Family law notes:

Judicial and Extrajudicial divorce.

Extra Judicial Divorce for wife:

Khula

Talaq-e-Tafweez

Extra Judicial Divorce for husband:

Talaq-e-Sunnat

Talaq-ul-Biddat – Triple Talaq

By Mutual Consent:
Mubarat

Talaq-e-Tafweez – Delegation of Talaq power to the wife by the husband. Once the delegation is
done, both of them have the right of Talaq.

Khula – Divorce initiated by the wife. She makes an offer of dissolution. The divorce is caused when
husband accepts offer of dissolution.

Jameela unhappy with husband. Goes to the prophet and says I don’t my husband and his
appearance. I want to end this marriage. Prophet asks whether reconciliation is possible. Then she
vehemently says she would probably overstep her bounds if marriage is not ended. Prophet
summons husband and tells him to divorce.

In Khula, wife is expected to return her meher. Women prefer the Khula route. They prefer going to
the local Shari Adalats to make their case. Reason is speedy cheaper settlement of dispute. Once a
woman approaches the Khazi is to ask the husband to pronounce Talaq on her. In that case, she
won’t lose her Meher. As it is divorce is a stigma, and its against the wife.

In case wife is not happy with the Sharia Adalat, she files for divorce under DMMA.
No fault divorce is not recognized in the HMA or SMA.
There is a partial recognition of no-fault divorce. If the court passes the decree of RCR, and there is
no co-habitation, then that becomes a ground for divorce.

There is a gap between doctrine and practice. Doctrine does not involve husband’s consent. Khula.

TALAQ:

Talaq-e-Sunnat: Talaq in accordance with the Sunna.

Divorce by a whim or a unreasonable cause or in drunk state is not valid.

Talaq-e-Sunnat (Revocable):

1. Ahsan (Most approved): Single pronouncement during a period of Tuhr.

It should be followed by abstinence during Iddat. After 100 days, marriage ends. It’s a time
for them to rethink the Talaq during period of Iddat. No Halala for remarriage to former
spouse.

Halala – No fucking clue

2. Hasan (approved) : Three successive pronouncements during three periods of Tuhr. Talaq
becomes final on third pronouncement. Halala for remarriage to former spouse.

In Ahsan, it is possible for them to remarry one another post divorce. With fresh nikka and fresh
Meher post period of Iddat.

In Hasan, Halala is necessary for them to remarry.

He will ask a friend to marry her and tell him to pronounce Talaq on her and then she’s available
again.

Halala should have happened in the natural course of events. On her own accord, not checking of
box, things should have happened organically. Depends on her consent.

Historical context, to the husband, should you pronounce Talaq on her thrice, beware because she
won’t be back easily. It was about granting greater rights to women.

It is better to be divorced under Ahsan because of all this. It is the most preferred and approved.

Talaq-ul Biddat (Non-Revocable)

Instantaneous Triple Talaq – immediate dissolution of marriage. Halala required.

Not valid under Shia law
Difference of opinion in Sunni law – valid or single revocable Talaq.

Because of a very high possibility of husband misusing, prophet did not approve it.
Shia law never recognized Instantaneous Triple Talaq

Minority of Sunnis: Considered Instantaneous Triple Talaq should be like Ahsan form of Talaq. Single
pronouncement.

Masroor Ahmand vs NCT Of Delhi (Delhi HC) held single revocable talaq for Sunni Muslims.
TALAQ-E-TAFWEEZ

Power of Talaq-e-tafweez is granted in the Nikka document some times.

Nikka document has:

Parties to a marriage

Witnesses

Meher

Variety of Meher

Stipulations are also entered. Terms and conditions of marriage. Requirements one spouse is spelling
out for the other. Pre-nuptial agreements are not enforceable by law in India.

A way for women to balance matrimonial power. Rebalancing of matrimonial power.

DMMA

Accommodation of Talaq-e-Tafweez

Family Law 11th October 2022

Ahsance – Nice one

Judicial Divorce by Wife: DMMA Grounds

Bigomy by husband – Section 2 (8) f

Itwari vs Asghari and Ors

Abdurrahiman vs Khairunnisa
Itwari vs Asghari and Ors 1959

Wife filed for maintenance under 488 Cr PC Husband files RCR in response.

Issue: Whether the taking up of a second wife by the husband can operate as a ground for the first
wife to refuse living with him and therefore cause dismissal of his RCR petition.

Whether marriage 2nd of the husband will act as a reasonable excuse.

Whether mere taking of 2nd wife can be construed as cruelty.

In RCR matters, a court will be operating as a court of equity , i.e. conduct of petitioner is material.
Polygamy for a muslim husband is permitted, does not mean a muslim woman whose husband
marries a second time is without remedy. She may exercise talaq-e-tafweez or enforce DMMA.

Court will not come to the rescue of the polygamous husband in case of RCR given the prescription
of the Quran.

Court of equity – What is fair and reasonable to do. Justice fairness equity. In accord with Islamic
doctrine as well.

Second marriage is not a single, but a continuing wrong against the first wife.

Muslim law allows and enforces stipulations restricting the right of husband to take a second wife.

The fact that the second marriage of the husband makes talaq-e-tafweez available to the wife, other
possibilities as well when she does not feel comfortable, these possibilities mean that the principles
of Islamic doctrine prefer the breakdown of marriage rather than forcing the spouses to live with
one another.

Meaning of cruelty is ever – evolving.

3 principles:

1. Court is court of equity in RCR matters.

2. Islamic law – Unwilling first or second wife cannot be forced against her will to stay in a
polygamous union.
3. Meaning of cruelty is ever-evolving.

Bringing a second wife is a stinging insult to the first.

The stigma was not present in the past but now yikes.

Circumstances of the second marriage is material in deciding if the taking of the second wife in itself
is cruelty against the first wife.

Onus of disproving the presumed cruelty is on the husband. Only way is if he can prove the first wife
consented to the second marriage.

Abdurrahiman v Khairunnisa Kerala High Court.

That the husband treats her with cruelty, that is to say:
He has more wives than one, does not treat her equitably in accordance with the injunctions of the
Quran.

DMMA departure from classical law. It does not become automatic dissolution.

Abdurrahiman Page 10, Quran what say

That she had consented to a polygamous marriage, that she had lived with her co-wife happily for
some time or even that she had walked into such a polygamous marriage as a subsequent wife with
consciousness that she was only going to be a second wife in a poly marriage are all no effective
defences in a claim for divorce on the ground under section 2 (8) f of the act. No estoppel for
claiming divorce, if she perceives after such marriage, at any point of time that the husband has
treated her inequitably.

Khursheed Ahmad Khan v. State of U.P can be added to basket.

Yousuf Rawther v Sowramma, Kerala High Court, 1970

Wife files for divorce under section 2 (ii) of DMMA:

“That the husband has neglected or has failed to provide for her maintenance for a period of
two years.”

Sources utilized for interpretation

Pipe up?

Responsibility of the husband is absolute as long as the marriage subsists.

18th August 2022 Notes:

Shayara Bano v Union Of India

35 year old woman married for many years survivor of domestic abuse. Evidence of that existed.
Many times, she kept going back to her natal home, but she kept going back to the marriage. Not a
happy marriage.

Why did she keep going back?

Stigma
Financial security
For considerations of children. No broken homes.

She does not want to accept the Talaq Nama. She contests it.
Instantaneous Triple Talaq was mentioned in the divorce document for communication of divorce.

Requirements for Talaq – 5: You’ll figure it out.

The practice of ITT in her opinion is unconstitutional. Article 14, 15, 21, 25

Interveners:

Bebaak Collective and CSSS urged that -

Any practice or belief that does not conform with part 3rd of the constitution. It should not be
allowed.

Muslim Personal Law Board and Jamiat Ulema – e- Hind – Court has no jurisdiction to admit a
constitutional challenge. Using Section 2 of the Shariat Application Act.

Bhartiya Muslim Mahila Andolan and Majlis – Question of constitutionality have already been dealt
with by courts and ruled on the matter. Focus should be on remedies, whether practice complies
with the religion itself and the post dissolution remedies are to be focused on.

Issues:

1. Is ITT unconstitutional?
2. Is ITT unislamic?

3 opinions and finding the ratio:

Narasu Appa Mali Case extremely important.

Justices J S Khehar + Nazeer Ahmad – This statute (Shariat Application Act) has a limited purpose. It
declares what the applicable law for Muslims is going to be. The substantive aspects of the law are
not contained in the Shariat Application Act itself. They are uncodified and are not regulated by it. It
identifies this entity of Muslim personal law will govern Muslims. In large measures, however the law
is uncodified and is not regulated by Shariat Application Act that prompts them to say Shariat
Application Act does not govern ITT.

the State of Bombay vs Narasu Appa Mali:

Article 13(1) and Article 13(3):

All laws in force in the territory of India shall be void if they are inconsistent with the part III of the
constitution. Laws in force include laws passed or made by a legislature or other competent
authority. Only those laws source of which is the state, only they can be subject to test of
constitutionality. Source of uncodified law is not the state. Because of this, it’s a no go zone.

So no constitutionality test conclude Khehar and Ahmad. No, they don’t stop there. They say ITT
even if sinful, because it’s been there for centuries. It can be accommodated under Article 25.
Protection of Religious Practices. Bad in theology but good in law.

Nariman + U U Lalit – All comes within purview of Article 13. Not great argument. (Intent of the-
ITTlature was different) Because of the fact that Shariat Application Act has a large purpose ITT can
be put under test.
Kurian Joseph - ITT not open to challenge under Article 13

On constitutionality – 3:2 – not open to challenge

On being opposed to Islamic law – 3:2 – TT not part of Sharia

“What is bad in theology is bad in law as well” Paragraph 26 of judgement.

Legal consequence of Shayara Bano Case: Effect of ITT would be no effect.

Muslim Women (Protection of rights on marriage) Act 2019:

Criminilization of ITT.

Section 3 : Void and illegal

Section 4 : Imprisonment upto three years.
Section 7 : Offence to be cognizable, compoundable

If he ends up going to jail, no financial security. She cannot marry someone else.
Fulfilment of a certain kind of objective that’s ostensibly behind this law.

The welfare situation is not really taken care of. The husband can just desert the wife. Number of
deserted women far outnumber talaqed women.

Pronouncement of ITT cannot be ground for divorce.

Grounds of divorce in section 13:

Theories/ grounds of divorce:

1. Fault theory

1. Guilt/misconduct eg. Cruelty, desertion and adultery.

2. Fault grounds eg. Venereal disease, unsoundness of mind
3. Additional Fault grounds – eg. Apostacy, renunciation

2 . Non-fault theory / Grounds

1. Mutual Consent Divorce – 13 B
2. Irretrievable breakdown divorce [partially under section 13 (1) A]

There is a partial recognition of no fault in section 13.

Mutual consent. – Court gives 6 months and then they still say no we can’t then divorce.
It's not unilateral. Unlike the west.

Irretrievable Breakdown divorce – In case there is an underlying judicial separation degree or an RCR
has been passed. After passing, there is no cohabitation. Meaning there is an acknowledgement that
marriage has broken. Rather than continuing a marriage which is de facto its better to end than
continue misery. There is no ground that creates 13(1) A. It cannot be standalone. Needs a decree
backing.

Cruelty:

No definition of cruelty available in section 13.

Dastane vs Dastane:

Husband had filed for judicial separation on the ground of cruelty.

She crazy but they say cured. They agreed before that they could have her tested. They conferred
with family friend doctor and went ahead with the marriage.

Before 1976, it did not exist as a ground for divorce. Hence this dude asks for judicial separation.

Section 10 – Judicial Separation

There used to be a definition of cruelty when it existed as a ground for judicial separation.
It was expunged.

He is also citing unsoundness of mind as voidability. And also fraud saying they did not disclose all
illnesses.

Only remaining issue that went to SC was judicial separation on the ground of cruelty.

Whether the wife behaviour can be designated as cruelty?

Where is burden of proof?
What is standard of proof?

Definition pre-1976 -

Has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of
the petitioner that it would be harmful or injurious for the petitioner to live with the other party.
Lower threshold.

Danger to life, limb or health – Common law. Higher threshold.

Burden of Proof – The petitioner.

Standard of Proof – Preponderance of probabilities rather than “beyond reasonable doubt”

In the mind of the petitioner – Has significant role. It is a subjective standard.

Whether a conduct amounts to cruelty is dependant on its effect on a particular person.

Simple trivialities and wear and tear would not count. Temperamental disharmony would not count
as cruelty. Considerations should be grave and weighty.

Section 23(1) (b) :

Where the ground of divorce is cruelty, the petitioner has not in any way condoned the cruelty.

Condonation = Forgiveness + restoration (Paragraph 18)

However, forgiveness is conditional.

If after condonation, the respondent were to repeat matrimonial misconduct, original course of
action revives. She loves this reviving stuff. Repeating everything. Sondur case.

Husband says she committed fresh after condonation. (Wife wrote letter to boss saying he abuses
her and essentially asking for maintenance from his salary)

She in this specific case was pushed to the brim. In this period, husband had to go for bypass
surgery. She wrote letters then to him saying she wants to come back and be the dutiful (yikes) wife.
In response to that, she filed cases against her. Possibility of reconciliation blocked by husband.

So its not a fresh act of cruelty.

What is forgiveness really? Question.

V Bhagat vs D Bhagat

Mental cruelty – Reasonable apprehension is not a requirement.

Intention of cruelty is irrelevant.

Whether or not they meant is irrelevant. Effect on the petitioner matters.

Naveen Kohli vs Neelu Kohli

Marriage was only in law for 10 years not in fact. Broken marriage.
Numerous cases were filed against each other.
Husband wants divorce based on cruelty, adultery and she has failed a bunch of random ass cases
against him.

High court did not grant him divorce.

SC goes crazy on the High court.

It's in the interest of PP that they part ways. On the consideration of totality of facts, court
recommended Irretrievable breakdown of marriage as a ground for the grant of divorce.

Fun fact:
He was the adulterer. Wife not proven to be adulterous.

This case doesn’t contribute anything to the definition of cruelty. Cruelty has been seen subjectively.

JJ Act:

Section 2 (14)
Section 2(42)

Section 2(1)

Section 2(60)
Section 27,68

Section 39, 40 JJ Act

Section 2(2)
Section 2(58)
Section 2(29)

Vinay Pathak important paragraphs – Ratio Decendi. Para 13 Para 14 Para 17

Para 19 Para 20 Para 21 first two lines Para 26, Para 27 Para 31 Para 32 Para 34

Family Law Notes.

May be overlapping jurisdiction situation of maintenance.

She can file under two laws for maintenance.

Rajneesh vs Neha

SavitaBen vs State of Gujarat:

First wife began suspecting affair. Somehow, she discovered that he has married the mistress.
Desertion happens. She goes and files maintenance. He says nonono you were the second wife.

Second marriage is no marriage at all. No legal effects.

Law operates harshly against the woman who unwittingly gets into relationship with a married man
and section 125 of the Code does not give protection to such woman. This may be an inadequacy,
which only the legislature can undo.

Velusamy vs Pathchaiammal , 2010, SC:

Economic abuse is a part of domestic violence.
125 will intersect with section 26 and she need not file a separate petition.

Recognizing that PWDVA can come in and can give woman maintenance.

Paragraph 32 to 34 – Talks about conditions for relationship in the “nature of marriage”

Chanmuniya vs Virendra Kumar Kushwaha , 2010:

High Court said she was not legally wedded wife as per section7 HMA essential ceremony was not
performed.

SC takes a broader view. Rather than being tied down by strict proof of marriage, we should rather
be focusing on whether they have lived as husband and wife. Presumption of marriage is raised even
if strict proof not done.

125 has a social justice objective. Someone who isn’t able to maintain themselves should be able to
get it from someone who can.

Intention of the legislature is important.

Bench is stating that there needs to be a broader view of “wife” for the purpose of 125.
For 125 proceedings, these should be pre-conditions because woman has to be rescued from
vagrancy and destitution.

Indra Sarma vs V.K.V.Sarma 2013, SC:

Paras 35 and 36 of the judgement.

Para 54 and 55 – Parameters inexhaustive.

Para 64 – Alienation of Affection

Badshah vs Urmila Badshah Godse And Anr , 2014, SC:

Sad stuff

Rajnesh v Neha and Anr, SC 2020: