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Smt. Marium Vs. Mohd. Shamsi Alam - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1445 of 1977
Judge
Reported inAIR1979All257
ActsMuhammadan Law
AppellantSmt. Marium
RespondentMohd. Shamsi Alam
Appellant AdvocateV.P. Misra, Adv.
Respondent AdvocateG.P. Mathur, Adv.
DispositionAppeal dismissed
Excerpt:
.....or pronouncement of words in presence of two witnesses not only manners of revocation - talaq revoked by defendant before expiry of iddat - appeal dismissed. - - that being fed up he sent the plaintiff to her parental house in the beginning of june, 1969, but on 22nd june, 1969, without any advance intimation, he came to the plaintiff's parental house and demanded that she be immediately sent back with him, to which her parents objected and said that it was impossible and improper to allow her to go at that time as she could be treated better for the illness at their place, whereupon the defendant in a rage and in one breath uttered the words of talaq thrice over, which left the plaintiff's parental side completely aghast, but the defendant immediately went back; that there..........notice under the plaintiff's signature to which the defendant sent a correct reply and even filed a suit for restitution of conjugal rights, being suit no. 1073 of 1969, against the plaintiff, which was pending in the court of additional munsif, at gorakhpur; that the suit giving rise to the present appeal was filed by way of 'peshbandi' and was false: that the divorce had been revoked within a week and the defendant was throughout trying to have the plaintiff back who, accordingly, continues to be his wife; that there was never any irrevocable divorce nor is the plaintiff entitled to any maintenance during the period of 'iddat'; that the suit had been filed at the instance of the plaintiff's father; that the payment of dower had been excused by the plaintiff long ago but in spite.....
Judgment:

Deoki Nandan, J.

1. This is a plaintiff's second appeal in a suit for declaration that the plaintiff had been divorced by the defendant and for a decree for recovery of Rs. 975.65p. as dowar, Rs. 300/- as maintenance for the period of 'Iddat' Rs. 2,800/- on account of the price of ornaments alleged to have been detained by the defendant; and maintenance for the daughter amounting to Rs. 600/- up to date of the suit and Rs. 50/- per month for the future. In the alternative, it was also pleaded that if the court found that relationship of husband and wife still existed between the parties the marriage may be dissolved by a decree of divorce. The trial court decreed the suit for recovery of Rs. 975.65p. on account of dower but dismissed the rest of the claim. The lower appellate court maintained the decree of the trial court.

2. The plaintiff's case was that she was married to the defendant on March 31, 1967; that the dower agreed upon was Rs. 975.65p.; that she went to live with the defendant immediately after the marriage along with all her dowry and ornaments etc., and that a girl was born to her who was about one year old when the suit was filed on 17th of July, 1969; that certain differences arose between the parties on account of, firstly the fact that the plaintiff's upbringing had been in an atmosphere of 'Faith' (Islam) while the atmosphere of the, defendant's house was modern and, secondly, the fact that the plaintiff was suffering from Kanthmala, the treatment of which had caused much trouble to the defendant; that being fed up he sent the plaintiff to her parental house in the beginning of June, 1969, but on 22nd June, 1969, without any advance intimation, he came to the plaintiff's parental house and demanded that she be immediately sent back with him, to which her parents objected and said that it was impossible and improper to allow her to go at that time as she could be treated better for the illness at their place, whereupon the defendant in a rage and in one breath uttered the words of talaq thrice over, which left the plaintiff's parental side completely aghast, but the defendant immediately went back; that the plaintiff was spending the period of her iddat which was due to end on 12th of Oct. 1969. Apart from making the claims referred to above, certain more facts were mentioned in the plaint. It was stated that having gone away as aforesaid after divorcing the plaintiff on 22nd June, 1969, the defendant returned to the plaintiff's parental home during her father's absence with 4 motor cars and many helpers in order to forcibly take her away, but the mohalla people did not permit him to do so and he went back threatening that he would arrange to take the plaintiff away by force and then rest only after killing her by sprinkling acid on her body; that on reaching back home the defendant sent a letter on 30th June, 1969, to the plaintiff's father who was employed at Kanpur pleading with him to send the plaintiff, claiming that although he had given talaq but the same was revocable inasmuch as he had uttered it only once and declaring that it was not an irrevocable 'Talaq'. The plaintiff's father did not consider it necessary to give any reply to the letter. The plaint goes on to allege that two days thereafter, the defendant sent on 2nd July, 1969, a letter to the plaintiff and therein also he stated that the 'Talaq' was uttered only once and was revocable and requested the plaintiff to go back to him. No reply was given thereto also. Instead, on 8th July, 1969, the plaintiff through her father caused a notice to be sent to the defendant, claiming that the 'Talaq' given by the defendant to the plaintiff was irrevocable. This notice was duly served on the defendant. The plaint alleges that the defendant thereafter sent a reply dated 11th July, 1969, to the plaintiff's father making wrong allegations and threatening criminal action against him.

3. In defence, it was stated that the amount of dower settled was only Rs. 140/- and the detention of any of the dowry or articles of dowry was denied. The defendant claimed that there were no differences between the parties; that the plaintiff had been called to her parents home on 13th May 1969, on the allegation that her mother was seriously ill on which the defendant himself took her to her parental home in a taxi. With regard to the incident of 22nd June, 1969, it was alleged by the defendant that when he reached the plaintiffs parental home, all kinds of wrong complaints were made to against him and he was told that her father had ordered that she would not be allowed to go with him at any cost unless he separated from his own family and started living in a separate house with the plaintiff; that the only other alternative offered to the defendant was to live with the plaintiff at her parental home, at which the defendant uttered the word of 'talaq' but only once and not thrice; that he never intended to irrevocably divorce the plaintiff and the talaq which he gave was revocable, as he only wanted to have control over the situation so as to give the plaintiff and her people an opportunity to think over the matter coolly; that despite all this, they did not permit the plaintiff to go with him. The defendant further pleaded that after coming back home he narrated the whole incident to his mother who expressed the desire to herself go to the plaintiff's house in order to resolve the tangle and accordingly he took his mother to the plaintiff's parental home on 28th June, 1969, and although the plaintiff was prepared to come along with the defendant, her family members did not permit her to do so; that thereafter the defendant wrote a letter to the plaintiff's father on 30th June, 1969, and to her on 2nd July, but they had no effect; that there was even a meeting of the relatives and well-wishers who tried to persuade the plaintiff's father to send her with the defendant; that he did not agree and instead sent a wrong, self-serving notice under the plaintiff's signature to which the defendant sent a correct reply and even filed a suit for restitution of conjugal rights, being Suit No. 1073 of 1969, against the plaintiff, which was pending in the Court of Additional Munsif, at Gorakhpur; that the suit giving rise to the present appeal was filed by way of 'Peshbandi' and was false: that the divorce had been revoked within a week and the defendant was throughout trying to have the plaintiff back who, accordingly, continues to be his wife; that there was never any irrevocable divorce nor is the plaintiff entitled to any maintenance during the period of 'iddat'; that the suit had been filed at the instance of the plaintiff's father; that the payment of dower had been excused by the plaintiff long ago but in spite of that the defendant had paid about Rs. 1,000/- in instalments to the plaintiff and he is not liable to pay anything on account of dower. With regard to the articles of dowry, claimed by the plaintiff, the defendant alleged that the items were few, the household utensils were worn out and only an ordinary wooden masahri (bed) remained with him, and the ornaments and clothes which the plaintiff had received in dowry, or which had been presented by the plaintiff's relatives, had been taken away by the plaintiff with her. It is not necessary to refer to the pleadings with regard to the maintenance of the child because she died during the pendency of the suit in the trial Court. An additional written statement was filed as also replication.

4. The trial Court found that it had jurisdiction to try the suit; that the plaint bore the signatures of the plaintiff and the suit had been filed by her; that the suit was not barred by estoppel, nor by Section 34 of the Specific Relief Act; that the amount of dower settled between the parties was Rs. 975.65 and that the defendant was liable to pay the same even if the marriage has not been dissolved by the 'talaq'. On the main issue whether the defendant had divorced the plaintiff, such as to bring about a dissolution of the marriage, the trial Court held that the talaq given by the defendant to the plaintiff was 'talaq rajai'' which is a form of talaq ahsan, and before the period of iddat had expired and although the plaintiff gave him a notice of dissolution of the marriage, the defendant tried to take her to his house and if she had gone with him, the pronoucement of the talaq would have been revoked by the resumption of intercourse, that the defendant even filed a suit for restitution of conjugal rights; and that there was, as such, no divorce and no dissolution of the marriage, with regard to the plaintiff's claim for maintenance, the trial Court held that the notice of dissolution of marriage could have been given only after the expiry of the period of iddat and a suit could have been filed only thereafter; and that the plaintiff was not entitled to any maintenance because the suit had been filed even before the expiry of the period of iddat and the plaintiff did not go hack to the defendant's house of her own will, although there was no complaint about the defendant's conduct. With regard to the articles of dowry, the trial Court held that they must have been used up during the period of 2 years and 3 months which had passed after the marriage. The claim for maintenance for the deceased daughter was also negatived.

5. Before the lower appellate Court, the question raised for determination was whether there has been an irrevocable divorce between the parties, and on this question it held that the divorce was revocable and the defendant having expressed his intention to take the plaintiff back and having also instituted the suit for restitution of conjugal rights, he had acutally revoked the divorce, and the marriage between the parties could not be said to have been dissolved. The alternative plea, even if the divorce was held to have been revoked the plaintiff is entitled to get the marriage dissolved under the provision of the Dissolution of Muslim Marriages Act, 1939, was also negatived. The claim for maintenance for the child was negatived on the ground that she was dead, and that for the plaintiff herself on the ground that she was living with her parents, of her own free will, and had neither been divorced nor deserted nor-ill-treated by the defendant. The claim for return of articles of dowry and ornaments, etc., was also negatived.

6. Mr. V.P. Misra, learned counsel for the appellant, did not challenge before me the finding that the talaq given by defendant to the plaintiff was a talaq rajai and was, accordingly, revocable but he urged that the only manner of revocation of such a talaq is, either by resumption of sexual intercourse, or by pronouncement of specific words of revocation in the presence of two witnesses. I do not, however, find any authority for the proposition that unless it be by resumption of sexual intercourse, a Talaq Rajai could be revoked only by pronouncing specific words of revocation before two witnesses. According to Mulla, principles of Mohamedan Law, para 312, a talaq in the Ahsan ('mode becomes irrevocable and complete on the expiration of the period of Iddat, and until a talaq becomes irrevocable, the husband has the option to revoke it, which may be done either expressly, or impliedly as by resuming sexual intercourse,

7. According to Tyabji's Treatise on Muslim Law Para. 157, (Page 170), under Hanafi and Shiite law, the revocation of a talaq may be implied or conclusively presumed from the conduct of the husband even though he be of unsound mind and that under Shafi law, the revocation must always be express or by resumption of sexual intercourse. Two illustrations of this have been given by the learned author.

'(1) H pronounces a single revocable talaq against his wife and then says, I have retained thee, 'or' my wife, or has sexual intercourse with her, or kisses her with desire or looks on her nakedness with desire. The pronouncement is revoked under Shiite and Hanafi law.

'(2) H pronounces a talaq against his wife while absent from her, and then enters her apartment on his return; under Shiite and Hanafi law the pronouncement is revoked.'

The period of iddat prescribed by Muslim law is 90 days. In this case the suit was filed even before it had expired. On the facts alleged in the plaint, it is obvious that the defendant had by his conduct after 22nd June, 1969, revoked the talaq within a week of giving it, when he personally went to fetch the plaintiff, and by expressly stating before two Muslims that he had revoked the talaq, There is no reason to disbelieve the defendant, and his conduct, admitted by the plaintiff herself in the plaint, is ample proof of the fact that he had not Irrevocably divorced the plaintiff on 22nd June 1969, and whatever he did or say that day by way of talaq was revoked on 28th June, 1969. No other point was pressed before me.

8. In the result the appeal fails and is dismissed, but in the circumstances of the case, I direct the parties to bear their own costs throughout.


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