Kerala High Court: The Division Bench of A.K. Jayasankaran Nambiar and Mohammed Nias C.P., JJ., held that mere use of word ‘irrevocably’ does not render pronouncement of talaq illegal if intention of the husband shows otherwise.
Factual Fulcrum of the Case
In the instant case, the appellant-A.Sajani had filed a matrimonial suit against her husband-Dr. B. Kalam Pasha, a serving judicial officer in the State of Kerala. The grievance of the appellant was that the respondent had deserted her, had sent her a Talaqnama and had contracted another marriage with a younger girl. Pleading that the talaqnama was not a valid one in law, the appellant contented there was only a single pronouncement of talaq and it was made irrevocable thereby rendering it illegal and void going by the law laid down in Shayara Bano v. Union of India, (2017) 9 SCC 1, and that no valid grounds had been established by the respondent that would have enabled him to divorce her.
The respondent-husband argued that he had pronounced ‘Talaq Ahsan’ and the use of the word ‘irrevocably’ was only to alert his wife of the seriousness of the decision and to indicate that it was not to be taken lightly. The respondent contended that since there had been only a single pronouncement, notwithstanding the express use of the word ‘irrevocably’ in the talaqnama it had to be seen as a Talaq Ahsan.
Findings of the Family Court
The Family Court denied the prayer for restitution of conjugal rights holding that the talaq was a talaq ahsan and valid.
Observation and Analysis
In Shayara Bano v. Union of India – (2017) 9 SCC 1, the practice of “Talaq-e-Biddat –Triple Talaq was set aside’; the nature and characteristic features of a triple talaq or talaq-e-biddat that was found objectionable by the Court and which led the Court to hold the practice as bad in law was its instant irrevocability that rendered the practice ‘manifestly arbitrary’ in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.
Similarly, in Shamim Ara v. State of UP – (2002) 7 SCC 518, the Supreme Court spelt out the requirements of a valid talaq as
- that the talaq must be for a reasonable cause; and
- it must be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one chosen by the wife from her family and the other by the husband from his family.
In the same line, the Kerala High Court had held in Kunhimohammed v. Ayishakutty, 2010 SCC OnLine Ker 567, that, if an attempt for reconciliation by two arbiters has taken place, and they have not succeeded in bringing about a reconciliation, it can also be held that there is a reasonable cause for pronouncement of talaq, and that the specific reason for divorce need not be established before the court since the same would not be justiciable.
Hence, rejecting the argument that use of the word ‘irrevocably’ in the talaqnama rendered the pronouncement of talaq illegal since it clearly evidenced the intention of the respondent that he was not ready to reconsider his decision during the period of three lunar months that were to follow, the Bench though observed that the choice of words of the respondent who was a serving judicial officer could not be presumed that he had used the word ‘irrevocably’ without understanding its significance, it was held that,
“Notwithstanding the use of the word ‘irrevocably’ in the talaqnama, the respondent must be seen as having pronounced a talaq ahsan, that became irrevocable only on the expiry of the period of three lunar months immediately following the single pronouncement of the talaq…”
Findings and Conclusion
Hence, observing that even after the pronouncement of talaq, there were efforts for reconciliation within a year after the pronouncement of talaq, and the respondent married another woman on 25-02-2018; i.e. almost after an year, the Bench held that the ends of justice would be served by treating the lapse on the part of the respondent as a mere irregularity in the mode of pronouncement of the talaq, that could be regularised by postponing the effective date of dissolution of marriage by the period of three lunar months required in the case of a Talaq Ahsan. [A. Sajani v. B. Kalam Pasha, 2021 SCC OnLine Ker 3574, decided on 24-09-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
For the Appellant: A. Sajani (Party-In-Person) and Adv. M.Vanaja
Amicus Curiae: Sr. Adv. T.Krishnanunni
Caveator: Adv. Babu Karukapadath
For the Respondents: Adv. M.A.Vaheeda Babu, Adv. P.U. Vinod Kumar, Adv. Arya Raghunath, Adv. Vaisakhi V., Adv. T.M. Muhammed Musthaq and Adv. Mohamed Hisham P