Introduction

• This case deals with the pronouncement of the triple talaq and the husband will be liable to pay maintenance after the talaq.

Facts

• Shamim Ara (appellant, wife) and Abrar Ahmed (respondent, husband) entered into marriage in 1968 under the Muslim Shariyat Law.
• In 1979, the wife, representing herself and her two minor children, submitted a complaint under Section 125 of the Criminal Procedure Code, 1973 (CrPC), citing desertion and cruelty by the husband.
• The presiding judge denied the maintenance request, contending that the wife was already divorced through triple talaq on 11^th July 1987 by the husband and, therefore, ineligible for maintenance.
• Dissatisfied with the decision, the wife sought revision before the High Court.
• The High Court determined that the alleged divorce by husband was not executed in the appellant's presence.
• Moreover, the husband did not assert that the communication of divorce had occurred; instead, it was deemed completed on 5^th December 1990 with the filing of the written statement.
• Consequently, the HC ruled that Shamim Ara was entitled to claim maintenance from 1^st January 1988 to 5th December 1990.
• Maintenance rights ceased after the latter date.

Issues Involved

• Whether the divorce to the wife became effective from 5^th December 1990?
• Whether the liability of the husband to pay maintenance would end or not on 5th December 1990?

Observations

• There is no evidence supporting the occurrence of talaq.
• The HC's acceptance of the plea of the husband as valid is based on the mention of talaq in the written statement and its subsequent communication to the wife on 5th December 1990.
• The court emphasized that merely raising the plea of a past divorce in a written statement does not automatically constitute a valid talaq at the time of delivering the statement to the wife.
• The burden of providing evidence for the pronouncement of talaq on 11^th July 1987 rested on husband.
• Failure to substantiate this claim resulted in the plea being considered unsuccessful.
• Additionally, the court pointed out that a plea of previous divorce in a written statement is insufficient to be recognized as the official pronouncement of talaq by either the husband or wife on the date of filing the statement in court, followed by delivering a copy to the wife.
• Furthermore, the court observed that the details of the alleged talaq, including the circumstances and individuals present during its pronouncement, were not adequately provided.

Conclusion

• The Court held that neither the marriage between the parties stands dissolved on 5^th December 1990 nor does the liability of the husband to pay maintenance come to an end on that day.
• The husband shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law.

Notes

Section 125 of CrPC - Order for maintenance of wives, children and parents — (1) If any person having sufficient means neglects or refuses to maintain—

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct.

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.

Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.

Explanation.—For the purposes of this Chapter,— (a) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 is deemed not to have attained his majority; (b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month’s allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation — If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.

(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.