The Allahabad High Court has set aside a Prayagraj family court order denying maintenance to a woman on the grounds that she solemnised second marriage before the talaq pronounced by her first husband was declared valid by court.
In its order, the single bench of Justice Madan Pal Singh said, “Under Mohammedan Law, when a husband pronounces talaq, the divorce takes effect from the date on which the talaq is pronounced, subject to its validity in accordance with law.”
The bench added, “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 recognizes or confirms the status of divorce that had already taken place. The decree of the court does not create a fresh divorce from the date of the judgment but only declares whether the talaq had already been validly pronounced earlier.”
Humaiyra Riyaz, a resident of Prayagraj, had filed a revision petition in the HC challenging the order passed by the principal judge, family court, Prayagraj, on May 27 last year, rejecting maintenance for her from her second husband while awarding the same to her two minor sons.
Her counsel submitted that in February 2002, she first married Abdul Waheed Ansari who pronounced talaq on February 27, 2005. Ansari later filed a “declaratory suit” in the family court which on January 8, 2013, declared the 2005 talaq valid.
The counsel further submitted that the petitioner, after observing the period of iddat (a waiting period mandatory in Muslim Law for woman to observe after the divorce or death of husband), solemnised her second marriage with Mohammad Daud on May 27, 2012. The latter had full knowledge of her divorce with her first husband, it was maintained.
The woman had two sons from the second marriage, the counsel added.
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He further said the second husband himself admitted her first marriage as well as the paternity of the two sons. Therefore, the family court committed a manifest error in treating the marriage between the parties as void, he added.
The second husband, a Central government employee who earns a substantial salary, refused to provide maintenance to the woman and their minor sons, the counsel submitted. The family court rejected the claim of maintenance mainly on the ground that on the date of the second marriage the first marriage had not been legally dissolved, he added.
The second husband’s counsel, however, submitted that Humaira’s first marriage continued until the decree of divorce was passed by the family court on January 8, 2013.
He further contended that during the subsistence of that marriage, she filed proceedings seeking maintenance against her previous husband and was granted maintenance of Rs 2,000 per month, for which an execution case was also filed. However, concealing this material fact and without obtaining a valid divorce from her earlier husband, she solemnised the second nikah, the counsel submitted.
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The counsel argued that since the decree of divorce from her previous husband was granted only on January 8, 2013, and the mandatory requirement of observing the iddat period was also not fulfilled, the alleged second marriage (on May 27, 2012) was void under the Mohammedan Law.
Hearing the submissions, the HC bench observed it appears that the family court rejected the claim of maintenance mainly on the premise that the decree declaring the divorce was passed subsequently and, therefore, the second marriage was void.
“The approach adopted by the learned Family Court does not appear to be in consonance with the settled legal position that a decree in such cases is merely declaratory and relates back to the date of pronouncement of talaq,” the bench of Justice Singh observed.
It further observed that the matter required reconsideration by the family court after properly examining the effect of the talaq allegedly pronounced earlier and the nature of the decree passed in the declaratory proceedings, as well as the other on record evidence.
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The order further stated “the matter is remanded back to the Principal Judge, Family Court to decide the claim of maintenance of the revisionist afresh on merits, in accordance with law, after affording an opportunity of hearing to both the parties and keeping in view the observations made hereinabove”.
“It is expected that the learned family court shall make an endeavour to decide the matter expeditiously, preferably within a period of six months from the date of production of a certified copy of this order,” the bench added.
