Dispelling common misconception that a Muslim man can divorce his wife by simply saying talaq three times, the Bombay High Court has held that mere pronouncment of intention to divorce is not enough.
Before talaq is pronounced -- orally or in writing -- there has to be an effort for reconcilition between the couple with the help of arbiters, Justice B H Marlapalle stated, holding the divorce in question as null and void.
The High Court was recently deciding a review petition filed by one Dilshad Begum, whose husband Ahmedkhan Pathan had driven her out of the house in June 1989.
A Judicial Magistrate's court in Baramati in Western Maharashtra granted her monthly maintenance of Rs 400 under the Criminal Procedure Code.
However, Ahmedkhan pronounced triple talaq orally at a local mosque on May 20, 1994 in the presence of two witnesses. (Dilshad was not present at the time.) He also sent a legal notice to Dilshad, alongwith a one-time maintenance, informing her of divorce.
After that he challenged the order of maintenance in the Sessions Court on the ground that under Muslim law, a divorced woman can not get maintenance under CrPC.
The Sessions Court upheld this argument and quashed order of maintenance.
Dilshad filed an appeal in the High Court, which accepted the fact that her husband had indeed pronounced talaq in 1994.
However, Justice Marlapalle then proceeded to examine whether the talaq in question was valid as per the Muslim law.
Relying upon an earlier judgement of the full bench of the Bombay High Court, Justice Marlapalle observed that before divorce is finalised, there has to be an attempt at reconciliation.
"Conveying reasons for divorce, appoinment of arbiters, resorting to conciliation proceedings to bring about a reconciliation and failure of such proceedings should precede the pronouncement of talaq," the judge noted.
None of these preconditions were met in the present case, court said, holding thereby that since divorce was not legal, Dilshad was entitled to get maintenance under CrPC.