When Muslim Wife Disputes Issuance Of Talaq, It Is Upon Husband To Obtain Judicial Declaration For Dissolution Of Marriage: Madras High Court

Justice GR Swaminathan noted that Talaq under Muslim personal laws involved a certain procedure which had to be strictly complied. The court thus observed that if the husband claimed to have given talaq to the wife, and the same was disputed by the wife, the only appropriate and legally permissible course would be for the husband to obtain a judicial declaration that marriage is validly dissolved.

“Talaq thus involves a certain procedure. In the very nature of things, strict compliance has to be insisted upon. If the husband claims that he had divorced the first wife by properly pronouncing talaq three times, and it is disputed by the wife, the question arises if the marriage has been validly dissolved. The issue cannot be left to the unilateral determination of the husband. That would amount to the husband becoming a judge of his own cause. The only appropriate and legally permissible course would be to call upon the husband to obtain a judicial declaration that the marriage has been validly dissolved,” the court said.

The court thus observed that when talaq was disputed, the burden was upon the husband to satisfy the court that he had pronounced the talaq in the manner known to law.

The court was hearing a civil revision petition filed by a husband against the order of the District and Sessions Jude confirming the order of compensation to the wife. The facts of the case was that the husband and wife were married as per Islamic rites and customs on April 18, 2010. In 2018, the wife filed a domestic violence complaint with the Judicial Magistrate under Sections 12(1) and (2), 18(a) and (b), 19(a), (b), (c), and 20(1)(d) and 22 of the Protection of Women from Domestic Violence Act. The Magistrate directed the husband to pay Rs. 5 lakh as compensation to the wife and Rs. 25,00 per month for maintenance of their child.

The husband challenged the order by claiming that he entered into the second marriage after dissolving the first marriage by pronouncing talaq in the manner known to law. This was disputed by the wife.

The court noted that while there was material to show issuance of first and second talaq notice, there was no material to show that the third talaq notice was served on the wife. The court noted that the wide had consistently deposed that she had been suffering at the hands of the husband who even subjected her to unnatural sex. The court also noted that while the wife made serious allegations against the husband, the husband did not bother to examine himself as a witness nor let in any evidence.

The court found the certificate issued by the Shariat Council shocking as it blamed the wife for not extending her cooperation in the talaq. The court observed that the certificate by the Shariat Council was not legally valid as only a court duly constituted by the State could deliver judgments.

The court also observed that as per the judgment of the Karnataka High Court in Yusuf Patel V. Ramjanbi, a Muslim man was entitled to contract a second marriage during the subsistence of first marriage but it would amount to enormous cruelty to the fist wife and she could claim damages and compensation for the cruelty.

The court thus held that while the husband was at liberty to have a second marriage, he did not obtain any judicial declaration that his first marriage was legally dissolved. The court thus held that the wife was entitled to claim damages and the order could not be interfered with.

Counsel for the Petitioner: Mr.K.C.Maniyarasu

Counsel for the Respondent: Mr. D.Srinivasa Ragavan

Citation: 2024 LiveLaw (Mad) 407

Case Title: ABC v. XYZ

Case No: C.R.P.(MD).No.2255 of 2023