Bombay HC Sets Aside Family Court's Order Holding Talaq Affected By Husband Under Muslim Law Null and Void [Read Judgment]

A division bench of Justice ZA Haq and Justice SM Modak were hearing Ahmed's appeal against the order of the Family Court dated October 23, 2012.

In the said order, Family Court has relied on the judgment of the Supreme Court in the case of Shamim Ara V/s State of U.P. and another reported in 2003 ALL MR (Cri) 344 (S.C.) to uphold the claim of the respondent-wife. The Family Court recorded that the Talaq as given by the appellant-husband cannot be considered as legal and valid, as it is not preceded by attempt of a reconciliation between the appellant and respondent.

According to the appellant-husband, he had issued three separate notices dated June 25, 2012, July 16, 2012, September 3, 2012 and October 1, 2012 calling upon the respondent-wife to resume cohabitation. The contents of the notices show that the husband had been repeatedly making attempts to bring his wife back from her parental house.

On the other hand, according to the respondent-wife, the contents of the notices are not correct and the appellant-husband had not made any such attempts.

However, in the cross-examination, respondent wife's father had admitted that a meeting was arranged on August 26, 2012 at the house of Abdul Hafij Abdul Rauf at Balapur to find out a solution, and he (wife's father) could not attend the meeting, as the child of the respondent was not well. Respondent wife's father further admitted that the appellant-husband had made three attempts for a settlement.

After going through the impugned order, the bench noted-

"We find that the learned trial Judge has referred to the judgment given by the Hon'ble Supreme Court in the case of Shamim Ara (supra), overlooking the facts and evidence in the present case."

Moreover, Court referred to the cross-examination of respondent wife's father and observed-

"This witness has volunteered that they were also ready for settlement. This evidence shows that repeated attempts were made for reconciliation. After examining the matter in the light of this evidence, it can be said that the act of the appellant (husband) is in consonance with the basic tenets of Muslim Law. The judgment given by the Hon'ble Supreme Court in the case of Shamim Ara (supra) does not assist the respondent (wife)."

Court noted that the issuance of notice dated October 23, 2012 by the appellant is not in dispute. The said notice was executed in presence of two witnesses as required under the Muslim Law. Thus, allowing the appeal Court said -

"The intention of the appellant (husband) to give Talaq to the respondent (wife) is clear and there is no ambiguity in the stand of the appellant (husband) that he has given Talaq to the respondent (wife) on 22.10.2012. Though the Talaq is oral, it is communicated by the notice dated 23.10.2012.

We find that the Talaq is effected by the appellant (husband) in consonance with the requirements of Muslim Law and the learned trial Judge has failed to consider the evidence in the right perspective. Hence, the impugned judgment cannot sustain the scrutiny of law."

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