India Divorce

Hindu Divorce in India

Muslim Divorce in India

India Supreme Court issues notice to US-based woman
10 Apr, 2007 Times of India

In a rare reiteration of its authority in a prayer for anti-suit injunction matter concerning a foreign court, the Supreme Court has issued a notice to the US-based wife of a Panchkula resident, who has filed a special leave petition (SLP) against the decision of the Punjab and Haryana High Court in dismissing his plea for restraining his wife from divorce proceeding initiated in New Jersey court.

The notice was issued by Justice Tarun Chatterji and Justice Dalvir Bhandari on the SLP filed by Rakesh Kumar after the preliminary hearing and the arguments advanced by his counsel in stressing that since his marriage with Ashima Kumar had been solemnised under the provisions of Hindu Marriage Act, 1955, its dissolution could be effected under the same act only.

Rakesh through the SLP has sought setting aside the order of January 27, 2007 of additional civil judge, Panchkula vide which ex parte ad interim injunction had been sought to restrain Ashima Kumar from pursuing/continuing with the complaint for divorce now pending before the superior court at New Jersy or in any other foreign court. The high court had held that no case for injunction was made out and that the petitioner has responded with a detailed reply to the summons from New Jersy court, has in fact amounted to his submission to that court. The petitioner's marriage with Ashima was solemnised at Dehra Dun on January 27, 2000.

A daughter, Devishi, was born out of the wedlock on September 30, 2002 and both Ashima and Devishi are Indian citizens holding Indian passports, hence governed by Indian law. The respondent left her husband's home taking along with the child. She also took away all her clothes, jewellry , valuables and a car. A DDR too was lodged with Panchkula SP in this regard on September 14, 2005. She later left for New Jersy, USA, on a tourist visa along with her daughter and is still residing there.

On December 28, 2006, Rakesh had received summons from the superior court at New Jersy where the Ashmia had filed a complaint seeking divorce, appropriate alimony, custody of the child, distribution of all property both real and personal, acquired by the parties during the course of marriage and allocating as well the material liabilities.

The petitioner's counsel extensively quoted from apex court decision including Y.N.Rao and others versus Venkata Laxmi and others 1991 holding that foreign courts where the husband is not domicile has no jurisdiction to dissolve the marriage and the decree of divorce if granted by such courts would be a nullity and will not have the effect of dissolving the marriage.

The counsel for Rakesh has highlighted that incidence of such cases where divorce proceedings are initiated in foreign courts against Indian citizens are on the rise. He also expressed his apprehension that unless anti-suit injunctions were issued by the courts in India, it would be extremely difficult and expensive for the affected individuals to fight legal battles in foreign courts, an option increasingly being exercised causing mental agony and hardship to the parties to the disputes.

Muslim board to divorce 'triple talaq'

Srawan Shukla
28 Jun, 2004 Times of India

In what may come as a big relief to the Muslim women, their husbands would not be able to get rid of their wives in future by simply reciting talaaq, talaaq, talaaq.

The All-India Muslim Personal Law Board is set to ban this practice from next month and ratify the new model talaqnama.

The Board is likely to adopt a resolution at its annual meeting of 41-member working committee on July 4 at Nadwa College, here.

The new talaqnama, carefully drafted by the Board clerics after carrying out deliberations for three years, disapproves of the age-old three-talaaq system and replaces it with the Shariat-approved 'phased-talaaq'.

Though the draft of the new talaqnama was already approved in Board's Patna meeting in October 2003, it was awaiting a final nod from the 41-member working committee, Board's highest-decision making body.

Under the new talaqnama, the separating couples would be given a minimum of three months to reconcile, instead of shauhar (husband) just firing talaaqs to separte without giving any chance to his begum.

Board also recommends increase in ‘Mehr’

Muslim women, who virtually had no separation rights till now, have also been given equal rights to approach the Qazi for separation against their erring husbands.

"It's all being done as per Shariat. Instead of three talaaq at one go, couples would be given three months to reconsider their decision and if they insist on separation even after the expiry of the said period, the Qazi is empowered to formalise talaaq as per the new talaqnama," said Zafrayab Jilani, a Board member.

The Board would print the new talaqnama forms in large numbers in Urdu as well as in regional languages and make it mandatory for all the couples to fill it at the time of marriage.

The Board is also recommending increase in 'Mehr', which is fixed at the time of marriage. Parents would be advised to fix a staggering amount to protect matrimony of their daughters.

However, the Board has fixed no upper or lower limit for it. The amount would be decided mutually by both parents. It's being done mainly to discourage talaaqs.

"It will be a welcome step in the direction of reforming the Muslim society in India. The new talaqnama would drastically bring down the number of talaaq cases as no sensible husband would dare to breach the new talaqnama," claims Jilani.

Bombay High Court verdict requiring the husband to satisfy all legal preconditions before exercising his right for talaq comes as a great relief to Muslim women.

T.K. RAJALAKSHMI
in New Delhi

IN a significant ruling that will affect positively the rights of Muslim women, the Aurangabad Bench of the Bombay High Court held on May 2 [2002] that a mere pronouncement of talaq by the husband, or a mere declaration of his intention, or his acts of having pronounced talaq were not sufficient and did not meet the requirements of Islamic law for a divorce. The court said: In every such exercise of right to talaq, the husband is required to satisfy the preconditions of arbitration for reconciliation and reasons for talaq. Conveying his intention to divorce the wife are not adequate to meet the requirements of talaq in the eyes of law." The verdict of the three-Judge Bench comprising Justices B.H. Marlapalle, N.V. Dabholkar and N.H. Patil will be binding on the State of Maharashtra and have persuasive value for other States as well.

The Bench reiterated the need to prove disputed pleadings under the process laid down by the Civil Procedure Code and the Indian Evidence Act, 1872. It said: "Pleadings before the court, though made on oath, either in writing or in oral form, when disputed by the wife, are required to be proved and when it comes to proving all these pleadings, the process is governed by the common law, that is, the Civil Procedure Code and the Indian Evidence Act, and mere statement on oath, either in writing or in oral form itself, does not prove the factum of divorce as well as valid or effective divorce. If the talaq pronounced is ineffective or invalid, it is no divorce under the Mohamadan Personal Law."

It said that even in the case of the irrevocable form of talaq pronounced in the presence of a qazi or the wife's father or two witnesses (both of them professing Islam), the factum of this form of talaq is required to be proved if challenged before a competent court in appropriate proceedings. The qazi, the father, or the witnesses could be examined. Their presence when the husband pronounced talaq and his pronouncement of talaq were required to be proved if the factum of valid talaq was questioned by the wife.

The judgment said: "Mere assertion by the husband in any form is not sufficient to hold that he has exercised the right to give talaq legally and validly. If any of the witnesses does not profess Islam, the talaq given in his/her presence shall be invalid and inoperative."

In essence, the judgment has underscored the importance of the procedures preceding divorce in accordance with Islamic law. If the husband is unable to prove his statement regarding divorce given earlier before the court, his claims regarding the talaq are invalid in the eyes of law and such a statement cannot be taken as a fresh declaration of divorce, as a mere declaration of divorce is not by itself sufficient for a valid divorce. Even if such a statement in writing is supported by a talaknama, which may be a record of the fact of an oral talaq or the deed by which the divorce was effected, that supportive document by itself would not lead to the conclusion that the talaq was valid, effective and legal. The Bench also ruled that unless the fact of divorce was proved, documents relating to the registration of the talaq under the Wakf Act and the issue of a talaq certificate by the qazi had no sanctity.

The judgment, which came in response to a petition filed for maintenance under Section 125 of the Code of Criminal Procedure, essentially limits the indiscriminate use of talaq, though it has refrained from passing any directive on the right of a husband to pronounce it. The judgment is in no way contradictory to the tenets of Islamic law, which permits divorce but regards it as an undesirable act and the uncontrolled use of it as a sin.

In the case in question, Rahimbi of Ranapur taluk in Latur district was married to Dagdu Pathan and had three daughters from the marriage. When Dagdu Pathan divorced her, Rahimbi approached the Judicial Magistrate, Latur, with an application for maintenance for herself and her three minor children under Section 125 of the CrPC. Summons were issued to Dagdu Pathan who had subsequently married Khamrunbee. Pathan filed a written statement before the Judicial Magistrate opposing Rahimbi's claim that she and her daughters had been neglected by him and stated that he had divorced Rahimbi on February 24, 1996, in the presence of a qazi and two witnesses - a Muslim and a Hindu.

The plea was rejected by the Second Joint Judicial Magistrate on November 1998 and the maintenance application was allowed. When the petition came up in the High Court, it was deemed important as a controversy already existed over contrary views taken by two Division Benches in two previous cases concerning maintenance and talaq. The single Judge hearing the petition directed it to be placed before the Chief Justice for consideration to refer it to a Full Bench. The Full Bench looked into several aspects of Islamic law that related to talaq.

The Bench recalled an observation made by the Supreme Court in a case in which the constitutional validity of the Muslim Women's (Protection of Right to Divorce) Act, 1986, had been challenged (Daniel Latifi and Others vs Union of India). The apex court had in its September 28, 2001, order observed: ""In interpreting the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male-dominated, both economically and socially, and women are assigned, invariably, a dependent role, irrespective of the class of society to which she belongs."

The judgment also elucidated on the general principles of talaq as laid down in Islamic law. While a divorce by a husband is talaq either in the oral or written form, he cannot at his free will resort to any of the modes at any time without assigning reasons. Two arbitrators, one from either side, have to be appointed to bring about a settlement between the parties. Only if the discord persisted at an irreparable level could the husband have the right to resort to talaq. "Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by the arbitrators, one from the wife's family and the other husband's. If the attempts failed, talaq may be effected," the judgment held.

Regarding the prescribed procedure for talaq, it ruled that "the pronouncement of talaq... has to necessarily satisfy all these conditions of pronouncing the talaq at a particular time and such a talaq must be valid and effective. It is not that on his own sweet will the husband has the unqualified prerogative to exercise this right to pronounce talaq". Many of the references to Islamic law were drawn from the Compendium of Islamic Laws, a publication brought out by the All India Muslim Personal Law Board.

THE judgment has generally been welcomed. Anees Ahmed, an advocate in the Supreme Court, said that the landmark judgment established the legal requirement of providing divorce by the husband on the anvil of the Indian Evidence Act, 1872. It would ensure transparency in matrimonial transactions and was expected to go a long way in ensuring that there was some restraint on husbands rendering reckless talaqs, he said. Married Muslim men were known to pronounce orally triple "talaq" or give it in writing. There was no requirement to go to court and it was done totally at the whim and caprice of the husband, to give talaq without involving the wife, the lawyer said.

Ahmed, who has assisted the National Commission for Women in similar cases, said that most often, it was difficult for the wife to prove that the husband had actually divorced her because of the absence of documentary proof. Sehba Farooqi, general secretary of the National Federation of Indian Women, said that even if such evidence was there, it was never with the woman, and qazis seldom kept the papers relating to the nikaahnama or the talaknama. The judgment was good to the extent that it had given some relief to Muslim women, she said.

Sheba Farooqi said that a campaign to register all marriages and divorces was under way and some governments had responded positively to that.

Anees Ahmed welcomed the campaign as it ensured that all marriages and divorces were registered with either a religious body or with a secular (state) institution, such as the Registrar of Marriages and Divorces. This would enable the wife to prove that her husband had actually divorced her and she could claim maintenance and alimony according to the law. Otherwise, divorce rights of Muslim women involved protracted litigation, after filing a petition in a civil court to obtain a decree of divorce under the Dissolution of Marriage under Muslim Act, 1939, Anees Ahmed said.

Sayeeda Hameed, founder of the Muslim Women's Forum, said that the judgment was a step in the right direction. A former member of the National Commission for Women, she said that in a large number of cases talaq was being pronounced not in accordance with the injunctions of Islam. She said that the judgment was on expected lines as there was enough proof that Muslim women suffered from the profligate use of talaq. The spirit of the religion had always been to give relief to both the man and the woman when the marriage became intolerable but it was found that the system of dowry and the practice of polygamy were used increasingly against women. She said that the ruling was as historic as the judgment in the Shah Bano case, which had placed some obligations on the husband to pay maintenance to his divorced wife. The judgment was substantially diluted in the Muslim Women's (Protection of Rights on Divorce) Act, 1986.

Judicial interventions alone cannot effect reform but they are an essential step in that direction. Deeper social malaise exists and with the menace of dowry and rank consumerism touching abominable levels in every segment of society, only a combination of judicial and political interventions can uplift women.