Restraint on talaq

Print edition : July 20, 2002

A Bombay High Court verdict requiring the husband to satisfy all legal preconditions before exercising his right for talaq comes as a great relief to Muslim women.

IN a significant ruling that will affect positively the rights of Muslim women, the Aurangabad Bench of the Bombay High Court held on May 2 that a mere pronouncement of talaq by the husband, or a mere declaration of his intention, or his acts of having pronounced talaq were not sufficient and did not meet the requirements of Islamic law for a divorce. The court said: In every such exercise of right to talaq, the husband is required to satisfy the preconditions of arbitration for reconciliation and reasons for talaq. Conveying his intention to divorce the wife are not adequate to meet the requirements of talaq in the eyes of law." The verdict of the three-Judge Bench comprising Justices B.H. Marlapalle, N.V. Dabholkar and N.H. Patil will be binding on the State of Maharashtra and have persuasive value for other States as well.

The Bench reiterated the need to prove disputed pleadings under the process laid down by the Civil Procedure Code and the Indian Evidence Act, 1872. It said: "Pleadings before the court, though made on oath, either in writing or in oral form, when disputed by the wife, are required to be proved and when it comes to proving all these pleadings, the process is governed by the common law, that is, the Civil Procedure Code and the Indian Evidence Act, and mere statement on oath, either in writing or in oral form itself, does not prove the factum of divorce as well as valid or effective divorce. If the talaq pronounced is ineffective or invalid, it is no divorce under the Mohamadan Personal Law."

It said that even in the case of the irrevocable form of talaq pronounced in the presence of a qazi or the wife's father or two witnesses (both of them professing Islam), the factum of this form of talaq is required to be proved if challenged before a competent court in appropriate proceedings. The qazi, the father, or the witnesses could be examined. Their presence when the husband pronounced talaq and his pronouncement of talaq were required to be proved if the factum of valid talaq was questioned by the wife.

The judgment said: "Mere assertion by the husband in any form is not sufficient to hold that he has exercised the right to give talaq legally and validly. If any of the witnesses does not profess Islam, the talaq given in his/her presence shall be invalid and inoperative."

In essence, the judgment has underscored the importance of the procedures preceding divorce in accordance with Islamic law. If the husband is unable to prove his statement regarding divorce given earlier before the court, his claims regarding the talaq are invalid in the eyes of law and such a statement cannot be taken as a fresh declaration of divorce, as a mere declaration of divorce is not by itself sufficient for a valid divorce. Even if such a statement in writing is supported by a talaknama, which may be a record of the fact of an oral talaq or the deed by which the divorce was effected, that supportive document by itself would not lead to the conclusion that the talaq was valid, effective and legal. The Bench also ruled that unless the fact of divorce was proved, documents relating to the registration of the talaq under the Wakf Act and the issue of a talaq certificate by the qazi had no sanctity.

The judgment, which came in response to a petition filed for maintenance under Section 125 of the Code of Criminal Procedure, essentially limits the indiscriminate use of talaq, though it has refrained from passing any directive on the right of a husband to pronounce it. The judgment is in no way contradictory to the tenets of Islamic law, which permits divorce but regards it as an undesirable act and the uncontrolled use of it as a sin.

In the case in question, Rahimbi of Ranapur taluk in Latur district was married to Dagdu Pathan and had three daughters from the marriage. When Dagdu Pathan divorced her, Rahimbi approached the Judicial Magistrate, Latur, with an application for maintenance for herself and her three minor children under Section 125 of the CrPC. Summons were issued to Dagdu Pathan who had subsequently married Khamrunbee. Pathan filed a written statement before the Judicial Magistrate opposing Rahimbi's claim that she and her daughters had been neglected by him and stated that he had divorced Rahimbi on February 24, 1996, in the presence of a qazi and two witnesses - a Muslim and a Hindu.

The plea was rejected by the Second Joint Judicial Magistrate on November 1998 and the maintenance application was allowed. When the petition came up in the High Court, it was deemed important as a controversy already existed over contrary views taken by two Division Benches in two previous cases concerning maintenance and talaq. The single Judge hearing the petition directed it to be placed before the Chief Justice for consideration to refer it to a Full Bench. The Full Bench looked into several aspects of Islamic law that related to talaq.

The Bench recalled an observation made by the Supreme Court in a case in which the constitutional validity of the Muslim Women's (Protection of Right to Divorce) Act, 1986, had been challenged (Daniel Latifi and Others vs Union of India). The apex court had in its September 28, 2001, order observed: ""In interpreting the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male-dominated, both economically and socially, and women are assigned, invariably, a dependent role, irrespective of the class of society to which she belongs."

The judgment also elucidated on the general principles of talaq as laid down in Islamic law. While a divorce by a husband is talaq either in the oral or written form, he cannot at his free will resort to any of the modes at any time without assigning reasons. Two arbitrators, one from either side, have to be appointed to bring about a settlement between the parties. Only if the discord persisted at an irreparable level could the husband have the right to resort to talaq. "Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by the arbitrators, one from the wife's family and the other husband's. If the attempts failed, talaq may be effected," the judgment held.

Regarding the prescribed procedure for talaq, it ruled that "the pronouncement of talaq... has to necessarily satisfy all these conditions of pronouncing the talaq at a particular time and such a talaq must be valid and effective. It is not that on his own sweet will the husband has the unqualified prerogative to exercise this right to pronounce talaq". Many of the references to Islamic law were drawn from the Compendium of Islamic Laws, a publication brought out by the All India Muslim Personal Law Board.

THE judgment has generally been welcomed. Anees Ahmed, an advocate in the Supreme Court, said that the landmark judgment established the legal requirement of providing divorce by the husband on the anvil of the Indian Evidence Act, 1872. It would ensure transparency in matrimonial transactions and was expected to go a long way in ensuring that there was some restraint on husbands rendering reckless talaqs, he said. Married Muslim men were known to pronounce orally triple "talaq" or give it in writing. There was no requirement to go to court and it was done totally at the whim and caprice of the husband, to give talaq without involving the wife, the lawyer said.

Ahmed, who has assisted the National Commission for Women in similar cases, said that most often, it was difficult for the wife to prove that the husband had actually divorced her because of the absence of documentary proof. Sehba Farooqi, general secretary of the National Federation of Indian Women, said that even if such evidence was there, it was never with the woman, and qazis seldom kept the papers relating to the nikaahnama or the talaknama. The judgment was good to the extent that it had given some relief to Muslim women, she said.

Sheba Farooqi said that a campaign to register all marriages and divorces was under way and some governments had responded positively to that.

Anees Ahmed welcomed the campaign as it ensured that all marriages and divorces were registered with either a religious body or with a secular (state) institution, such as the Registrar of Marriages and Divorces. This would enable the wife to prove that her husband had actually divorced her and she could claim maintenance and alimony according to the law. Otherwise, divorce rights of Muslim women involved protracted litigation, after filing a petition in a civil court to obtain a decree of divorce under the Dissolution of Marriage under Muslim Act, 1939, Anees Ahmed said.

Sayeeda Hameed, founder of the Muslim Women's Forum, said that the judgment was a step in the right direction. A former member of the National Commission for Women, she said that in a large number of cases talaq was being pronounced not in accordance with the injunctions of Islam. She said that the judgment was on expected lines as there was enough proof that Muslim women suffered from the profligate use of talaq. The spirit of the religion had always been to give relief to both the man and the woman when the marriage became intolerable but it was found that the system of dowry and the practice of polygamy were used increasingly against women. She said that the ruling was as historic as the judgment in the Shah Bano case, which had placed some obligations on the husband to pay maintenance to his divorced wife. The judgment was substantially diluted in the Muslim Women's (Protection of Rights on Divorce) Act, 1986.

Judicial interventions alone cannot effect reform but they are an essential step in that direction. Deeper social malaise exists and with the menace of dowry and rank consumerism touching abominable levels in every segment of society, only a combination of judicial and political interventions can uplift women.

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