Shamim Ara v. State of U.P. the Supreme Court has disagreed with the established principles on the law of written divorce among Muslims, and has ruled that ‘talaq to be effective has to be pronounced’. The Court said that plea of talaq taken in an unsubstantiated written statement submitted before a Court not is accepted as a proof of talaq. Briefly stated, the facts of this important case are given as under:
Shamim Ara was married to Abrar Ahmad in the year 1968. In 1979 Shamim Ara (as ‘wife’, not as ‘divorced wife’) filed an application before a Family Court demanding maintenance for herself and for her children from husband under Section 125 Cr. P.C. on the ground that he has deserted her.
ADVERTISEMENTS:
In reply, the husband filed a written statement in 1990 before the Family Court making an averment that he had already divorced his wife in 1987 and therefore she was not entitled to claim any maintenance.
Upon this, the Family Court rejected the wife’s claim of maintenance on the ground that she had already been divorced. On appeal, the Allahabad High Court held that the communication of talaq was completed in 1990 by husband’s written statement in the Family Court and she (Shamim Ara) had already been divorced. Against this judgment, the wife preferred an appeal in the Supreme Court.
Image Source: indialegalonline.com
Held:
The Supreme Court held that in order to make an effective (valid), talaq it has to be formally pronounced. The Court said that:
“A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of ‘talaq’ by the husband or wife on the date of filing of the written statement in the court followed by delivery of a copy thereof to the wife.
ADVERTISEMENTS:
So, also the affidavit…………………. filed in some previous judicial proceedings not inter parte, containing a self-severing statements of respondent (husband) could not have been read in evidence as relevant and of any value.”
Elaborating the meaning of the word ‘pronouncement’ the Apex Court said : “the term ‘pronounce’ means to proclaim, to utter formally, to utter rhetorically, declare, to utter, to articulate (Chambers 20th century Dictionary, New Ed. p. 1030).”
Explaining the law on talaq, the Apex Court observed that the correct ‘talaq’ as ordained by the Holy 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 and, even then if the attempts failed, talaq could be effected.
The Court observed further that the husband had adduced no evidence of the ‘talaq’ except for the written statement filed in the family court, “there are no reasons substantiated in justification of ‘talaq’ and no plea of proof that any effort at reconciliation precedes the talaq”.
ADVERTISEMENTS:
In this leading case, after discussing at length all the aspects of talaq under Muslim law as applied in India, including the Holy Quran Ch. IV Sura 34, the Supreme Court said:
“For the foregoing reasons the appeal (by Shamim Ara-the wife) is allowed.
Neither the marriage between the party’s stands dissolved…………………………….. Nor does the liability (of Abrar Ahmed.—the husband) to maintenance comes to an end, (Abrar Ahmed—the husband) shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law.”