The Telegraph
Since 1st March, 1999
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Supreme Court order on talaq

New Delhi, Oct. 6 (PTI): The Supreme Court has said that a mere plea of talaq taken in an unsubstantiated written statement submitted before court could not be accepted as proof of talaq.

Disagreeing with the practice narrated by experts of Muslim law, Mulla and Tahir Mahmood, a bench of Justice R.C. Lahoti and Justice P.V. Reddi said: “The talaq to be effective has to be pronounced.”

“A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the court followed by delivery of a copy thereof to the wife,” said Lahoti, writing the judgment.

One Shamim Ara was married to Abrar Ahmed in 1968. In 1979, she filed an application before a family court seeking maintenance from her husband under Section 125 of the CrPC on the ground that he had deserted her.

In 1990, Ahmed filed a statement making an averment that he had divorced Shamim in 1987 and, thus, she was not entitled to any maintenance. In its 1993 judgment, the family court rejected Shamim’s plea for maintenance on the ground that she had already been divorced. On her appeal, the high court held that the communication of talaq stood completed in 1990 with the filing of the Ahmed’s written statement.

The apex court said the law of talaq as ordained by the Quran was that it 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 failed, talaq could be effected.

“There are no reasons substantiated in justification of talaq and no plea of proof that any effort at reconciliation preceded the talaq,” he added.

The husband had adduced no evidence of the talaq except for the written statement filed in the court, Lahoti said.

According to Mulla, the statement by a husband in pleadings filed in answer to petition for maintenance by wife that he had already divorced her operates as divorce. Mahmood had supported Mullah’s contention in his book The Muslim Law of India.

The bench said: “We do not agree with the view propounded in the decided cases referred to by Mullah and Dr Tahir Mahmood in their respective commentaries.”

“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,” Lahoti said.

Allowing Shamim’s appeal, the Supreme Court said: “Neither the marriage between the parties stands dissolved on December 5, 1990, nor does the liability of the husband to pay maintenance comes to an end on that day. The husband shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law.”

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