1. This Criminal Reference has been made by the learned Sessions Judge, Srinagar, under Section 438, Criminal Procedure Code for quashing the order of the learned First Additional Munsiff, Judicial Magistrate, 1st Class, Srinagar, dated 31st March 1979, holding the divorce between the parties as valid under Shia Law.
2. This reference was pending disposal before the learned single Judge and his Lordship has referred it to the larger bench for an authoritative pronouncement on the following questions. -
i. Whether under Shia law it was necessary for a valid divorce that the same should be in Arabic?
ii. If it is necessary that it would be pronounced in presence of Imam and 'two Aadil' witnesses? and
iii. What was the meaning of 'Aadil' in Shia Law :
The facts giving rise to this reference are briefly stated as under.- Dilshada Masood, petitioner herein was married to respondent Ghulam Mustaffa. She was allegdely deserted by her husband. She filed an application under Section 488 of the Criminal Procedure Code before the learned Judicial Magistrate for getting maintenance allowance from him. After a thorough enquiry the learned Magistrate ordered the respondent husband to pay monthly allowance of Rs. 50/- to her. A revision came to be filed against the said order before the learned Sessions Judge at the behest of the respondent, which was dismissed. When the maintenance order came in for execution, the respondent husband raised a plea that he has divorced the petitioner on 31st December, 1975 and, therefore was not bound to pay the maintenance allowance to her. This plea did not find favour with the learned Magistrate who rejected his application. A revision came to be filed before the learned Chief Judicial Magistrate against the said order. The Chief Judicial Magistrate made a reference to the High Court for setting aside the said order of the Magistrate. The High Court while disposing of the said referenceordered that the respondent shall pay the arrears of maintenance as claimed by the petitioner till the date of the alleged divorce. As regards the remaining arrears of maintenance it however directed the trial court to record a finding about the validity or otherwise of the alleged divorce and then pass orders accordingly. The learned Magistrate, therefore, recorded some evidence as led by the respondent. Thereafter he returned a finding that the divorce was valid under Shia law and therefore the petitioner was not entitled to any maintenance from the date of the said divorce. The said order was challenged by the petitioner in a Revision before the learned Sessions Judge, Srinagar, who has made this reference for setting aside the same.
3. We have heard the learned counsel for the parties and have examined the entire record. It may be stated at the very outset that the questions formulated by the learned single Judge all relate to jurisprudential interpretation under Shia Law and therefore we had to consult some of the important text books of that law particularly TAHRIR-UL-WASILA', 'SHRAH LUMA' and TAUZIHUL-MASAIL. Not only that, one of us (Rizvi, J.) even consulted some eminent jurisprudents having good knowledge of Shia Law.
4. Now so far as the first question as formulated by the learned single Judge to be answered by this bench is concerned, it relates to validity or otherwise of a divorce not pronounced in Arabic. In this regard reference may be made to page, 329 of 'TAHRIR-UL-WASILA' by Imam Khumani holding that divorce is not operative unless uttered orally in a specified form. Similarly in the same text, question No. 3 at page 329 shows that divorce cannot be operative if pronounced in other language than Arabic except in some special circumstances.
5. From the above citations it is clear that under Shia Law divorce must be pronounced only in Arabic and that too in a specific form. It is not however necessary that the husband himself must be knowing Arabic. He can engage the services of an agent who knows Arabic to pronounce the same on his behalf. It is only it nobody knowing Arabic is available that in specialcircumstances it may be pronounced in any other language.
6. In the instant case the divorce has not been pronounced in Arabic though Arabic knowing people are available in abundance. What the respondent has done, he has told the Magistrate Shri Behari Lal Bhat that he has divorced his wife and at that time two lawyers Mr. Zulfkar and Mr. Amin were present. Prior to that he had sent a written divorce to the petitioner. Both such divorces are unknown to Shia Law and would not operate as divorce. The statement of the respondent before the Magistrate that he has divorced his wife was not pronounced in Arabic and therefore it would not operate as divorce under Shia Law. The divorce in writing without its pronouncement in Arabic in a specified form is also unknown to Shia Law. If the divorce is put into writing, even then it is to be pronounced in Arabic in the specified form by the husband or by his appointed agent in presence of two witnesses who are ''Aadil' i.e. of approved probity. The meaning and connotation of the word' Aadil' will be enumerated in the answer to the question framed in this behalf. Suffice to say here that the divorce allegedly given by the respondent either before the Magistrate or in writing is both violative of Shia Law and therefore not valid.
7. Now so far as the second question is concerned it relates to mode of pronouncement of divorce under Shia law. In this context reference may be made to question No. 9 at page 331 Vol. II, TAHRIR-UL-WASILA' providing pronouncement of divorce in the presence and hearing of two 'Aadil' witnesses. This is an established principle of Shia Law that pronouncement of Talaq (divorce) must be uttered orally in the presence and hearing of two male witnesses who are Muslims and of approved probity. It is not however necessary nor has it been provided anywhere in any text of Shia Law that the divorce must be pronounced in the presence of 'Imam'. The only mandatory requirement for a valid divorce is that it must be orally pronounced in Arabic in the presence and hearing of two 'Aadil' witnesses.
8. In the instant case the divorce has not been pronounced in the presence andI hearing of two 'Aadil' witnesses. Firstly it was not pronounced in Arabic in the prescribed form. Secondly it was not so pronounced in the presence and hearing of prescribed witnesses. The lawyers of the Court in whose presence the respondent stated to the Magistrate that he has divorced his wife, can by no stretch of imagination be considered as 'Aadil' witnesses. 'Aadil' is a very exalted term which will be enumerated in the last question. Suffice to say here that the lawyers mentioned above cannot be deemed even as a shadow of 'Aadil' witnesses.
9. Now the third and last question relates to meaning of 'Aadil' witnesses in Shia Law. In this context reference may again be made to TAHRIR-UL-WASILA' and 'SHARAH-LUMA', wherein the characteristics of 'Aadir have been given, envisaging that the witnesses of divorce must not only be 'Aadil' but must also be major, sane and pious Muslims. 'Aadil' has been defined as one who follows strictly commandments of God as provided in 'Quran' and 'Sharia' and refrains from all actions forbidden therein. A Muslim has to offer prayers five times a day and if he without any reasonable cause ignores the same he cannot be deemed as 'Aadil' Muslim. Similarly a Muslim has been commanded not to tell a lie, and if he does so he cannot be termed as 'Aadil' Muslim. There are such ten commandments known as 'Faro Din' and if any Muslim commits a lapse in their observance intentionally he will deprive himself from this category.
10. In view of the answers given to the questions framed by the learned single Judge we are of the opinion that the divorce in question is invalid under Shia Law and such a divorce is unknown to Shia law.
11. After answering the questions as framed by the learned single Judge, we don't think it just and proper to refer the case back to the learned single Judge, This appears to be a case of pathetic nature and the respondent husband has been able to defeal the order of the learned Magistrate passed under Section 488, Criminal Procedure for the maintenance of his wife since long. He has filed frivolous revisions just to drag on the case and put his wife to utter frustration. Every person professing to be a Shia Muslim knows it very well that a divorce under ShiaLaw is to be pronounced orally in Arabic and that too in a prescribed formula, in the presence and hearing of two 'Aadil' witnesses. I The respondent being a Shia Muslim has with mala fide intention divorced his wife in a unique way which is unknown to Shia Law. He must be knowing its consequences also. No Shia Muslim will marry the petitioner unless she gets a proper divorce as provided under Shia Law as she continues to be the wife of the respondent. The order of maintenance has been passed as far back as on 30th June, 1973 and since then the respondent has with impunity defied the said order.
12. In these circumstances the reference made by the learned Sessions Judge is accepted and the order dated 3Ist March 1979 passed by the learned 1st Additional Munsiff, Judicial Magistrate 1st Class, is hereby quashed. As stated above the divorce allegedly given by the respondent is invalid under Shia Law and therefore the respondent is bound to maintain the petitioner. The learned Magistrate has ordered him vide his order dated 30th June, 1973 to pay a monthly allowance of Rs. 50/- to her, which order he has managed to defeat so far. It is now hoped that the learned Magistrate shall see to it that the order passed by him is complied with. He shall enforce his order without any further delay.
13. Let the record be remitted back to the learned 1st Additional Munsiff Judicial Magistrate 1st Class, Srinagar for enforcing the order of maintenance in accordance with law. The reference file pertaining to Sessions Court be returned to the learned Sessions Judge, Srinagar. The file of this Court be consigned to records. The parties shall appear before the learned Court below on August 22, 1985.
14. I agree.