The court upheld a single talaq despite its description as irrevocable, treating it as talaq ahsan effective after three lunar months. It dismissed the wife's appeals seeking invalidation of the talaq and restitution of conjugal rights. No maintenance settlement was accepted or awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021/2ND ASWINA, 1943
MAT. APPEAL NO.223 OF 2021
AGAINST THE JUDGMENT DATED 15.2.2021 IN O.P.NO.2662/2019 OF FAMILY COURT,ERNAKULAM
APPELLANT/PETITIONER IN OP:
A.SAJANI AGED 59 YEARS W/O.DR.B.KALAM PASHA, MAJNOOR, MUNDAKKAL, KOLLAM-681001.
BY SMT.A. SAJANI(PARTY-IN-PERSON) BY ADV SMT.M.VANAJA
RESPONDENT/RESPONDENT IN OP:
DR.B.KALAM PASHA AGED 58 YEARS S/O BADUSHAH, HIDAYA HOUSE, FATHIMA CHURCH LANE, ERNAKULAM-682020.
BY ADVS.SRI.BABU KARUKAPADATH(CAVEATOR) BY SRI.T.KRISHNANUNNI (SR.), AMICUS CURIAE BY ADVS.SRI.P.U.VINOD KUMAR SRI.ARYA RAGHUNATH BY ADVS.SMT.M.A.VAHEEDA BABU SMT.VAISAKHI V. SRI.T.M.MUHAMMED MUSTHAQ SRI.KARUKAPADATH WAZIM BABU
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2021 ALONG WITH MAT.APPEAL.NO.227/2021, THE COURT ON 24.09.2021 DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 24TH DAY OF SEPTEMBER 2021/2ND ASWINA, 1943
MAT.APPEAL NO.227 OF 2021 AGAINST THE JUDGMENT DATED 15.2.2021 IN O.P.NO.675/2019 OF FAMILY COURT,ERNAKULAM
APPELLANT/PETITIONER IN OP:
A.SAJANI AGED 59 YEARS W/O.DR.B.KALAM PASHA, MAJNOOR, MUDAKKAL, KOLLAM 681 001.
BY SMT.A. SAJANI(PARTY-IN-PERSON) BY ADV.SMT.M.VANAJA
RESPONDENTS/RESPONDENTS IN OP:
1 DR.B.KALAM PASHA AGED 58 YEARS S/O.BADUSHAH, HIDAYAA HOUSE, FATHIMA CHURCH LANE, ERNAKULAM 682 020.
2 JUVILY, AGED 27 YEARS FATHER'S NAME NOT KNOWN, HIDAYA HOUSE, FATHIMA CHURCH LANE, ERNAKULAM 682 020
BY ADVS.SRI.BABU KARUKAPADATH (CAVEATOR) BY SRI.T.KRISHNANUNNI (SR.), AMICUS CURIAE BY ADVS.SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SMT.ARYA RAGHUNATH SMT.VAISAKHI V. SRI.T.M.MUHAMMED MUSTHAQ SRI.MOHAMED HISHAM P
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2021 ALONG WITH MAT.APPEAL.NO.223/2021, THE COURT ON 24.09.2021 DELIVERED THE FOLLOWING:
Mat. Appeal.Nos.223 & 227/2021 :: 3 ::
'C.R.'
J U D G M E N T
A.K. Jayasankaran Nambiar, J.
These MAT Appeals arise from a common judgment dated 15.02.2021 of the Family Court Ernakulam in O.P.Nos.675/2019, 2662/2019 and M.C.No. 297/2019. The OP’s and MC were preferred by Smt. A.Sajani against her husband Dr. B. Kalam Pasha, a serving judicial officer in the State of Kerala. While the prayer in the OP’s were for a declaration that the talaq pronounced against her by her husband was void and invalid, and for a consequential decree for restitution of conjugal rights, the prayer in the MC was for maintenance in terms of Section 125 of the Code of Criminal Procedure [hereinafter referred to as the 'Cr.PC'] on the premise that the marriage continued to subsist in the eyes of law. The court below, by the common judgment aforementioned, dismissed the OP’s and consequently the MC as well. While the two appeals preferred by the appellant before us are against the common judgment of the Family Court in the OP’s mentioned above, for reasons best known to the appellant, no appeal/revision has been
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carried against the common judgment insofar as it dismisses the MC filed for maintenance.
Proceedings before the court below:
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marriage with a younger girl, impleaded as the second respondent in the OP, and that he had kept the said fact a secret owing to his position as a judicial officer. On the said factual pleadings, the appellant contended that the talaqnama was not a valid one in law since (i) it was post dated and the date was corrected by the respondent only subsequently through his letter dated 09.03.2017 and the said correction was not attested by any witness, (ii) 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] (iii) that no valid grounds had been established by the respondent that would have enabled him to divorce her. The prayer in the OP was for a declaration that the talaq pronounced by the respondent was illegal and void, that she continued to be the sole living wife of the respondent and that the second respondent was not the legally wedded wife of the respondent.
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absence of a valid talaq, the petitioner continued to be the legally wedded wife of the respondent, whom he had deserted since September, 2016. Taking into account the income of the respondent and the amount required to meet her living expenses, she claimed maintenance @ Rs.1 Lakh per month from the respondent.
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Further, even despite serious and genuine attempts at mediation and reconciliation, at the instance of family elders of both the parties, on 01.10.2016 and 25.11.2016, the petitioner was not willing to change her attitude towards him and his family. It was thus, when left with no other option, that he chose to pronounce the talaq on 01.03.2017 in the presence of two witnesses with a view to dissolve the marriage with the petitioner. The fact of pronouncement of talaq was intimated to the petitioner through the talaqnama dated 01.03.2017, accompanied by a payment of Rs.30,000/- into her mother’s bank account towards maintenance for the Iddat period. That on discovering that the date mentioned in the talaqnama was mistakenly typed as 01.03.2018, he intimated her of the typographical mistake through another letter dated 09.03.2017. That while the petitioner accepted the payment of Rs.30,000/- by withdrawing the said amount from the bank account, she subsequently questioned the validity of the talaq with the sole intention of harassing him. The respondent maintained that what he had pronounced was a ‘ Talaq Ahsan’ and the use of the word ‘irrevocably’ was only to alert the petitioner of the seriousness of the decision and to indicate that it was not to be taken lightly. It is stated that notwithstanding the pronouncement of talaq, the respondent was ready and willing to revoke the talaq if the petitioner was willing to amicably resolve the issues between them, and this is evidenced by the reconciliatory talks that took place in
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the presence of mediators on 18.05.2017. The petitioner, on the other hand, treated the marriage as dissolved and, through a letter dated 14.07.2017 demanded a huge amount from him towards maintenance on the understanding that the talaq had already taken effect by then. It was contended by the respondent that inasmuch as the talaq dated 01.03.2017 had effectively dissolved his marriage with the petitioner on the expiry of the Iddat period, he married the 2nd respondent on 25.02.2018.
The findings of the court below:
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the learned judge found that the denouncement by the supreme court of the practice of triple talaq, applied as such only to talaqs effected through three pronouncements all made together. As in the case before it, there had been only a single pronouncement, it had to be seen as a Talaq Ahsan, notwithstanding the express use of the word ‘irrevocably’ in the talaqnama. It was also found significant that there had been reconciliation attempts, at the instance of elder family members of either party on 01.10.2016 and 25.11.2016, before the pronouncement of talaq on 01.03.2017 and thereafter on 18.05.2017 as well. These attempts at reconciliation clearly suggested that the pre-requisites for a valid talaq were complied with and, further, that notwithstanding the use of the term ‘irrevocably’ in the talaqnama, the respondent had attempted a reconciliation with the petitioner in order to keep the marriage alive. The learned judge then referred to the depositions of the petitioner during cross-examination and her subsequent conduct in court during arguments to observe that her psychotic and suspicious behaviour was sufficient to establish that the marital bond between the petitioner and the respondent was irretrievably broken and beyond reconciliation. The talaq was accordingly held to be a talaq ahsan and valid and the prayer for restitution of conjugal rights was denied. Further, in view of the finding that the talaq pronounced was a valid one, the prayer for maintenance in terms of Section 125 of the Cr.PC was rejected and the petitioner relegated
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to her remedy of preferring a claim under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986.
The proceedings before us:
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matters, to assist the court as amicus curiae . It was only thereafter that we proceeded to hear Smt. Vanaja Ramaswamy, learned counsel for the appellant, Sri. Babu Karukapadath, the learned counsel for the respondent and the learned amicus curiae in extenso on the various issues that arise for consideration. We might observe that while we have had the benefit of hearing some erudite submissions from learned counsel on either side, we would be failing in our duty if we do not acknowledge and express our gratitude to the learned senior counsel for the invaluable assistance rendered to this court.
The law governing talaq and maintenance:
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the nature and characteristic features of a triple talaq or talaq-ulbiddat that was found objectionable by the court and which led the court to hold the practice as bad in law. Referring to Mulla, Principles of Mahomedan Law (20th Edn), the court noticed the forms of divorce recognised in Islamic Law as under:
“ 311. Different modes of talak . – A talak may be effected in any of the following ways:-
(1) Talak ahsan . – This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat .
When the marriage has not been consummated, a talak in the ahsan form may be pronounced even if the wife is in her menstruation.
Where the wife has passed the age of periods of menstruation the requirement of a declaration during a tuhr is inapplicable; furthermore, this requirement only applies to a oral divorce and not a divorce in writing.
Talak Ahsan is based on the following verses of Holy Quran: “and the divorced woman should keep themselves in waiting for three courses.” (II:228).
“And those of your woman who despair of menstruation, if you have a doubt, their prescribed time is three months, and of those too, who have not had their courses.” (LXV: 4).
(2) Talak hasan - This consists of three pronouncements made during successive tuhrs , no intercourse taking place during any of the three tuhrs .
The first pronouncement should be made during a tuhr , the second during the next tuhr , and the third during the succeeding tuhr .
Talak Hasan is based on the following Quranic injunctions:
“Divorce may be pronounced twice, then keep them in good fellowship or let (them) go kindness.” (II: 229).
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“So if he (the husband) divorces her (third time) she shall not be lawful to him afterward until she marries another person.” (II: 230).
(3) Talak-ul-bidaat or talak-i-badai. - This consists of –
(i) Three pronouncements made during a single tuhr either in one sentence, e.g., “I divorce thee thrice ,” - or in separate sentences e.g., “I divorce thee, I divorce thee, I divorce thee”, or
(ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage, e.g., “I divorce thee irrevocably.”
Talak-us-sunnat and talak-ul-biddat :- The Hanafis recognized two kinds of talak, namely, (1) talak-us-sunnat , that is, talak according to the rules laid down in the sunnat (traditions) of the Prophet; and (2) talak-ul-biddat , that is, new or irregular talak . Talak-ul-biddat was introduced by the Omeyyade monarchs in the second century of the Mahomedan era. Talak-ul-sunnat is of two kinds, namely, (1) ahsan , that is, most proper, and (2) hasan , that is, proper. The talak-ul-biddat or heretical divorce is good in law, though bad in theology and it is the most common and prevalent mode of divorce in this country, including Oudh. In the case of talak ahsan and talak hasan , the husband has an opportunity of reconsidering his decision, for the talak in both these cases does not become absolute until a certain period has elapsed (Section 312), and the husband has the option to revoke it before then. But the talak-ulbiddat becomes irrevocable immediately it is pronounced (S.312). The essential feature of a talak-ul-biddat is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr . But the triple repetition is not a necessary condition of talak-ul-biddat , and the intention to render a talak irrevocable may be expressed even by a single declaration. Thus if a man says “I have divorced you by a talak-ul-bain (irrevocable divorce)”, the talak is talak-ul-biddat or talak-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression “ bain ” (irrevocable) manifests of itself the intention to effect an irrevocable divorce.” [emphasis supplied]
What was found objectionable and illegal by the majority on the bench, as regards the practice of triple talaq or talaq-ul-biddat , was
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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 (Nariman & Lalit JJ) and ‘antiquaranic and bad in theology’ (Kurian Joseph J).
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The court reasoned that Muslim law – either through Quaranic injunctions or through the Sunnahs or Ahadis - did not enumerate causes for divorce that are reasonable or causes that are unreasonable. It was found that Islamic Law did not obligate a man to give reasons for the divorce or satisfy anyone else of such reasons. As regards the non-justiciability of the reasons, it was observed that if courts were to look into the reasonableness of the cause for divorce, there would be as many interpretations about the reasonableness of the cause for divorce as there are judges, making the law of divorce in Muslim law uncertain, vague and confusing. Thus, the test for ruling out the vice of instantaneousness is to see whether there were genuine 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. If such reconciliation attempts have in fact taken place, then, notwithstanding that such attempts proved futile, the pronouncement of talaq must be seen as valid and for a reasonable cause. That, however, is just one aspect of the matter.
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such pronouncement is only once, or thrice over three successive lunar months, when the husband can revoke the talaq. This procedure, in our view, is intended to give the husband an opportunity to reflect upon his action (of having pronounced the talaq) and to try and restore the marital relationship if possible, while at the same time affording the wife a further opportunity to convince her husband that their marriage can still be saved. Such instances may arise for eg. If the wife discovers that she is pregnant during the three-month period aforementioned. There may be myriad other reasons that could prompt a husband to reconsider his decision, and it is for enabling the husband to undo his action, and to ensure that it is not one taken irrationally, that the procedure prescribed for a valid talaq has an in-built component of introspection, that postpones the stage of irrevocability of the talaq to a period after three lunar months. We are of the view that this aspect of a pronouncement of talaq is also of great significance and purpose and a non-adherence to it could render the pronouncement invalid.
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Muslim husband, unlike the husbands in any other religion, has a unilateral right to divorce his wife without intervention of the court. It was considering the vulnerability of such a wife that the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted to confer on the divorced Muslim wife higher and superior rights than her counterparts in other religions. Accordingly, a larger and superior right is available to the Muslim wife who faces the vulnerability of arbitrary and unilateral divorce at the hands of her husband without intervention of any court. Even when she is able to maintain herself, she can claim capitalised amounts under Section 3 of the Act. It is also significant that the rights of the divorced woman under Section 125 of the Cr.PC do not get extinguished on account of the larger rights conferred under Section 3 of the Act. If the divorced Muslim woman chooses to claim amounts under Section 3 of the Act, only on such payments being actually made either voluntarily or in response to an order of the court does Section 127 (3)(b) of the Cr.PC get attracted to extinguish the liability of the husband under the Cr.PC. Till then, or till she remains a divorced Muslim wife, she will be entitled to claim maintenance from her divorced husband. Death, remarriage or actual payment of the amounts payable under Section 3 of the Act alone shall extinguish her right under Section 125 Cr.PC to claim maintenance.
Our analysis and findings:
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months immediately following the pronouncement? As already noticed, this is the sheet anchor of the appellant’s contention – that the 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. Here we find that the use of the word ‘irrevocably’ in the talaqnama is certainly suggestive of an intimation by the respondent to the appellant, that he was not ready to reconsider his decision. We have to bear in mind that the choice of words is that of the respondent who is a serving judicial officer of the State and it cannot be presumed that he had used the word 'irrevocably' without understanding its significance. Had it not been for subsequent events that unfolded, we would have certainly held the pronouncement of talaq as illegal on this ground. However, we notice from the evidence before us that, even after the pronouncement of talaq, there were in fact, efforts at reconciliation, albeit unsuccessful, that were pursued on 18.05.2017, in which family members of either party participated. The conduct of the parties suggest that they never considered the talaq pronounced on 01.03.2017 as irrevocable from that date onwards. We also find that within a year after the pronouncement of talaq, the respondent married another woman on 25.02.2018. Under the said circumstances, therefore, we feel that the ends of justice would be
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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 . We hold therefore 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.
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about two hours to try and convince her that a settlement of the nature suggested above would be in her best interest. The appellant, however, was not amenable to any settlement unless the settlement amount was fixed at Rs.1.20 crores, the basis of computation of which figure she was not able to show us. As against the above, the figure that we had arrived at, based on various factors such as the present age of the appellant, the probability of her remarrying, the standard of living that she was used to when she was the respondent’s wife, her future expenses and the income and average expenses of the respondent, was Rs.12 Lakhs {Rs.10,000/- per month x 120 months (ten years)} with interest @ 9% per annum for the period from 01.03.2017 till date of payment. This amount would have been payable to the appellant after reducing therefrom, the Rs.30,000/- already paid to her by the respondent for the iddat period. We might clarify that in arriving at the said computation we were guided by the observations of the Supreme Court in Danial Latifi v. Union of India – [(2001) 7 SCC 740] – that “the purpose of the Muslim Women (Protection of Rights on Divorce) Act, 1986 appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat. However a careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. Parliament seems to intend that the divorced woman gets sufficient means of livelihood
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after the divorce, and therefore, the word “provision” indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provisions for her residence, her food, her clothes and other articles.”
As already noticed above, the appellant was not ready to accept the amounts offered to her and insisted that she would not settle for any amount less than Rs.1.20 crores. Under the circumstances, we are left with no other alternative than to dismiss the appeals as devoid of merit. We do so, but not without a tinge of despair at the unfortunate turn of events.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/MOHAMMED NIAS C.P. JUDGE
prp
2 issues framed by the court
Did unsuccessful reconciliation attempts through family arbiters satisfy the prerequisites for a valid talaq?
Did describing a single talaq as irrevocable invalidate it despite subsequent reconciliation efforts within three lunar months?
Colour shows how this judgement treated each authority
Shayara Bano v. Union of IndiaExplained¶62
Shayara Bano v. Union of India – [(2017) 9 SCC 1] · Who else cites this
Shamim Ara v. State of UPRelied on¶84
Shamim Ara v. State of UP – [(2002) 7 SCC 518] · Who else cites this
Kunhimohammed v. AyishakuttyApplied¶95
Kunhimohammed v. Ayishakutty – [2010 (2) KLT 71]
Danial Latifi v. Union of IndiaRelied on¶103
Danial Latifi v. Union of India – [(2001) 7 SCC 740] · Who else cites this
3 provisions across 2 enactments
A.SAJANI
DR.B.KALAM PASHA
JUVILY
A.K.JAYASANKARAN NAMBIAR
MOHAMMED NIAS C.P.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
