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March 2007
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Triple Talaq not Enough for Divorce: Mumbai High Court
By A Staff Writer
Mumbai


In 1989, Dilshad Begum was driven out of her house by Pathan, after eight years of marriage.


In a recent judgem-ent, Justice B. H Marlapalle held that the divorce between Dilshad Begum and Ahmadkhan Hanifkhan Pathan was not legal and valid as the husband had not gone through the pre-conditions of arbitration and reconciliation prescribed by the Muslim law.


“The reasons for divorce, appointment of arbiters, the arbiters resorting to conciliation proceedings and the failure of such proceedings or a situation where it was impossible for the marriage to continue, have not been proved in this case,” said the judge, reiterating the landmark judgement by a full bench of the High Court in similar circumstances in 2001. A full HC bench had then held: “Mere pronouncement of Talaq by the husband or merely declaring his intentions or his acts of having pronounced the Talaq is not sufficient and does not meet the requirements of law.”


In 1989, Dilshad Begum was driven out of her house by Pathan, after eight years of marriage. A local court at Baramati asked Pathan to pay maintenance of Rs 200 each to Dilshad and their daughter.


Pathan challenged the order of maintenance in the sessions court on the grounds that under Muslim law, a divorced woman cannot get maintenance under CrPc. The sessions court upheld this argument and quashed the order of maintenance.


Dilshad filed an appeal in the high court which accepted the fact that her husband had indeed pronounced Talaq in 1994. According to Pathan, in 1994, he had pronounced Talaq thrice in a mosque and produced two witnesses in court to testify to this fact. He added that a Talaqnama along with an advocate’s notice and ‘Meher’ (money paid by the groom to his wife at the time of marriage), amount of Rs 125 and the maintenance amount during ‘Iddat’ (three menstrual cycles from the pronouncement of Talaq), of Rs 600 was sent to his wife by money order.


However, Justice Marlapalle then proceeded to examine whether the Talaq in question was valid as per the Muslim law. Relying upon an earlier judgement of the full bench of the Bombay High Court, Justice Marlapalle observed that “before divorce is finalised, there has to be an attempt at reconciliation. Before Talaq is pronounced - orally or in writing - there has to be an effort for reconciliation between the couple with the help of arbiters”, Justice B. H Marlapalle stated, holding the divorce in question as null and void.


“Conveying reasons for divorce, appointment of arbiters, resorting to conciliation proceedings to bring about a reconciliation and failure of such proceedings should precede the pronouncement of Talaq,” the judge noted.


None of these preconditions were met in the present case, the court said, holding thereby that since divorce was not legal, Dilshad was entitled to get maintenance under CrPc.