For making Talaak valid, mere presence of 2 witnesses not enough: HC

Srinagar, July 13: The High Court of J&K and Ladakh has observed that it is not enough that Talaak (divorce) is pronounced by a Muslim man in the presence of two witnesses but they must be “endued with justice.

The issue before the court was whether the proceedings under Section 488 Cr PC for maintenance could be quashed because the petitioner, an aggrieved man from Budgam pleaded that he had divorced his wife.

“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,” a bench of Justice Vinod Chatterji Koul said, while dismissing a plea of the man.

“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.”

The court observed that “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 the 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.”

The bench was hearing a case where an estranged wife had initially, in 2009, secured an ex-parte maintenance order that was challenged by the husband. The matter coursed to the High Court and was remitted back to a trial court in 2013.

In February 2018, the trial court decided in favour of the husband with the finding that the parties were no longer married, an Additional Sessions Court as a Revisional court set aside the order by directing the man to pay a monthly maintenance of Rs 3,000 to the wife.

It is this order that was challenged by the man before the High Court in 2018.

The High Court said: “In the case in hand, petitioner 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 the respondent (woman) intimating to her that the appellant wanted to divorce her but she did not accept the proposal and as such, the conversation was not successful”.

The court observed that it had also been found that efforts for reconciliation were not coming to the fore inasmuch as the decision of divorcing a woman was conveyed to her and there had been no sufficient evidence to establish reconciliation from the side of the petitioner.

“The Revisional Court 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 the woman as maintenance,” the court said.