Brief Facts of the case
The marriage between the petitioner and the respondent was solemnised as per the Islamic rites and customs. The wife filed DVC for the relief U/s 18(a) and (b), 19(a), (b) and (c), 20(1)(d) and 22 of Protection of Women from Domestic Violence Act, 2005. The trial court ordered the husband to pay a sum of Rs.5 Lakhs as compensation for having inflicted domestic violence on the complainant and a sum of Rs.25,000/- per month towards the maintenance of the minor child. Aggrieved by the same husband filed an appeal and the same was also dismissed. Questioning the same, the husband filed the civil revision petition before the Madras High Court.
Discussion
In this case, the complainant concedes that the revision petitioner sent the first Talaq notice dated 03.08.2017 and the second Talaq notice dated 11.09.2017. The revision petitioner claimed that the third Talaq notice was sent on 11.11.2017 following which the Shariat Council of Tamil Nadu Thowheed Jamath granted divorce certificate on 29.11.2017. He also admits having married another woman on 28.01.2018. On the other hand, the complainant/wife asserts that her marriage with the revision petitioner was not dissolved and that the third Talaq notice was never received and that during the subsistence of their marriage, the revision petitioner married another person.
The only question that calls for consideration is whether the courts below were justified in awarding compensation of Rs.5.00 lakhs to the complainant.
Justice G.R.Swaminathan observed that, according to Section 3 of the Central Act 43 of 2005, any act or conduct of the husband which injures or causes harm, whether physical or mental to the wife shall constitute domestic violence, and continued that Second marriage by anyone including a Muslim during the subsistence of the first marriage is an act of domestic violence.
“If a Hindu/Christian/Parsi/Jew husband contracts second marriage during the subsistence of the first marriage, it would constitute cruelty besides being an offence of bigamy. It would obviously be considered an act of domestic violence entitling the wife to claim compensation under Section 12 of the Act. Will this proposition apply in the case of Muslims ?. The answer is “Yes”. It is true that a Muslim male is legally entitled to contract as many as four marriages…… The wife cannot stop the husband from entering into a second marriage. She, however, has the right to seek maintenance and refuse to be a part of the matrimonial household”
The Hon’ble Judge relied on the Division Bench of Karnataka High Court in the decision reported in ILR 2021 KARNATAKA 746 (Yusuf Patel V. Ramjanbi) to substantiate the above view.
The Hon’ble Judge observed that though the revision petitioner claims that he entered into the second marriage only after dissolving his first marriage by pronouncement of talaq in the manner laid down by law. The complainant/wife denies the same stating that third talaq was not pronounced. In this case, no material has been placed by the revision petitioner/husband that the third talaq notice was served on the complainant/wife. After relying on the judgments of the Gauhati High Court in Jiauddin Ahmed v. Anwara Begum [(1981) 1 Gau LR 358] and Rukia Khatun v. Abdul Khalique Laskar [(1981) 1 Gau LR 375], the Hon’ble Judge came to the conclusion that declaration through court is mandatory, if the wife disputes the Talaq.
“In the very nature of things, strict compliance has to be insisted upon. If the husband claims that he had divorced the first wife by properly pronouncing talaq three times, and it is disputed by the wife, the question arises if the marriage has been validly dissolved. The issue cannot be left to the unilateral determination of the husband. That would amount to the husband becoming a judge of his own cause. The only appropriate and legally permissible course would be to call upon the husband to obtain a judicial declaration that the marriage has been validly dissolved. So long as such a declaration has not been obtained from the jurisdictional court, the resultant effect is that the marriage is deemed to subsist. The burden is entirely on the husband to satisfy the Court that he had pronounced the talaq in the manner approved by law. It is he who must go to the court and obtain declaration. This of course would be necessary only if the wife disputes the validity of the talaq pronounced by the husband.”
The Hon’ble Judge noted that the certificate dated 29.11.2017 issued by Shariat Council, Tamil Nadu Thowheed Jamath is not proper. because the father of the revision petitioner stood as a witness and the revision petitioner had failed to obtain any judicial declaration that his marriage with the respondent herein was legally dissolved, and held that the marriage between the complainant and the revision petitioner is still holding good. In such circumstances, the second marriage would amount to cruelty.
“The act of second marriage would have caused considerable emotional distress and pain to the complainant. Without a doubt, it amounts to cruelty. The Courts below were therefore justified in awarding compensation”
With which dismissed the Revision Petition and justified the compensation rendered to the wife.
Special Mention
It is pertinent to mention here that the Hon’ble Judge expressed his disconsolate feelings in this judgement through the following words.
“Should Muslim wives suffer this tyranny for all times? Should their personal law remain so cruel towards these unfortunate wives? Can it not be amended suitably to alleviate their sufferings? My judicial conscience is disturbed at this monstrosity. The question is whether the conscience of the leaders of public opinion of the community will also be disturbed.”
The question is left to the readers.
Party
M.A.Rafi Ahamed vs Vaseela Banu; Case Number: C.R.P.(MD).No.2255 of 2023; Advocates Appeared: Mr.K.C.Maniyarasu for Petitioner, Mr.D.Srinivasa Ragavan for Respondent Coram: Justice G.R.Swaminathan Court: Madurai Bench of Madras High Court
