Prayagraj (UP), Apr 2 The Allahabad High Court has observed that a divorce under the Mohammedan Law takes effect from the date a husband pronounces "talaq" and a subsequent court decree confirming it is merely declaratory in nature.
In his judgment passed on March 10, Justice Madan Pal Singh clarified that such a court decree does not create a fresh divorce from the date of the judgment, rather, it relates to the original date of the talaq pronouncement.
The above observation was made while hearing a plea filed by one Humaira Riyaz, who challenged a family court order at Prayagraj which had rejected her application under Section 125 CrPC seeking maintenance from her husband.
The Allahabad High Court allowed the wife's petition and set aside the family court's order which denied maintenance to her. The matter is now remanded to the family court to decide the wife's claim of maintenance afresh on its merits.
The wife's plea was that her first husband had pronounced talaq on February 27, 2005 and a declaratory suit was subsequently filed. A decree was passed by the civil court on January 8, 2013, which declared the 2005 talaq to be valid, her plea stated.
According to the wife's counsel, "During the pendency of the declaratory suit, but after her iddat period, the wife solemnised her second marriage in May 2012 and her second husband had full knowledge of the earlier divorce. Hence, the second marriage was valid according to the Mohammedan law."
"After some time of the second marriage, when the second husband refused to take care of financial needs, she filed an application under Section 125 CrPC seeking maintenance from her second husband," argued the wife's counsel.
On the other hand, her husband's counsel argued that the revisionist solemnised the second marriage without obtaining a valid divorce from her first husband.
It was submitted that since the divorce decree was granted only in 2013, the alleged second marriage in 2012 was void under the Mohammedan Law.
The family court denied her claim primarily on the ground that her first marriage had not been legally dissolved as of the date of her second marriage, and hence, the second marriage was void.
The present petition was, therefore, filed before the high court.
The court observed, "It is further settled that where a husband pronounces talaq and subsequently approaches the court seeking a decree regarding the same, the decree passed by the court is ordinarily declaratory in nature, which merely recognises or confirms the status of divorce that had already taken place," the bench clarified.
The bench rejected the husband's contentions noting that where a husband pronounces talaq and subsequently approaches the court for a decree, the decree merely confirms the status of the divorce that had already taken place.
