990 nor does the liability of Respondent 2 to pay maintenance comes to an end on that day. Respondent 2 shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law. The costs in this appeal shall be borne by Respondent 2.