IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 64 of 2009 Mohd. Usman S/o Sri Mohd. Irfan R/o Village Tanda Bhanheda P.S. Manglaur, District Haridwar. ...…………. Petitioner / Appellant Versus Smt. Gulshan Ara D/o Shri Abrar Hussain R/o Banda Raod, Imran Furniture Wale Ki Gali, Moh. Mahigiran Roorkee, P.S. Kotwali Roorkee, District Haridwar. ...…………. O.P. / Respondent Mr. Manish Arora, Advocate for the appellant. Mr. Navneet Kaushik, Advocate for the respondent. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Alok Singh, J. Hon. Prafulla C. Pant, J. (Oral) This appeal, preferred under Section 19(1) of the Family Courts Act, 1984, is directed against the judgment and order dated 31.01.2009, passed by the Additional Judge, Family Court, Roorkee, District Haridwar, in Suit No. 118 of 2005, whereby the suit for relief of declaration of divorce filed by the husband (present appellant), has been dismissed. 2) Heard learned counsel for the parties and perused the lower court record. 2 3) Brief facts of the case are that appellant got married to the respondent on 2nd of May 2004, in accordance with Sunni Muslim Law, in Roorkee. The appellant (husband) is a lawyer. He alleged that after staying for some period with him, his wife, left to her parental house with all her belonging in June 2004. He further stated that his wife (present respondent) had an urban outlook and she was not ready to live with her husband. It is further pleaded by the husband that on 19.07.2004, at 03:15 P.M., he pronounced thrice ‘I divorce (Talak) my wife Gulshan Ara’, at ‘Majma Aam’, in civil court premises, in presence of the witnesses and got sent the intimation of said divorce to his wife (respondent). He has further pleaded that he also sought opinion from Darul-Ulum, Deoband, regarding validity of the ‘talak’ given by him and got an affirmative answer from there. It is further pleaded that the respondent even after being divorced, to pressurize the petitioner / appellant, got registered criminal case relating to offences punishable under Section 498-A, 323, 504, 506 of I.P.C. and one punishable under Section 3/ 4 of the Dowry Prohibition Act, 1961, against the petitioner (husband). She also instituted a case under Section 125 of the Code of Criminal Procedure, 1973, for maintenance in a court at Roorkee. Lastly, it is pleaded that since the petitioner has already divorced his wife by pronouncing ‘talak’ thrice, the 3 declaration was sought that it be declared that the husband (appellant) has divorced his wife (respondent). 4) The respondent contested the suit before the trial court and pleaded that her husband and in-laws treated her with cruelty. She has further pleaded that she was forced to leave her husband’s house. However, she has admitted that she was married to the petitioner, and now living in her parental house. She has also admitted that she has got registered a criminal case against her husband, and also a case for maintenance. But, she has denied that her husband has pronounced ‘talak’ thrice on 19.07.2004, and as such, she has pleaded that the suit filed by her husband is liable to be dismissed. 5) A ‘replica’ appears to have been filed on behalf of the petitioner stating that he again reiterates ‘talak’ given to his wife Gulshan Ara by stating ‘I divorce my wife Smt. Gulshan Ara’, thrice. 6) The trial court, on the basis of the pleadings of the parties, framed following eleven issues: i) Whether, the respondent Gulshan Ara was seen by her husband Mohd. Usman in suspicious circumstances with her boyfriends and had she refused to stop her activities? If so, its effect? 4 ii) Whether, the respondent’s conduct indicating illicit relations with her boyfriends, has hurt the feelings of the petitioner / appellant and his family members? If so, its effect? iii) Whether, the respondent is of bad character? If so, its effect? iv) Whether, the respondent herself demanded that her husband should give her talak after she felt that it was not possible for her to live in rural background, with him? If so, its effect? v) Whether, the petitioner / appellant pronounced triple talak at ‘Majma Aam’? If so, its effect? vi) Whether, the respondent under undue influence of her mother refused to acknowledge the ‘talak’ given against her? vii) Whether, the respondent is a divorced wife of the petitioner? If so, its effect? viii) Whether, suit is not maintainable before the family court in view of Section 1, 2 and 3 of the Family Courts Act? ix) Whether, the petitioner forced his wife (respondent) to leave his house and asked her to come with dowry amounting to Rs. 50,000/-? 5 x) Whether, the ‘talak’ pronounced allegedly in absence of Gulshan Ara (respondent) and witnesses, is valid? xi) Whether, a Muslim can seek decree of talak and maintain the suit? 7) After recording the evidence and hearing the parties, the trial court decided all the issued in favour of the respondent, and dismissed the suit. Aggrieved by said judgment and order dated 31.01.2009, passed by the Additional Judge Family Court, Roorkee, this appeal is preferred by the husband. 8) Having considered submissions of learned counsel for the parties and after going through the lower court record, we find that in the present case issues No. 1, 2, 3, 4 and 9 were irrelevant for the purposes of this case, as under Muslim Law the husband has a right to give ‘talak’ to his wife, whether there exists any ground for doing so, or not? What is required under the Muslim Law is that the ‘talak’ must be given in accordance with the Muslim Personal Law. 9) P.W. 1 Mohd. Usman, who has filed his affidavit and has been cross-examined before the trial court, has stated on oath that he pronounced ‘I give talak to my wife Gulshan Ara’ thrice on 19.07.2004, at 03:15 P.M., at Majma Aam, in civil court premises. This fact has been corroborated by P.W. 2 Mohd. Sabir who states 6 that he was present at the time when the ‘talak’ was pronounced by the petitioner. The intimation of said ‘talak’ not only appears to have been given through the notice to the respondent, but also it got communicated after copy of the plaint was received by her. Even in the ‘replica’, the petitioner has reiterated the pronouncement of ‘talak’ thrice against his wife respondent Gulshan Ara. 10) In our opinion, the trial court has committed grave error of law in entering into the controversy, whether, the character of the wife was good or not, and whether there was justification to divorce her, on not? The trial court should have examined the evidence on record under the principles of the Muslim Law to come to the conclusion whether, the respondent stands divorced by her husband (appellant), or not? In our opinion, after we have reassessed the evidence on record, we find that the husband has sufficiently proved it on the record that he pronounced thrice that he gives ‘talak’ to his wife Gulshan Ara, making the intention clear to this effect. He has not concealed the pronouncement of ‘talak’ and communicated the same to his wife. Not only this, he has reiterated the same before the court. The pronouncement is not in intoxicated condition. In the circumstances, it cannot be said that the marriage between the parties existed after the husband (appellant) Mohd. Usman gave ‘talak’ to his wife on 7 19.07.2004. That being so, the impugned judgment and decree, passed by the trial court, is liable to be set aside. 11) Accordingly, the appeal is allowed. The impugned judgment and order dated 31.01.2009, passed by the Additional Judge, Family Court, Roorkee, in Suit No. 118 of 2005, is set aside. The appeal is allowed. The suit is decreed and the relief of declaration sought by the petitioner / appellant the he has given ‘talak’ to his wife Gulshan Ara, on 19.07.2004, stands granted. However, no order as to costs. (Alok Singh, J.) (Prafulla C. Pant, J.) Dt. October 22, 2009. H. Negi