Law of Talaq; Mohammad Faroor Vs. Chief of the Army Staff [Armed Forces Tribunal, 25-05-2016]

Muslim Law – Talaq – Declaration of oral triple talaq by ex parte proceedings – Once marriage is based on ‘offer and acceptance’ then unless the declaration of talaq by husband is accepted by the wife, that too in the presence of each other, shall not be deemed to be execution of divorce or talaq. In case the wife disagrees with the declaration of talaq by husband, the only way out is to approach Civil Court for dissolution of marriage or talaq and a declaration accordingly.


ARMED FORCES TRIBUNAL, REGIONAL BENCH, LUCKNOW

ORIGINAL APPLICATION NO 287 of 2012

Wednesday, this the 25th day of May 2016

Hon’ble Mr. Justice D.P. Singh, Member (J)

Hon’ble Air Marshal Anil Chopra, Member (A)

Lance Naik/Tailor Mohammad Faroor @ Farooq Khan (Army No. 3199473W) of 8 JAT, now posted to HQ 22 Infantry Division Camp, C/o 56 APO (located somewhere in Uttar Pradesh) son of Shri Usman Gani, resident of Ward No. 1, Village Mohanpur, Tehsil and District Bareilly (U.P.) …Applicant Ld. Counsel for the applicant: Shri P.N. Chaturvedi Advocate Versus 1. Chief of the Army Staff, Integrated Headquarter of the Ministry of Defence (Army), South Block, New Delhi, 110011 2. General Officer Commanding-in-Chief, Southern Command, Pune, 411001. 3. Commanding Officer of 8 Battalion of the JAT Regiment, C/o 56 APO. 4. Officer-in-Charge, Records, JAT Regiment, Bareilly, 243001. 5. PAO (OR), the JAT Regiment, Bareilly, 243001. 6. Ms. Arsey Jahan, daughter of Shri Abdul Kadir Khan, resident of Quarter N. B-176, IFFCO Township, Awala, District Bareilly, U. P. 243403. 7. Camp Commandant, HQ 22 Infantry Division Camp, C/o 56 APO. 8. Additional Chief Judicial Magistrate 5th, Bareilly. …….Respondents Ld. Counsel for the : Shri M.K. Sherwani, Respondents Shri SN Pandey, Central Govt Counsel assisted by Maj Preeti Tyagi, OIC Legal Cell.

(Per Justice Devi Prasad Singh, J)

1. We have heard Shri P. N. Chaturvedi, Ld. Counsel for the applicant and Shri S.N. Pandey, Ld. Counsel for the respondents assisted by Lt Col Subodh Verma, OIC, Legal Cell and Shri M.K. Sherwani for respondent No 6.

2. This petition under Section 14 of the Armed Forces Tribunal Act, 2007 has been preferred by applicant being aggrieved with payment of maintenance to respondent No. 6 Ms. Arsey Jahan who happens to be wife of the applicant, allegedly divorced under the Muslim Personal Law.

3. The plight of women in this world by different masters of religion broadly expressed in a poem by Saqib Hussain is reproduced as under:

“We chase everything night and day

But from the soul we turn away

Everything we hold high in rank

The soul we throw down and stamp

To serve selfish desires we are quick

The soul we hold back, put in a pit

Strangle, curse, constantly hit

Laugh at, sneer at, snarl and spit

Such oppression!

By ourselves, on ourselves!

Such a shame, disaster, so sad

Because the soul is all we have

It was given to us in a sacred trust

Everything else will turn to dust

The soul is the only thing we take

Grow, purify it, or your own sake.”

4. Hindustan, i.e. Bharat, i.e. India in case considered from the ancient manuscripts, we may find that there has been no gender discrimination between man and woman, boy and girl. Both were equal in status with hand-in-hand, sharing life from beginning to end. Before marriage girls were duly respected and educated with emphasis on knowledge and character by the parents and after marriage husbands took due care with purity of mind-set, coordination, affection and compassion. All decisions with regard to family matters or otherwise were taken with due consultation with each other.

One example may be sufficient to indicate the place of women in ancient world of India. Rig Veda is substantially creation of women, which is oldest manuscript according to UNICEF (1500-2000 BC.). It was Lopmudra, wife of Sage August with the assistance of 64 literary women, who wrote major portion of Rig Veda. Rig Veda contains discussion between husband and wife, i.e. Sage August and Lopmudra, with regard to several aspects of worldly and spiritual affairs.

Later on, by passage of time and on account of persecution, kidnapping, forcible marriage, keeping concubine and forcible conversions to other religions, divided kingdoms, the frightened Indian women started wearing Sari with closed face (Ghoonghat), gone away from education and knowledge because of orthodox preachers and male dominated society. However, things became encouraging for the women with rays of hope and sunshine after the advent of Indian Constitution. Greater India was divided on communal lines on Jinnah’s call consented by Nehru resulting into creation of India and Pakistan.

However, having faith in the Indian Constitution, substantial number of minorities including Muslims decided to live in India to enjoy their life with freedom and constitutionalism propagated by Indian leaders. Ultimate instrument of Justice, Liberty, Equality, and Fraternity is the Constitution of India. It creates bond to unite India in diversity as an instrument to establish rule of law.

5. A question cropped up whether fifty percent of the population or to a lesser percentage (women) who are suffering from some social evil and slavery, losing their liberty and quality of status under the garb of Personal Law, shall not be entitled to Constitutional protection, statutory mandates, Rules and Regulations framed by appropriate authorities or legislature?

6. In the present case, a divorce took place by ex parte action of the applicant-husband through a notice dated 17.08.2011 with the claim that in view of divorce notice, the respondents, i.e. Government of India/Army authorities had no right to grant maintenance to respondent No. 6 as the marriage has been dissolved. Maximum maintenance may be given for three months along with Mehar. It shall be appropriate to deal with different aspects of the social enigma or plight under different heads.

7.

(I) FACTS:

(i) Applicant Lance Naik/Tailor Mohd Farooq alias Farooq Khan, a member of the Indian Army working as tailor, was married to respondent No 6 under Muslim Usage, practice and Personal Law on 24.10.2009. It appears that the matrimonial life was on rocks for one or the other reason. The applicant shifted burden of breakage of matrimonial life on respondent No 6.

(ii) It is stated that on account of bitterness in matrimonial life, an agreement was signed between them (Annexure A-4 to the O. A.) for a peaceful matrimonial life. It is alleged that respondent No 6 left the house unilaterally with ornaments worth rupees four lacs. Applicant filed a case in the family court Bareilly on 26.03.2010. Later on respondent No 6 also filed a criminal case under Section 498-A of the Indian Penal Code on 30.05.2011. In consequence thereto, applicant and his parents were arrested. In Writ Petition No 12659 of 2011, the Allahabad High Court on 11.07.2011 directed to make all efforts for amicable settlement through mediation (Annexure No A-6 to the O. A.) which seems to failed since respondent No 6 declined to enter into compromise. While claiming right to deny with regard to the payment of maintenance, the applicant’s Ld. Counsel submitted and pleaded that respondent No 6 is entitled to maintenance allowance only for three months, i.e. for the period of Iddat. It is stated that Talaq, an Arabic word, means ‘to release’ or ‘repudiation of marriage’ by husband. Under the Muslim Law husband has unrestricted right to divorce his wife without giving a reason. It is submitted that Muslim Law does not require existence of any fault or of a matrimonial offence as an excuse for Talaq. Submission is wherever it is impossible for spouse to live together, they must separate peacefully.

(iii) Relying upon Muslim Personal Law, it is proudly argued and submitted that under Muslim Personal Law, husband has the absolute authority to terminate marriage by pronouncing Talak. It is also submitted that Muslim society is dominated by males. Conjugal happiness primarily depends upon efforts of the husband. Whenever the husband finds that the marriage cannot be continued happily, he has right to dissolve the marriage, but it is not misused. It is admitted that Talaq is permitted only when the wife by her conduct or her words does injury to the husband or happens to be impious.

(iv) Addressing on the right to talaq the applicant submits that every Muslim husbands of sound mind is competent to give talaq to his wife without assigning any reason. On attaining age of puberty, wife may be given talaq and it does not depends on any condition or cause. It is submitted that except under Hanafi Law, the consent of the husband in pronouncing talaq must be a free consent. Under Hanafi Law, a talaq pronounced under compulsion, coercion, undue influence, fraud and voluntary intoxication etc. Is valid and dissolves the marriage. It is also submitted that talaq may be in writing without adhering to any particular form. Presence of wife is not necessary and it may be signed in the presence of Quazi or wife’s father or any other person. Talaq whether oral or in writing may be made without witnesses and is valid under Sunni Law. The applicant is a Sunni Muslim.

(v) It is stated that Dissolution of Muslim Marriages Act, 1939 does not affect the right which a married Muslim woman may have under Muslim Law to her dower or any part thereof on the dissolution of marriage. Mutual rights of inheritance cease after the divorce becomes irrevocable. Cohabitation becomes unlawful after the divorce has become irrevocable and the children born of such an intercourse are illegitimate and cannot be legitimated by acknowledgment. Remarriage between divorced couple is unlawful where husband has divorced wife by three declarations subject to following course:

(a) Wife should observe Iddat;

(b) After observing Iddat, she should bed lawfully married to another person;

(c) This intervening marriage must be actually consummated;

(d) The second husband must pronounce divorce or die; and

(e) The wife should observe Iddat after this divorce or death.

(vi) Ld. Counsel relied upon the case of