MANU/SC/0850/2002

Equivalent Citation: 2002(3)AC R3013(SC ), AIR2002SC 3551, 2002(6)ALT54(SC ), (SC Suppl)2002(4)C HN182, 95(2003)C LT247(SC ),
100(2002)DLT58(SC ), 2002GLH(3)757, (2003)1GLR80, [2003(1)JC R278(SC )], JT2002(7)SC 520, 2003-1-LW363, 2002(4)RC R(C ivil)340,
2002(4)RC R(C riminal)636, RLW2003(1)SC 148, 2002(7)SC ALE183, (2002)7SC C 518, [2002]SUPP3SC R19, 2003(1)UC 368, 2002(2)UJ1385

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 465 of 1996
Decided On: 01.10.2002
Appellants:Shamim Ara
Vs.
Respondent:State of U.P. and Ors.
Hon'ble Judges/Coram:
R.C. Lahoti and P. Venkatarama Reddi, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Praveen Swarup, Adv. for Pramod Swarup, Adv
For Respondents/Defendant: A.S. Pundir, Adv. (NP) for Respondent in No. 1 and
Arvind Varma, Adv. for K.L. Mehta & Co. for Respondent in No. 2
Case Note:
Code of Criminal Procedure, 1973 - Section 125--Muslim Women (Protection
of Rights on Divorce) Act, 1986--Maintenance to Muslim Women--
Disentitlement on talaq--What is valid talaq in Islamic law?--It must be for
reasonable cause--And be preceded by attempts at reconciliation between
husband and wife by two arbiters--Talaq to be effective has to be
pronounced--Plea of talaq taken on written statement cannot be at all
treated as pronouncement of talaq by husband on wife on date of filing
written statement--Affidavit regarding talaq by husband in some judicial
proceedings not inter parte--Cannot be read in evidence--High Court
wrongly upholding plea of talaq taken in written statement--Neither
marriage between parties dissolved on date of filing written statement by
husband--No responsibility of husband to pay maintenance coming to end
on that day--Husband to continue to remain liable for payment of
maintenance until obligation comes to end in accordance with law--
Judgment of High Court set aside.
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.
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).

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The plea taken by the husband-respondent No. 2 in his written statement
filed in proceedings under Section 125, Cr. P.C. initiated by the appellant-
wife may be noticed. The respondent No. 2 vaguely makes certain
generalised 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 fed up with all such activities unbecoming of
the wife-petitioner, 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 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 talaq.
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. But 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. The Supreme Court does 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 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.
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.
JUDGMENT
R.C. Lahoti, J.
1. Shamim Ara, the appellant and Abrar Ahmed, 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

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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.
2 . 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.
3 . 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.
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 the respondent No. 2. The learned
Presiding Judge referred to some affidavit dated 31.8.1988 said to 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.
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 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/-.
6. The appellant has filed this appeal by special leave. The signature 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

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date of filing of the written statement by the respondent No. 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 apleading 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 (SIC)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 talak nama (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 of 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 (kinavat),e.g., "Thou art my
cousin, the daughter of my uncle, if thou guest" [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, 163 L.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 M.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."

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 [(f) Ma Mt v. Kallander Ammal, supra;Ahmad Kasim v. Khatoon Bibi (1932)
59Cal. 833, 141 L.I.C. 689, ( 33) A.C. 27;Fulchand v. Nazib Ali (1909) 36
Cal.184, 1 L.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 L.I.C.
762 ( 32) A.P.C. 25.
(i) Asha Bibi v. Kadir, supra.
(j) Fulchand v. Nazib Ali, supra.
(k) Ma Mt v. Kallandar Ammal, supra;Abdul Khader v. Azeera Bee (1944)
1M.L.J. 17, 214 I.C. 38, (44) A.M. 227.
(l) Kathiyumma v. Urathel Marakkar(1931) 133 L.I.C. 375, (31) A.M. 647.
8. The statement of law by Mulla as contained in para 310 and foot notes there under
is based on certain rulings of Privy Council and the High Courts. The decisions of A.P.
High Court in MANU/AP/0147/1974 : (1975) 1 APL J 20 has also been cited by Mulla
in support of the proposition that the statement by husband in pleadings filed in
answer to petition for maintenance by wife that he had already divorced the
petitioner (wife) long ago operates as divorce.
9. We will offer our comments on this a little later. Immediately we proceed to notice
a few other authorities.
10. In Dr. Tahir Mahmood's 'The Muslim Law of India' (Second Edition, at pp. 113-
119), 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.
11. 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.
12. V. Khalid, J., as His Lordship then was, observed inMohammed Haneefa v.
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

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 alliance. It need not even be addressed to her. It takes effect the moment it
comes to her knowledge."
13. 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)
14. 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,
MANU/KE/0059/1971. 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 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."

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 (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 Koala she has to surrender to the husband her
dower or abandon some of her rights, as compensation." (para 7)
15. 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 v. Mrs. Anwara
Begum MANU/GH/0033/1978 : (1981) 1 GLR 358 and later speaking for the Division
Bench in Must. Rukia Khatun v. Abdul Khalique Laskar MANU/GH/0031/1979 :
(1981) 1 GLR 375. In Jiauddin Ahmed'scase 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 recognize 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 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). InRukia 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 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.
16. 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 v.
Ali Hussain MANU/SC/0402/1978, dealing with right to maintenance of a muslim
divorce is noteworthy. To quote:
"The meaning of meanings is derived from values in a given society and its

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 legal system. Article 15(3) has compelling,compassionate relevance in the
context of Section 125 and the benefit of doubt, if any, instatutory
interpretation belongs to the ill-used wife and the derelict divorce. 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, specified in Article 38,
fulfillment 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." (para 7)
"Law is dynamic and its meaning cannot be pandemic but purposeful" (para 12)
17. 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 he 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.
18. 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 20 th 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 pronounced 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 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.
19. 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.

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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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