Srinagar- It is not enough that Talaaq (divorce) is pronounced in presence of two witnesses but they must be “endued with justice”, the High Court of J&K and Ladakh has said.
A bench of Justice Vinod Chatterji Koul made the observation while dismissing a plea by a man from Budgam in which the issue according to the Court was whether the proceedings under Section 488 Cr.P.C. for maintenance can be quashed because the petitioner (man) pleaded that he has divorced his wife.
“…..for making divorce (Talaak) valid, it is not enough that it is pronounced in presence of two witnesses. The witnesses must be endued with justice as the purpose is to ensure that the witnesses, prompted by their sense of justice, may request and persuade the spouses on the verge of separation, to calm down, resolve their disputes and lead a peaceful marital life,” the court said, adding, “It also appears that a husband to wriggle out of his obligation under marriage including one to maintain his wife, claiming to have divorced her has not merely to prove that he has pronounced Talaak or executed divorce deed to divorce his wife but has to compulsorily plead and prove that effort was made by the representatives of husband and wife to intervene, settle disputes and disagreements between the parties and that such effort for reasons not attributable to the husband did not bear any fruit; that he had a valid reason and genuine cause to pronounce divorce on his wife; that Talaak was pronounced in presence of two witnesses endued with justice; that Talaak was pronounced during the period of tuhr (between two menstrual cycles) without indulging in sexual intercourse with the divorcee during said tuhr.”
It is only after the husband pleads and proves all these ingredients that divorce—Talaak— would operate and marriage between the parties would stand dissolved “so as to enable husband to escape obligations under the marriage contract, including one to maintain his wife,” the Bench said.
“The Court in all such cases would give a hard look to the case projected by the husband and insist on strict proof.”
The High Court was hearing a case where an estranged wife had initially secured an ex-parte maintenance order in 2009. This was challenged by the husband. The dispute reached the High Court and the matter was remitted back to a trial court in 2013.
In February 2018, the trial court ruled in favour of the husband by finding that the parties were no longer married. However, an Additional Sessions Court (Revisional court) set aside this order and directed the man to pay a monthly maintenance of Rs 3,000 to the wife. This was challenged by the man before the High Court in 2018.
“In the case in hand, petitioner (man) has placed on record a copy of Talakname, which on its perusal reveals that petitioner has mentioned therein that he puts an end to the wedlock by three pronouncements of “Talak”. The Revisional Court has taken into account the statements of two persons…. which would show that they had gone to the house of respondent (woman) intimating here that appellant (man) wanted to divorce her but she did not accept the proposal and as such, conversation was not successful,” the court said, adding, “It has also been found that efforts for reconciliation were not coming to fore inasmuch as the decision of divorcing respondent (woman) was conveyed to respondent (her) and there had been no sufficient evidence to establish reconciliation from the side of petitioner (man).”
The Revisional Court, the Bench said, has also rightly considered the rival contentions of the parties and come up with judgement, setting-aside the Trial Court order and directing man to pay an amount of Rs.3000 per month to woman as maintenance.
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