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2024 DAILYLAW 2385 (CAL)

A. K. M. Anwaruzzaman v. Najma Khatun

2024-09-02

Apurba Sinha Ray, Harish Tandon

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JUDGMENT : 1. The instant second appeal arises from a judgment of affirmance where both the Courts have held that the ‘talaq-e-biddat’ at the behest of the Appellant/Husband is void and contrary to the Constitution Bench decision rendered by the Apex Court in the case of Saira Banu Vs. Union of India reported in AIR 2017 SC 4609 2. The facts emanating from the judgment and the records shown to this Court are exposit that both the parties were married on 13.10.1997 according to Muslim rites, rituals and customs and the marriage was duly consummated as a male child was born on 20.07.2000. According to the Wife/Respondent, she was offered a job as a School Teacher and posted at Buxerhat in the district of Cooch Behar but sensing that there is a sizable income which the Wife/Respondent earned from the said service, attempt was made by the Husband/Appellant to cuff up a major portion thereof and on refusal the dispute cropped up. 3. It is further alleged that in the month of November 2007, the Wife/Respondent received a registered envelope evidently issued by the Husband/Appellant containing an affidavit sworn before the Notary Public, Malda that the Husband/ Appellant has pronounced three times the word ‘talaq’ in front of the witness on 12.11.2007 and the aforesaid factum of utterance of the sinful word ‘talaq’ three times, is duly registered with the local Kazi. The Wife/Respondent immediately filed a suit for declaration that the ‘talaq-e-biddat’ is void and bad in law and contrary to the law declared by this Court in Saira Banu (supra). 4. The parties went to trial and adduced evidence. The Trial Court held that the Husband/Appellant has miserably failed to prove the ingredients required for the purpose of sustaining such dissolution of marriage and further held that the pronouncement of the word ‘talaq’ thrice is illegal and declared in such form. The judgment and decree of the Trial Court was carried to the First Appellate Court wherein the said judgment and decree is affirmed. 5. In the instant Second Appeal, learned Counsel for the Husband/Appellant vociferously submits that the Constitution Bench in its judgment rendered in Saira Banu (supra) have unequivocally held that before a Muslim husband embarks his journey on the periphery of ‘talaq- e-biddat’, has to exercise certain acts viz. 5. In the instant Second Appeal, learned Counsel for the Husband/Appellant vociferously submits that the Constitution Bench in its judgment rendered in Saira Banu (supra) have unequivocally held that before a Muslim husband embarks his journey on the periphery of ‘talaq- e-biddat’, has to exercise certain acts viz. the attempt to reconciliation should be resorted and such attempt must be exercised in presence of two persons; one from the side of the husband and other from the side of the wife. 6. The act of pronouncing ‘talaq’ under ‘talaq-e-biddat’ must pass through a muster of reasonability otherwise it brings inequality amongst equals offending the ethos of the Article 14 of the Constitution of India. On the contour of aforesaid Law so declared let us examine whether both the Courts have committed an error or failed to discharge its solemn duty entrusted upon it by statute to constitute a substantial question of law. 7. As indicated above, both the Courts have concurrently held that the triple ‘talaq’ pronounced by the Husband/ Appellant is not in conformity with the law laid down by the Constitution Bench of the Supreme Court in Saira Banu (supra) which according to the Counsel for the appellant is applied under misconception. It is arduously submitted before us that there was every attempts taken by the Husband/Appellant to restore the relationship and only after perceiving the conduct of the Wife/Respondent, such pronouncement was done which is permissible under the Shariat Law/Personal Law. It is further submitted that there was an attempt for reconciliation and after the failure thereof, the ‘talaq’ was pronounced which cannot be said to be in violation of the mandate given in Saira Banu (supra). 8. At the first blush, the argument appears to be convincing but after perusing the findings returned by both the Courts below, we do not find that what is argued before us raises a substantial question of law under Section 100 of the Code of Civil Procedure. The ‘talaq’ was communicated to the Wife/Respondent through a letter containing an affidavit sworn before the Notary Public and the extract of the registration made before the Kazi. The ‘talaq’ was communicated to the Wife/Respondent through a letter containing an affidavit sworn before the Notary Public and the extract of the registration made before the Kazi. The Apex Court in Saira Banu (supra), unequivocally held that though the ‘Hanafi Law of School’ by virtue of the Personal Law recognizes various forms of ‘Talaq’including the ‘talaq-e-biddat’ to be a sinful act yet it is accepted by the Court with a rider that there must be an attempt for reconciliation between the husband and the wife by two Arbiters from their respective families in order to resurrect or restore the marital tie or marital bonding; in other words, the emotions or sentiments which they bore for each other. Unless such attempt is made, it would be more sinful for the wife to be separated from the marital institutions on the pronouncement of three words. 9. We invited the Counsel for the Appellant whether these Arbiters from the respective families were cited as witness before the Trial Court when the trial was in progress. The Wife/Respondent instituted a Suit seeking declaration that the ‘Talaq-e-Biddat’ is void, illegal and be declared as such and the moment the Husband/ Appellant took a plea that all formalities required under the Personal Law have been duly followed and/or strictly adhered to, the onus lies upon him to prove the same. The person who asserts positively, is required under the Law to prove the same. Admittedly, none of the witnesses who could throw light on the reconciliation, were, cited as a witness. 10. A plea is sought to be taken before us that the suit was filed much before the Constitution Bench decision rendered by the Apex Court in Saira Banu (supra). Even the submission is made that the judgment was delivered by the Trial Court much prior to the pronouncement of the judgment of the Constitution Bench. 11. We do not find that such fact would act as a deterrent in deciding the cause or the questions so raised. The Law declared by the Apex Court has its binding effect on all the pending litigations as the Apex Court did not in express terms indicate that the said judgment would operate prospectively. 11. We do not find that such fact would act as a deterrent in deciding the cause or the questions so raised. The Law declared by the Apex Court has its binding effect on all the pending litigations as the Apex Court did not in express terms indicate that the said judgment would operate prospectively. The Law declared during the pendency of a lis is to be decided on the basis of a Law declared by the Supreme Court, even if subsequent to the institution of the suit or a decision taken by the Court of first instance or by the First Appellate Court and, therefore, we do not find that there is any incongruity in deciding whether the case involves substantial question of law in the instant Second Appeal on the basis of the law declared by the Apex Court in Saira Banu (supra). 12. The judgment of the Constitution Bench in unequivocal terms held that the triple ‘talaq’ is unconstitutional and violative of Article 14 of the Constitution of India with the rider that if the said attempt passes through the test of reasonability and an attempt for reconciliation, the position would have been somewhat different. In such scenario it depends upon case to case and, therefore;have to be applied with care and caution. 13. In the instant case, we do not find that the mandatory test for upholding the triple ‘talaq’ has been proved nor any attempt was made in this regard. We, therefore, do not find that the ultimate decision of the Trial Court as well as the First Appellate Court is contrary to law. We also do not find any substantial question of law involved in the instant appeal. 14. SAT 1 of 2022 is thus dismissed . No order as to costs. 15. The connected application being CAN 1 of 2022 also stands dismissed.