Husband Can’t Avoid Maintenance By Merely Pronouncing Talaq Thrice: J&K&L HC

While ruling on a very pertinent legal point pertaining to the liability of husband to provide maintenance to wife, the Jammu and Kashmir and Ladakh High Court at Srinagar in a learned, laudable, landmark, logical and latest judgment titled Fayaz Ahmad Wani vs Mst Hameeda in CRMC No.491/2018 that was pronounced just recently on 04.07.2024 has minced just no words absolutely to state unequivocally that the mere pronouncement of Talaak or Talaq (a form of divorce) three times by a husband is not enough to end a Muslim marriage or to escape obligations such as the duty to maintain one’s wife.

We need to note that a Single Judge Bench comprising of Hon’ble Mr Justice Vinod Chatterji Koul who authored this notable judgment clearly held that for a Talaak pronouncement to be valid, there are several accompanying acts to be carried out, including the need to pronounce Talaaq at a specific interval, the presence of witnesses and reconciliation efforts. All these acts are mandatory and have to be enforced strictly.

While it is definitely true that in February 2018, the Trial Court ruled explicitly in favour of the husband by finding that the parties were no longer married to each other and so maintenance was ruled out. But we must note that an Additional Sessions Revision Court set aside this order and so very commendably ordered the man to pay a fixed monthly maintenance of Rs 3000 to his wife. This was then challenged by the husband (petitioner) before the Srinagar High Court which stoutly upheld the Revision Court’s judgment and also dismissed the appeal. Absolutely right!

At the very outset, this noteworthy judgment authored by a Single Judge Bench comprising of Hon’ble Mr Justice Vinod Chatterji Koul sets the ball in motion by first and foremost putting forth succinctly in para 1 stating precisely that, “Setting aside of the Order dated 24^th October, 2018, passed by the court of Additional Sessions Judge, Pulwama (for short “Revisional Court”) in a Revision Petition titled as Mst. is sought for by petitioner on the grounds mentioned in instant petition.”  

to recapitulate, the Bench recalls in para 3 that, “Respondent (Mst. Hameeda) filed an application under Section 488 of the Code of Criminal Procedure (J&K) for maintenance way back in the year 2009, before the Court of Judicial Magistrate 1^st Class (Munsiff) Pulwama (for short “Trial Court”). The said application was decided vide ex parte judgement dated 14^th December, 2009.

Revision against ex parte judgement was preferred, which was, however, dismissed on 9^th August 2012. A petition under Section 561-A, Cr.P.C., bearing 561-A no. 185/2012 was preferred before this Court, in which an order dated 3^rd July 2013 was passed directing the Trial Court to decide the application under Section 488 Cr.P.C. on merits after providing opportunity of hearing as well as recording evidence of either side.”

Truth be told, the Bench then discloses aptly in para 4 that, “The Trial Court vide order/judgement dated 5^th February 2018 dismissed respondent’s application under Section 488 Cr.P.C. observing that relationship between parties did not exist as spouse.”   

As it turned out, the Bench enunciates in para 5 that, “Aggrieved of Trial Court order dated 5^th February, 2018, respondent filed a Revision. The Revisional Court vide judgement dated 24^th October 2018 set aside Trial Court order dated 5^th February 2018, directing petitioner to pay Rs. 3000/- per month to respondent as maintenance under Section 488 Cr.P.C. from the date of application, which is 25^th August 2009, except the amount already paid as interim maintenance. Petitioner is aggrieved of this judgment. Hence this petition.”    

Do note, the Bench notes in para 6 that, “Learned counsel for petitioner would contend that the Revisional Court has not considered and appreciated facts and circumstances of the case in its right perspective. The Revisional Court has not taken note of the fact that the Trial Court has passed order 5^th February 2018 after full dress trial and discussion of case projected by the parties and evidence adduced by them and after it found that respondent had already been divorced which has been proved by petitioner beyond any shadow of doubt inasmuch as intention of petitioner to divorce is very clear.

It is also stated by him that reconciliation efforts and reasonable cause for divorce has been proved and what is held by the Supreme Court in the case of Shayara Bano v. Union of India, AIR 2017 SC 4609, is about instant divorce but the same is not the position in the present case as petitioner had not given triple talaq.”   

Be it noted, the Bench further notes in para 7 that, “Petitioner has placed on record copy of Talaknama as Annexure A. Penultimate paragraph thereof reveals that petitioner in order to put an end to the wedlock has made three pronouncements of Talak, thereby declaring that he has divorced her and relieved her out of the wedlock. According to petitioner, he has conveyed Talaknama to respondent. It may be made clear here that such a practice in law is deprecated.”   

Briefly stated, the Bench very rightly states in para 8 that, “The issue that arises for consideration is whether the proceedings under Section 488 Cr.P.C. for maintenance before the Trial Court can be quashed because petitioner pleads that he has divorced his wife. Such a plea is not acceptable. In Mohammad Naseem Bhat v. Bilquees Akhter and another, (2012) 4 JKJ 318, a lucid judgment has been given by a Bench of this Court.”

Most forthrightly and as a corollary, the Bench mandates in para 9 postulating that, “As is gatherable from above, for making divorce (Talaak) valid, it is not enough that it is pronounced in the 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.

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 Talaaq 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 on his wife; that Talaq 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 divorce during said tuhr.

It is only after the husband pleads and proves all the above 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 Court in all such cases would give a hard look to the case projected by the husband and insist on strict proof.”     

Most significantly and most remarkably, it is worth noting that the Bench then propounds in para 10 what constitutes the cornerstone of this notable judgment holding that, “In the case in hand, petitioner has placed on record copy of Talaqnama, 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, namely, Rather, which would show that they had gone to the house of Respondent intimating here that appellant wanted to divorce her but she did not accept the said proposal and as such, conversation was not successful.

It has also been found that efforts for reconciliation were not coming to fore inasmuch as the decision of divorcing respondent was conveyed to respondent and there had been no sufficient evidence to establish reconciliation from the side of petitioner. The Revisional Court has also rightly considered the rival contentions of the parties and come up with impugned judgement, setting aside the Trial Court order dated 5^th February 2018 and directing petitioner to pay an amount of Rs. 3000/- per month to respondent as maintenance.”

Finally, we see that the Bench then aptly closes the curtains of this most remarkable judgment by holding and directing in para 11 that, “The net result is that impugned order/judgement dated 24^th October 2018 does not call for any interference and as a consequence of which, instant petition is dismissed.”  

In a nutshell, we thus see that the Single Judge Bench comprising of Hon’ble Mr Justice Vinod Chatterji Koul of Jammu and Kashmir and Ladakh High Court at Srinagar who authored this notable judgment has made it abundantly clear that the husband cannot avoid maintenance by pronouncing talaq thrice. In hindsight, even the Supreme Court in a most learned judgment titled Mohd Abdul Samad vs The State of Telangana & Anr in Criminal Appeal No. 2842 of 2024 arising out of Special Leave Petition (Crl.) No. 1614 of 2024 and cited in Neutral Citation No.: 2024 INSC 506 that was pronounced as recently as on July 10, 2024 had minced just no words to hold unambiguously that a Muslim woman who has been illegally divorced by the pronouncement of triple talaq is definitely entitled to seek maintenance from her husband as per Section 125 of the Code of Criminal Procedure.

It must be taken into account that the Apex Court also clarified that this right is in addition to remedy that has been provided under the Muslim Women (Protection of Rights on Marriage) Act 2019, which specifies clearly that a woman who has been subjected to triple talaq will be entitled to claim subsistence allowance from her husband. So we thus see that the petition of the petitioner-husband is thus very rightly dismissed by the Srinagar High Court. No denying! 

Written by:

Sanjeev Sirohi, Advocate, s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave, Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.

*Published as received.