Citations: AIR 2002 SUPREME COURT

3551:: 2002 AIR SCW 4162 Judgment

Supreme Court Of India
(From : Allahabad)*

Hon'ble Judge(s): R. C. Lahoti, P. Venkatarama Reddi , JJ

Shamim Ara, v. State of U. P.

Criminal Appeal No. 465 of 1996,, decided on 01/10/2002

(A)Muslim Law-'Talaq' - Plea of previous divorce taken by husband in written statement in proceedings
initiated by wife for maintenance - Cannot at all be treated as pronouncement of 'Talaq' by husband on
wife on date of filing of written statement in Court followed by delivery of copy thereof to wife - Neither
marriage between parties stands dissolved on date of filing of written statement - Nor does liability of
husband to pay maintenance comes to an end on that day. Criminal P.C. (2 of 1974) , S.125—

Syed Jamaluddin v. Valian Bee, 1975 Cri LJ 1884 (AP); Ahmed v. Khatoon, AIR 1933 Cal 27; Fulchand v.
Nazib, (1909) ILR 36 Cal 184; Sarabai v. Rubiabai, (1906) ILR 30 Bom 536; Rashid v. Anisa, AIR 1932 PC 25;
Abdul v. Azeeza, AIR 1944 Mad 227; Kathiyumma v. Urather, AIR 1931 Mad 647 and Cases referred by Dr.
Jahir Mahmood in his commentary 'Muslim Law of India' (Second edition at pp. 113-119), Overruled.

In the instant case the Muslim wife filed an application for maintenance under S. 125 for herself and her
children. The husband filed a written statement on 5-12-1990 wherein he made certain generalized
accusations against the wife and stated that ever since the marriage he found his wife to be sharp,
shrewd and mischievous, accused the wife of having brought disgrace to the family, the husband stated
that '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 nay, in whose presence talaq was pronounced have been
stated. Such deficiency continued to prevail even during the trial and the husband, 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;

Held, 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. There is no proof of talaq having taken
place on 11-7-1987. 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 husband 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.

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, filed in some previous judicial proceedings
not inter parte, containing a self-serving statement of husband, could not have been read in evidence as
relevant and of any value. Thus neither the marriage between the parties stands dissolved on 5-12-1990
nor does the liability of the husband to pay maintenance comes to an end on that day. Husband shall
continue to remain liable for payment of maintenance until the obligation comes to an end in
accordance with law.

Cri. R. No. 710 of 1993, D/- 28-2-1995 (All), Reversed.

1975 Cri LJ 1884 (AP); AIR 1933 Cal 27; (1909) ILR 36 Cal 184; (1906) ILR 30 Bom 536; AIR 1932 PC 25; AIR
1944 Mad 227; AIR 1931 Mad 647 and Cases referred by Dr. Jahir Mahmood in his commentary 'Muslim
Law of India' (Second edition at pp. 113-119), Overruled.
(B)Muslim Law-Talaq - Law as ordained by Holy Quran is (i) that 'talaq'@page-ALJ2511must be for a
reasonable cause; and (ii) that must be preceded by an attempt of reconciliation between her 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 fails, 'talaq' may be effected.(1981) 1 Gauhati LR 375, Approved.(Para14)

(Para 14)