Abdurahiman v. Ummu Habeeba and Farha Fathima

RP(FC)No.200 of 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 18[TH] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945** **RPFC NO. 200 OF 2022 AGAINST THE ORDER/JUDGMENT IN MC 48/2020 OF FAMILY COURT,** ## **MALAPPURAM** ## **REVISION PETITIONER/RESPONDENT IN M.C.:** ABDURAHIMAN, AGED 55 YEARS S/O. KUNHIMOIDEEN, THOTTATHIL HOUSE, MUNDUPARAMBU, MUNDUPARAMBU POST, MALAPPURAM DISTRICT, PIN - 676509 BY ADVS. K.M.FIROZ M.SHAJNA E.C.AHAMED FAZIL ## **RESPONDENTS/PETITIONER IN MC:** 1 UMMU HABEEBA, AGED 34 YEARS D/O. ABDUSSALAM, MUTHUPPURAM VEEDU, RAMAPURAM POST, PANANGANGARA, PUZHAKATRI AMSOM AND DESOM, MALAPPURAM DISTRICT, PIN - 679321 2 FARHA FATHIMA, AGED 6 YEARS (MINOR), MUTHUPPURAM VEEDU, RAMAPURAM POST, PANANGANGARA, PUZHAKATRI AMSOM AND DESOM, MALAPPURAM DISTRICT - 679321, REPRESENTED BY FIRST RESPONDENT MOTHER AND NATURAL GUARDIAN., PIN - 679321 BY ADV HENA BAHULEYAN **THIS REV.PETITION(FAMILY COURT) HAVING COME UP FOR ADMISSION ON 14.07.2023, THE COURT ON 18/8/2023 DELIVERED THE FOLLOWING:** RP(FC)No.200 of 2022 2 ## **V.G.ARUN J.** ------------------------------------R.P(FC) No.200 of 2022 **---------------------------------** Dated this the 18[th] day of August 2023 ## **O R D E R** The revision petition is filed challenging the order in MC No.48/2020 of the Family Court, Malappuram. The MC was filed by the respondents, claiming monthly maintenance allowance at the rate of Rs.6,000/- and 3,000/- respectively. The first respondent is the revision petitioner's second wife and the second respondent, the child born in that wedlock. In support of their claim for maintenance, the respondents had put forth the following averments and allegations; The Nikah between the petitioner and the first respondent was conducted on 24/5/2014. It was the second marriage of both parties. The first respondent's former husband is no more and she has two children from the first marriage. The revision petitioner's first marriage was in subsistence and he has two children out of that wedlock. The petitioner envisioned interest in marrying the first respondent and for that purpose sent Ext.P1 request to the Khasi of the first respondent's Mahallu. In his letter the revision petitioner had stated that his first wife was laid up and her uterus may have to be 3 RP(FC)No.200 of 2022 removed surgically. As the petitioner had only two girl children out of the first marriage, he wanted a son to continue his lineage. The revision petitioner’s request was accepted and the Nikah was solemnized. After marriage, the petitioner and first respondent resided together in the first respondent's family house and later, in a rented house at a place called Ariprakolumbu. While so, the second respondent was born on 17/07/2015. Sometime later, the revision petitioner started to reside separately and neglected the respondents. On repeated requests by the first respondent, meagre amounts were given towards maintenance, that too, occasionally. The petitioner is a wealthy business man having landed properties and buildings. He is conducting a second hand car business and owns two cars, a Mercedes Benz and a Maruti Ciaz. The petitioner is earning more than Rupees One Lakh every month and is bound to maintain the respondents in accordance with his financial position and social status. 2. In his objection filed before the Family Court, the revision petitioner raised the following contentions; 3. The first respondent is no longer the petitioner's wife. He had divorced her by pronouncing talaq on 25/10/2016. Thereafter, the first respondent had received Rs.9,000/- as maintenance allowance for the Iddat period and Rs.3,71,000/- towards future maintenance, in RP(FC)No.200 of 2022 4 accordance with the personal law governing the parties. If the first respondent is not satisfied with the amount paid, her remedy is to move an application under the Muslim Women(Protection of Rights on Divorce) Act 1986('the Act' for short) and not to claim maintenance under Section 125 of the Code of Criminal Procedure. The amount required for maintaining the second respondent is being paid regularly and the petitioner is willing to continue the payment. The averment that the petitioner is a wealthy businessman is false. The petitioner is not conducting any business now, because of heart ailments. 4. Before the Family Court, the first respondent was examined as PW1, the Secretary of Cherpulassery Municipality as PW2. Exts.P1 letter and P2 photographs were marked on the side of the claimants and Ext.X1 Building Tax Assessment Register marked as court exhibit. On the revision petitioner's side, an alleged witness to the pronouncement of talaq and handing over of cheque for Rs.3, 80,000/- was examined as RW1, the revision petitioner as RW2 and Exts. D1 to D3 marked. The trial court, on appreciation of evidence and consideration of the legal contentions, found the sum of Rs.3,80,000/-received by the first respondent to be insufficient to satisfy the requirement of making fair and reasonable provision for the divorced wife mandated by Section 3 of the Act. The petitioner was therefore held liable to pay maintenance to the first respondent RP(FC)No.200 of 2022 5 until he discharge the liability under the Act and the quantum of monthly allowance was fixed at the rate of Rs.5,000/- to the first respondent and Rs.3,000/- to the second respondent. 5. Adv.M.Shajna, learned Counsel for the revision petitioner contended that the court below committed gross irregularity by directing the petitioner to pay maintenance under Section 125, after finding that the petitioner had paid Rs.3,80,000/- towards maintenance as per Shariah law. It is contended that the Family Court is not vested with the jurisdiction to decide on the adequacy of the amount paid towards reasonable and fair provision for maintenance. The first respondent’s remedy, if any, is under Section 3 of the Act and the Family Court is not vested with jurisdiction to decide that dispute. Reliance is placed on Section 127(3)(b) of the Code to contend that, receipt of maintenance allowance under any customary or personal law applicable to the parties will take away the divorced wife’s right to claim maintenance under Section 125. 6. Adv.Hena Bahuleyan, learned Counsel for the respondents, refuted the petitioner's version regarding pronouncement of talaq. It is contended that talaq, as contemplated under the Muslim personal law, was never pronounced. The averment that Rs.3,80,000/- was paid towards maintenance in accordance with the personal law 6 RP(FC)No.200 of 2022 governing the parties is an utter falsehood. That amount was given for releasing the gold ornaments of the first respondent pledged at the instance of the revision petitioner. Moreover, the amount was given by way of cheques drawn on the accounts of the petitioner's first wife and his daughter in the first marriage. 7. In reply, learned Counsel for the petitioner contended that in Ext.D1 petition filed before the District Legal Service Authority, Malappuram, the first respondent admitted that she came to know about a letter issued by the petitioner to the first respondent’s Mahallu about pronouncement of the talaq. Moreover, a witness to the talaq was examined as RW1. The witness had also stated that the first respondent's father was present on the occasion. 8. The primary question arising from the contentions advanced is whether the revision petitioner had divorced the first respondent by pronouncing talaq and if so, whether reasonable and fair provision was made for her maintenance. 9. It is true that in Ext.D1 petition, it is mentioned that the first respondent got information about the talaq from her Mahallu Committee. It is pertinent to note that in Ext.D1 itself the first respondent had clarified that, on being questioned about the letter received by her Mahallu about the talaq, the revision petitioner had RP(FC)No.200 of 2022 7 asserted that the letter was not sent by him, but his first wife. Moreover, the first respondent's specific contention that she and the revision petitioner continued to live as husband and wife till three months prior to the filing of Ext.D1, _ie_ up to March 2019, is not denied. The testimony of RW1, as to his presence along with the first respondent’s father at the time of talaq, cannot be believed, since the statement is at variance with that of the petitioner, who, during his cross examination categorically admitted that the first respondent's father was in Jeddah when the talaq was pronounced. 10. The requirements of a valid talaq had come up for consideration in **Shamim Ara v. State of U.P. and Another [(2002) 7 SCC 518]** . Therein, while approving the decisions rendered by the Gauhati High Court in **Jiauddin Ahmed v. Anwara Begum[(1981) 1 Gau.LR. 358]** and **Rukia Khatun v. Abdul Khalique Laskar[(1981) 1 Gau.LR.375]** , the Apex Court made following observations; “13.There is yet another illuminating and weighty judicial opinion available in two decisions of the Gauhati High Court recorded by Baharul Islam, J. (later a Judge of the Supreme Court of India) sitting singly in _Jiauddin Ahmed_ v. _Anwara Begum_ [(1981) 1 Gau LR 358] and later speaking for the Division Bench in _Rukia Khatun_ v. _Abdul Khalique Laskar_ [(1981) 1 Gau LR 375] . In _Jiauddin Ahmed case_ [(1981) 1 Gau LR 358] a plea of previous divorce RP(FC)No.200 of 2022 8 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 in spite 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 case_ [(1981) 1 Gau LR 375] the Division Bench stated that the correct law of _talaq_ , as ordained by the 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 views which, in their opinion, did not lay down RP(FC)No.200 of 2022 9 the correct law. 15. The plea taken by Respondent 2 husband in his written statement may be renoticed. Respondent 2 vaguely makes certain generalized accusations against the appellant wife 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, Respondent 2 proceeds to state, vide para 12 (translated into English) — “The answering respondent, feeling fed up with all such activities unbecoming of the petitioner wife, 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 Respondent 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.”_ 10. In the **Shamim Ara,** the Supreme Court also opined that there should be conclusive proof regarding pronouncement of talaq and mere assertions by the husband would not suffice. Paragraph 16 of the judgment being of relevance, is extracted hereunder; ''16. 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 RP(FC)No.200 of 2022 10 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. Respondent 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 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 the 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 partes, containing a self-serving statement of Respondent 2, could not have been read in evidence as relevant and of any value.” 11. The contention that the above observations in **Shamim Ara** are obiter was repelled by a Division Bench of this Court in **Kunhimohammed v. Ayishakutty [2010 SCC OnLine Ker.567].** The relevant portion of that judgment reads as under; RP(FC)No.200 of 2022 11 **“49.** The Supreme Court has stated unambiguously that the law of talaq as declared in the two decisions of the Gauhati High Court is correct. The requirements of a valid talaq are: (i) That the talaq must be for a reasonable cause; and (ii) It must be preceded by attempts 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 family. If their attempts fail, talaq can be effected. 50. These are the conditions precedent for a valid divorce as declared by the Supreme Court in _Shamim Ara_ (supra). To us, it appears that this declaration of law rhymes well with modem notions of marriage and the true Islamic concepts of marriage and divorce. The argument that these observations of the Supreme Court are only obiter does not appeal to us at all. Even if obiter, we hold that we are bound by the same. That declaration of law is consistent with modem notions of marriage and rhymes better with the human right to life recognized under Art. 21. It rhymes well with the concepts of equality under Art. 14 of the Constitution. Any contra interpretation does appear to us to be not valid, just or right; but arbitrary, unjust fanciful and oppressive. The contra understanding of the Muslim law of divorce would thus offend the concept of fundamental right to life and right to equality as explained in _Maneka Gandhi_ v. _Union of India_ ((1978) 1 SCC 248 : AIR 1978 SC 597).” ## 12. In the case at hand, except a vague allegation that the first respondent was not living as an ideal wife, no reason whatsoever was stated by the petitioner for divorcing her by pronouncing talaq. The petitioner has no case of having made any attempt at reconciliation before pronouncing talaq. As discussed earlier, the evidence of RW1 regarding his presence when talaq was pronounced cannot be accepted. The assertion of the first respondent that she and the revision petitioner was in conjugal relationship till March 2019 is not controverted also. In such circumstances, the petitioner's claim of having divorced the first respondent by pronouncing talaq can only be RP(FC)No.200 of 2022 12 discarded. In the absence of talaq, the question whether the petitioner had made fair and reasonable provision for maintaining the first respondent does not arise for consideration. The amount of Rs.3,80,000/-, if at all received by the first respondent, having been paid during subsistence of the marriage, cannot be reckoned as payment of maintenance allowance. The petitioner having categorically stated in Ext.P1 letter that he is capable of maintaining the first respondent and the children born in the marriage, the contention that the petitioner does not have the financial capacity to maintain the first respondent is also liable to be rejected. For the aforementioned reasons, the revision petition is dismissed. Sd/- **V.G.ARUN** **JUDGE** dpk