1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO.179 OF 2009 Mrs Sabah Adnan Sami Khan, aged 34 yrs, Occupation- Business, residing at No.1301, A & C and Flat No.1401, A,B and C Oberoi Sky Garden, 3rd X Lane, Lokhandwala, Andheri, Mumbai-400053. .. Appellant Vs Adnan Sami Khan, aged 39 years, Occupation- business, residing at No.1301, A & C and Flat No.1401, A, B and C Oberoi Sky Garden, 3rd X Lane, Lokhandwala , Andheri, Mumbai-400053. .. Respondent Mr Mahesh Jethmalani, Senior Counsel, with Mrs Mrunalini Deshmukh, Mrs Edith Dey, for the Appellant. Mr Vaibhav Krishna a/w Mrs Mridula Kadam, Mr Aashish Sah, Tejas Sha, Vishal Nahar, Laxmi Mardekan, Anvisubade i/b M/s Juris Consillis, for the respondent. CORAM : D.B.BHOSALE AND R.Y.GANOO,JJ. DATE : 23/03/2010. JUDGMENT : (Per D.B.BHOSALE,J.) 1. In this appeal under section 19 of the Family Courts Act, T 2 1984, the following questions are raised for our consideration: (i) Whether a divorce between the appellant and the respondent under the Divorce Agreement dated 18th April, 2004 was a Talak in the `Ahsan mode’, as the appellant-wife claims, or was it a divorce by `Khula’, as claimed by the respondent-husband? (ii)Whether, the appellant was obliged to undergo Halala prior to her remarriage with the respondent on 5th April, 2007? (iii)If the divorce under the Divorce Agreement dated 18th April, 2004 is held to be a Talak by Khula, whether the appellant-wife was obliged to undergo Halala before the remarriage on 5.4.2007 ? (iv)Whether the petition filed by the appellant-wife for divorce and her Miscellaneous Application under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, “the Domestic Violence Act”) were tenable before the Family Court? 2. This appeal was admitted on 14.12.2009 and, on 1.2.2010, liberty was granted to the appellant to submit private paper book within a period of six weeks and to apply for fixed date of 3 hearing of the appeal. The appellant, along with the appeal, had filed a Civil Application, being Civil Application No.53 of 2010, for interim reliefs prayed for therein. This civil application was placed on board on 10.3.2010 for hearing. On this date, we heard learned counsel for the parties for some time and, in the course of hearing, they jointly requested to take up the appeal itself for final disposal. 3. Learned counsel for the parties addressed the court only on the aforesaid questions, and all the questions being the questions of law they fairly stated that evidence for addressing the questions is not necessary and they would address the court on the basis of admitted facts and the material placed before us and that they would not seek remand of the matter for allowing the parties to lead evidence. In view thereof, we have heard learned counsel for the parties at considerable length. 4. The facts, which are relevant to dispose of this appeal, are fairly simple. The appellant and the respondent are Mahomedans and they belong to the Sunni Sect. The appellant is a citizen of UAE and the respondent is a citizen of Pakistan. They got married on 15.9.2001 according to Islamic rites. At the time of their marriage, it was the appellant’s third marriage and 4 the respondent’s second. Their marriage was dissolved under the Divorce Agreement dated 18.4.2004 singed by them and the witnesses. The parties remarried on 5.4.2007 at Jama Masjid, Bandra, Mumbai, (for short, “the second marriage”). The second marriage was registered with the Sub Registrar of Marriages, Bandra, Mumbai on 2.2.2008. Sometime in June- July,2008, disputes and differences arose between the appellant and the respondent, which resulted in execution of the Reconciliation Agreement dated 22.1.2009. Thereafter, the appellant on account of matrimonial discord, filed a complaint in the Metropolitan Magistrate Court at Andheri, (Railway Court), in February, 2009 under the provisions of the Domestic Violence Act. On 24.2.2009, the respondent filed a reply to her application under the Domestic Violence Act. On 16.3.2009, the appellant filed a petition, being Petition No. A-673 of 2009, under section 2(viii) of the Dissolution of Muslim Marriages Act of 1939, seeking dissolution of the second marriage. Along with the said petition, the appellant also filed Misc. Application seeking reliefs under the Domestic Violence Act. The respondent filed reply to the said application under the Domestic Violence Act so also her Written Statement in which, for the first time, he brought out an issue that the appellant did not perform Halala formalities before the second marriage and hence it is nullity. It 5 was also contended that the petition for divorce and the application for interim reliefs are not tenable before the Family Court. 5. The Family Court, after having considered the diverse contentions urged by learned counsel for both sides, held that the dissolution of marriage in the present case was by mutual consent and it was a divorce by “Mubara’at” and not by Talak “Ahsan”. It was further observed that Talak Ahsan is oral divorce and since in the present case the divorce was executed under the Agreement/Deed of Divorce dated 18.4.2004, the contention of the appellant that it was a Talak Ahsan, must be rejected. After making these observations in respect of the mode of Talak and in view of the admitted position that the appellant had not observed the Halala, it was further held that the second marriage of the parties is not legal and valid and consequently the petition filed by the wife for dissolution of her marriage under section 7 of the Family Courts Act, being Petition No.A-673 of 2009 is liable to be dismissed as not tenable. Thus, the impugned order in the present appeal disposes off the matrimonial petition instituted by the appellant by rendering it unsustainable on the sole ground that the marriage of the parties of which she seeks dissolution is void inasmuch as the 6 appellant had not undergone the mandatory requirement of Halala, after the dissolution of her first marriage with the respondent on 18.4.2004, as recorded in the Deed of Divorce executed on the very same day. 6. We have heard learned counsel for the parties at considerable length and, with their assistance, perused the principles of Mahomedan Law from the books of different authors, to which our attention was invited by learned counsel for the parties, so also the Judgments relied upon by the learned counsel in support of their contentions. Mr Jethmalani, learned senior counsel for the appellant, at the outset, submitted that having regard to the Divorce Agreement dated 18.4.2004 and subsequent conduct of the parties, it is clear that the divorce agreement between the appellant and the respondent was a Talak in the Ahsan mode. He submitted that all forms of Talak, including the Talak in the Ahsan mode, are revocable up to a certain period and thereafter it becomes irrevocable. He then submitted that when Talak becomes irrevocable, it is not that a fresh marriage can be contracted between the parties only on the wife performing Halala. According to Mr Jethmalani, performance of Halala is 7 necessary only in case of triple Talak. In other words, he submitted that it is not correct to assume that the concept of irrevocability entails that a wife must perform Halala on any form of Talak becoming irrevocable. After inviting our attention to Verses (Sura) in the Holy Quran, he submitted that Halala is mandatory on the part of wife only in case of a talak in Talak Hasan mode and Talk-i-badai by three pronouncements and expiry of Iddat. Khula and Mubaraat, he submitted, though operate as Talak-i-bain, that is, irrevocable divorce, does not mean that for re-marriage between them, the wife has to undergo “Halala”. It only means that re-marriage between them is valid only under a fresh Nikah and fresh Mehr. In support of this contention, he also placed reliance upon Section 42 (Page 141 of Faiz B.Tyabji’s Mahomedan Law). He also relied upon certain other sections of Faiz B Tyabji’s Mahomedan Law including section 171 therein. Lastly, Mr. Jethmalani submitted that even if Talak Ahasan became irrevocable, parties to a divorce can re-marry without the wife performing Halala. On the other hand, Mr Krishna, learned counsel for the respondent, after inviting our attention to various provisions/sections in the Mulla's Principles of Mahomedan Law and to the Divorce Agreement and more particularly the 8 preamble and clause (3) thereof, submitted that the divorce under the divorce agreement between the appellant and the respondent was by Khula and it became irrevocable from the moment the respondent repudiated the appellant as his wife. He submitted that Khula operates as a single irrevocable divorce, that is, talak-i-bain, the moment the wife’s offer to compensate the husband for her release from marital rights is accepted, and when it becomes irrevocable, remarriage between the parties is unlawful unless Halala is observed by the wife. In support, he invited our attention to the Divorce Agreement dated 18.4.2004 and submitted that the divorce was obtained at the instance of the appellant and effected by acceptance of an offer from the appellant to compensate the respondent by giving up her right over mehr and, therefore, it was a divorce by Khula. He submitted that all the conditions of Khula stand satisfied, if a close look at the divorce agreement dated 18.4.2004 is taken. In other words, he submitted that the Divorce Agreement dated 18.4.2004 has been acted upon by both the parties for three years and had become final and irrevocable and, therefore, compliance of Halala formality was mandatory. The purpose of challenge raised by the appellant in the proceeding is not to continue marriage but to claim the property of the respondent. The divorce agreement is at the initiative of the wife and is full 9 and final and, therefore, Halala, in accordance with Shariat law applicable.He submitted the marriage is permitted provided it is in accordance with Shariat law, which provides compliance of Halala formalities. Mr Krishna further submitted that since Khula/Mubara’at are Talak-i-bain, the rigors of irrevocable divorce by triple pronouncements are applicable and Halala is mandatory. In support of this contention, he invited our attention to Sections 311, 312, 313, 319, 320 and 336 in Mulla’s Principles of Mohammaden Law and submitted that Khula divorce is effected by offer from the wife to compensate the husband and once the offer is accepted it operates as single irrevocable divorce (Talak- i-bain) (sections 311(3), 312) and its operation is not postponed until execution of the Deed of Khula. He submitted that section 311(3) is completely applicable to Talak-i-bain including section 311(3)(i) and if any formality is applicable to section 311(3)(i), then it has to apply to section 311(3). He further submitted that section 312(3) and Talak-i-badai mode becomes irrevocable immediately it is pronounced irrespective of iddat as Talak becomes irrevocable at once it is called Talak-i-bain. Mr Krishna submitted that where talak has become irrevocable through any mode between the parties, re-marriage between the parties is 10 unlawful unless an intermediary marriage with another person takes place with proved consummation. Lastly, he submitted that the co-habitation of the appellant and the respondent as husband and wife, after the so-called second marriage, would not confer legitimacy to void marriage and would not create any rights in favour of the appellant. 7. The Holy Quran is the primary source of Mohammedan Law and represents the God’s Will communicated to the Prophet through the Angel Gabriel. (See: Masroor Ahmed Vs State (NCT of Delhi) and Anr, MANU/DE/9441/2007 and the Full Bench Judgment of this Court in Dagdu Pathan Vs Rahimbi Dagdu Pathan, 2003 (1) HLR 689). Section 34, Chapter IV in Mulla’s Principles of Mahomedan Law by Hidayatullah, Nineteenth Edition, (for short, “Mulla’s Mahomedan Law”) deals with Interpretation of the Quran. It states that the Courts, in administering Mahomedan law, should not, as a rule, attempt to put their own construction on the Quran in opposition to the express ruling of Mahomedan commentators of great antiquity and high authority. 8. The Holy Quran recites on the issue of Halala, with which we are concerned in the present appeal, as under : 11 Sura 230 (i e. Verse 230). “And if he hath divorced her (the third time), then she is not lawful unto him thereafter until she hath wedded another husband. Then if he (the other husband) divorces her, it is no sin for both of them that they come together again if they consider that they are able to observe the limits of Allah. These are the limits of Allah. He manifesteth them for people who have knowledge”. What it means is that if the Talak was “the third time”, such a Talak was pronounced, then they cannot re-marry unless the wife were to have, in the intervening period, married someone else and her marriage had been dissolved either through divorce or death of that person and the iddat of divorce or death has expired. This is considered as “Halala”. 9. Marriage, according to Muslim Law, is a civil contract, the object of which is to legalize sexual intercourse and the procreation of children. (See: Smt Joygun Nessa Bibi Vs Muhammad Ali Biswas, AIR 1938 Calcutta 71). Divorce is another name of dissolution of marriage under three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated. The existence of conjugal relations in the case of Mahomedans has to be determined by reference to the provisions of the Mahomedan 12 Law and not by considerations of equity and good conscience as understood in any other system of law (See: Zohara Khatoon Vs Mohd Ibrahim, AIR 1981 SC 1243). 10. In Mullas Mahomedan Law, section 311 provides, three modes of Talak, with which we are concerned in the present appeal, namely Talak Ahsan; Talak Hasan; and Talak-i-badai. Talak “Ahsan” consists of a single pronouncement of divorce (Talak) made during a tuhr, period between two menstrual course, followed by abstinence from sexual intercourse for the period of Iddat. (See. Section 311(1)). Talak “Hasan” consists of three pronouncements made during successive tuhrs without sexual intercourse during any of the three tuhrs. The Talak becomes irrevocable on pronouncement of divorce during all the three tuhrs. In other words, before the third pronouncement, Talak Hasan is revocable by conduct of the parties. However, once the third pronouncement of divorce is made without sexual intercourse during all the three tuhrs, the divorce becomes irrevocable and in that case after Iddat, the former husband and wife cannot enter into a Nikah unless the wife undergoes the process of Halala. (See. S.311(2). The third mode of Talak, namely, “Talak-i-badai” consists of 13 two modes. Firstly, it consists of three pronouncements made during a single tuhr. For instance, three pronouncements in one go (Triple Talak) either in one sentence, e.g, “I divorce you three times or in separate sentences, e.g., Talak, Talak, Talak. (See : S. 311(3)(i)). The second mode of Talak-i-badai consists of a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage. For instance, “I divorce you irrevocably”. (See: S.311(3)(ii)). 11. A Talak in the “Ahsan” mode becomes irrevocable and complete on the expiration of the period of iddat. (See: S.312(1) in Mulla’s Mahomedan Law) Similarly, a Talak in the “Hasan” mode becomes irrevocable and complete on the third pronouncement, irrespective of the iddat, (See: S.312(2)) and a Talak in the “badai” mode becomes irrevocable immediately it is pronounced, irrespective of the iddat. As the Talak becomes irrevocable at once, it is called talak-i-bain, that is, irrevocable Talak (See: S.312(3)). Thus, in case of a Talak in the Ahsan mode and in the “Hasan” mode do not become absolute until a certain period has elapsed. In case of these two modes of Talak the husband has an opportunity of reconsidering his decision and he has the option to revoke it before the certain period is elapsed. The essential feature of a talak-ul-bidaat or talak-i- 14 badai is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talak-ul- bidaat, and the intention to render a talak-irrevocable may be expressed even by a single declaration. Thus if a man says : “I have divorced you by a talaka-ul-bain (irrevocable divorce)”, the talak is talak-ul-bidaat or talak-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression “bain” (irrevocable) manifests of itself the intention to effect an irrevocable divorce. 12. “Iddat” has been described in Mulla’s Mahomedan Law, as the period during which it is incumbent upon a woman, whose marriage has been dissolved by divorce or death to remain in seclusion, and to abstain from marrying another husband. The abstinence is imposed to ascertain whether she is pregnant by the husband, so as to avoid confusion of the parentage. When the marriage is dissolved by divorce, the duration of the iddat, if woman is subject to menstruation, is three course; if she is not so subject, it is three Lunar months. If the woman is pregnant at the time, the period terminates upon delivery. When the marriage is dissolved by death, the 15 duration of the iddat is four months and ten days. If the woman is pregnant at the time, the iddat lasts for four months and ten days or until delivery, whichever period is longer (See: Section 257, Chapter XIV in Mulla’s Mahomedan Law). The period of iddat prescribed by Muslim Law is 90 days. 13. As the Talak becomes irrevocable at once, it is called Talak-i-bain, that is, irrevocable Talak. (See: S.312, Mulla’s Mahomedan Law). Thus it is clear that a Talak can be revoked by conduct before it becomes irrevocable. The Talak is, however, complete on the expiration of the period of iddat. Until the talak becomes irrevocable, the husband has the option to revoke it which may be done either expressly, or implied as by resuming sexual intercourse. Every mode of Talak, when is complete, it becomes irrevocable. The question that we have to consider is whether in case of every irrevocable talak, irrespective of its mode, for remarriage with the same husband the wife requires to observe the “Halala”. 14. The Delhi High Court in Masroor Ahmed’s case, after considering different forms of Talak, so also the provisions of Sections 311 and 312 in Mulla’s Mohamedan Law, in paragraphs 26 and 27 of the judgment held thus: 16 “26. ... .... ... There are views even amongst the sunni schools that the triple talaq pronounced in one go would not be regarded as three talaqs but only as one. Judicial notice can be taken of the fact that the harsh abruptness of triple talaq has brought about extreme misery to the divorced women and even to the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation. It is an innovation which may have served a purpose at a particular point of time in history but, if it is rooted out such a move would not be contrary to any basic tenet of Islam or the Quran or any ruling of the Prophet Muhammad. 27. In this background, I would hold that a triple talaq (talaq-e-bidaat), even for sunni muslims be regarded as one revocable talaq. This would enable the husband to have time to think and to have ample opportunity to revoke the same during the iddat period. All this while, family members of the spouses could make sincere efforts at bringing about a reconciliation. Moreover, even if the iddat period expires and the talaq can no longer be revoked as a consequence of it, the estranged couple still has an opportunity to re-enter matrimony by contracting a fresh nikah on fresh terms of mahr etc.” 15. The Full Bench in Dagdu Versus Rahimbi Dagdu Pathan (supra) had an occasion to consider the provisions in Chapter II and III of Part-I of a Compendium of Islamic Laws published by the All India Muslim Personal Law Board, dealing with the conditions of effectiveness of Talak so also Chapter XVI in Mulla’s Mahomedan Law dealing with the subject Divorce. The Full Bench, after considering section 310, Chapter XVI in Mulla’s Mahomedan Law in respect of Talak in writing, made the 17 following observations: “Talak in writing is a written mode of Talak reduced in a Talaknama which may only be the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. The deed may be effected in the presence of a Qazi or the wife’s father or of two witnesses. In the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce (Talak-i-bain) and takes effect immediately on its execution. Talak by a delegation is permissible and it is called as a Talak by Tafweez. Written Talaq may have several forms and some of them are (a) Kitabat-e-mustabinath (legible writing). It is of two kinds – Mustabinah Marsumah (formal legible writing and Mustabinah Ghair Marsumah (informal legible writing) Kitabat-e- mustabinath Marsumah which is a formal divorce- deed or letter which is written with a title and the addressee’s name.” 16. A Talak may be effected orally (by spoken words) or by a written document called a Talaknama. A Talaknama may only be the record of the fact of an oral Talak; or it may be the deed by which the divorce is effected. Section 313 in Mulla’s Mahomedan Law provides that in the absence of words showing a different intention, a divorce in writing operates as an irrevocable divorce that is, talak-i-bain, and takes effect immediately on its execution. Deed of Divorce in writing constitutes a valid divorce (Rasul Bakhst Vs Bholon and others, AIR 1932 (Lah.498). Under Hanafi Law, divorce of wife by a written document is irrevocable (Hayat Khatun Vs Abdullah 18 Khan, AIR 1937 Lah.270). As most Sunni’s are Hanafis the presumption is that a Sunni is governed by Hanafi Law. It is thus clear Talaknama may be only the record of the fact of an oral Talak or it may be the deed by which the divorce is effected. (See: S.310(2)). 17. At this stage, it is also necessary to refer to the rules of revocable and irrevocable Talak and they are in sections 17,18,19 and 20 in Chapter III of Part-I of a Compendium of Islamic Laws, published by the All India Muslim Personal Law Board, dealing with the conditions of effectiveness of Talak, (See: Dagdu Vs Rahimbi Dagdu Pathan) which read thus : “Section 17 : In a revocable Talaq the husband can take back the wife during “Iddat” without her consent and without a remarriage; but after the expiry of “Iddat” she will become irrevocable divorced and can be lawfully taken back only by a fresh marriage. Section 18 : Revocable may be either by conduct – e.g., if the husband had had coitus, kissing and caresses with the wife – or by spoken words, e.g. If the husband says that he has taken back his wife and informs her of the same. Revocation by words is preferable in the presence of witnesses (two men or a man and two women). Section 19: 19 An irrevocable Talaq, whether express or implied, (words of complication are explained hereinafter) is of two kinds; bainunat-e-khafifah (minor separation) and bainunat-e-ghalizah (major separation). Less than three Talaqs effect bainunat-e-khafifah, otherwise there will be bainunat-e-ghalizah. Section 20 : In bainunat-e-khafifah though the wife goes out of the marital bond but the parties may by mutual consent remarry during or after the “Iddat”. In bainunat-e-ghalizah remarriage is possible only where after the expiry of “Iddat” the woman has married another man who has either died or divorced her and the “Iddat” of death or divorce