Shamim Ara vs State Of U.P.

& Anr on 1 October, 2002

Supreme Court of India

Shamim Ara vs State Of U.P. & Anr on 1 October, 2002
Author: R Lahoti
Bench: R.C. Lahoti, P.Venkatarama Reddi.
CASE NO.:
Appeal (crl.) 465 of 1996

PETITIONER:
Shamim Ara

RESPONDENT:
State of U.P. & Anr.

DATE OF JUDGMENT: 01/10/2002

BENCH:
R.C. LAHOTI & P.VENKATARAMA REDDI.

JUDGMENT:

J U D G M E N T R.C. Lahoti, J.

Shamim Ara, the appellant and Abrar Ahmad, the respondent no.2 were married some time in 1968
according to Muslim Shariyat 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
Cr.P.C. complaining of desertion and cruelty on the part of respondent no.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 major during the pendency of the proceedings.

The respondent no.2 in his reply (written statement) dated 5.12.1990, to the application under
Section 125 Cr.P.C., 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 the respondent no.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. The appellant emphatically denied having been divorced at any time.
The respondent no.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. 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 the
respondent no.2. The learned Presiding Judge referred to some affidavit dated 31.8.1988 said to

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 Shamim Ara vs State Of U.P. & Anr on 1 October, 2002

have been filed by the respondent No.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 the respondent no.2 that he had divorced the appellant 15 months before.
The learned Judge held that from such affidavit the plea of the respondent no.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. The appellant preferred a revision
before the High Court. The High Court held that the divorce which is alleged to have been given by
the respondent no.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 the respondent no.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 Cr.P.C. was filed by the respondent No.2 in the Court) whereafter her entitlement
to have maintenance from respondent no.2 shall cease. The figure of maintenance was appointed by
the High Court at Rs.200/-.

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 the
respondent no.2 in these proceedings. 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 (Nineteenth Edition, 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

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 Shamim Ara vs State Of U.P. & Anr on 1 October, 2002

(k). As the divorce becomes effective for purposes of dower only when communicated to the wife,
limitation under Art. 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 art divorced," "I have divorced thee," or "I divorce my wife for
ever and render her haram from me" [Rashid Ahmad v. Anisa Khatun (1932) 59 I.A. 21], 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 (1878) 2 All.71] or "I give up all relations and would have no connection of any sort with
you" [Wajid Ali v. Jafar Husain (1932) 7 Luck, 430, 136 I.C. 209, ('32) A.O.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. L.J. 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."

[(f) Ma Mi v. Kallander Ammal, supra;

Ahmad Kasim v. Khatoon Bibi (1932) 59 Cal. 833, 141 I.C. 689, ('33) A.C. 27;

Fulchand v. Nazib Ali (1909) 36 Cal.

184, 1 I.C. 740; Sarabai v. Rabiabai (1905) 30 Bom. 536 (obiter).

(g) Furzund Hussein v. Janu Bibee (1878) 4 Cal. 588.

(h) Rashid Ahmad v. Anisa Khatoon (1932) 59 I.A. 21, 54 All.46, 135 I.C. 762, ('32) A.P.C. 25.

(i) Asha Bibi v. Kadir, supra.

(j) Fulchand v. Nazib Ali, supra.

(k) Ma Mi v. Kallandar Ammal, supra;

Abdul Khader v. Azeeza Bee (1944) 1 M.L.J. 17, 214 I.C. 38, ('44) A.M. 227.

(l) Kathiyumma v. Urathel Marakkar (1931) 133 I.C. 375, ('31) A.M. 647.] The statement of law by
Mulla as contained in para 310 and footnotes thereunder is based on certain rulings of Privy Council
and the High Courts. The decision of A.P. High Court in (1975) 1 APLJ 20 has also been cited by
Mulla in support of the proposition that the statement by husband in pleadings filed in answer to

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 Shamim Ara vs State Of U.P. & Anr on 1 October, 2002

petition for maintenance by wife that he had already divorced the petitioner (wife) long ago operates
as divorce.

We will offer our comments on this a little later. Immediately we proceed to notice a few other
authorities. In Dr. Tahir Mahmood's 'The Muslim Law of India' (Second Edition, at pp.113119), 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 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. 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.

V. Khalid, J., as His Lordship then was, observed in Mohammed Haneefa Vs. Pathummal Beevi,
1972 K.L.T. 512 __ "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 if 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."(p.514) 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 Vs. Sowramma, AIR 1971 Kerala 261. It would suffice for our purpose to extract and
reproduce a few out of the several observations made by His Lordship:-

"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. (para 6) "Since infallibility is not
an attribute of the judiciary, the view has been ventured by Muslim jurists that the Indo-Anglian
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

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 Shamim Ara vs State Of U.P. & Anr on 1 October, 2002

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." (para 7) "It is a popular fallacy
that a Muslim male enjoys, under the Quaranic 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'." (Quaran 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."
(para 7) "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." (para 7) "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 Kholaa she has to surrender to the husband her
dower or abandon some of her rights, as compensation." (para 7) There is yet another illuminating
and weighty judicial opinion available in two decisions of Gauhati High Court recorded by Baharul
Islam, J. (later a Judge of the Supreme Court of India) sitting singly in Sri Jiauddin Ahmed Vs. Mrs.
Anwara Begum, (1981) 1 GLR 358 and later speaking for the Division Bench in Must. Rukia Khatun
Vs. Abdul Khalique Laskar, (1981) 1 GLR 375. In Jiauddin Ahmed's case 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 inspite 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's
case, the Division Bench stated that the correct law of talaq, as ordained by 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

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 Shamim Ara vs State Of U.P. & Anr on 1 October, 2002

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 view which, in their
opinion, did not lay down the correct law.

We are in respectful agreement with the abovesaid observations made by the learned Judges of 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 Vs. Ali Hussain AIR 1979 SC 362 dealing with right to maintenance of a
muslim divorcee is noteworthy. To quote : "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 S.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 Art. 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 Art.39 is part of social and economic justice, specificated in
Art.38, fulfillment of which is fundamental to the governance of the country (Art.37). From this
coign of vantage we must view the printed text of the particular Code." (para 7) "Law is dynamic and
its meaning cannot be pedantic but purposeful." (para 12) The plea taken by the
husband-respondent no.2 in his written statement may be re-noticed. The respondent No.2 vaguely
makes certain generalized accusations against the wife-appellant 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, the respondent No.2 proceeds to state, vide para 12 (translated into
English) __ "The answering respondent, feeling fade up with all such activities unbecoming of the
wife-petitioner, has divorced her on 11.7.87." 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 the respondent
No.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.

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. The respondent No.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

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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 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 parte, containing a self-serving statement of respondent no.2, could not have
been read in evidence as relevant and of any value.

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 the respondent No.2 to pay maintenance comes to an
end on that day. The respondent No.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 the respondent No.2.

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