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Second Appeal No. 597 of 1957, decided on 9th August 1960.
Muhammadan Law‑Divorce‑Bedai mode of "talaq" (simul taneous pronouncement of three "talaqs") discussed.
The bedai mode of talak becomes effective immediately after it is either uttered orally or written down on a piece of paper or on something else from which it can be deciphered. If it is manifest, no question of the intention of the husband is necessary to make the talak effective. Although the knowledge of the wife is necessary for certain other collateral purposes, communication is not necessary for the validity of the talak.
Mst. Lalan Bibi v. Muhammad Ashfaq P L D 1951 Lab. 467; Saiyid Rashid Ahmad and another v. Mst. Anisa Khatun and others 59 I A 25 ; Ameer Ali's Muhammadan Law Vol. II, p. 485 and Baillie's Digest of Muhammadan Law 2nd Ed., p. 233 fol.
Moinul Huq for Appellant.
Nemo for Respondents.
This appeal is against the judgment and decree passed by the Subordinate Judge, 3rd Court, Bakarganj in Title Appeal No. 122 of 1956 which arose out of Title Suit No. 116 of 1953 of the Court of Munsif, Pirojpur.
2. The defendant No. 1 is the appellant before me. The plaintiff's suit was dismissed by the learned Munsif and on appeal the judgment of the learned Munsif was reversed and the suit was decreed in favour of the plaintiff. The plaintiff brought this suit for restoration of conjugal rights against his wife, the defen dant No. 1 appellant before me. The plaintiff's case was that he married the defendant some years back and lived together with her as husband and wife, until in Aswin, 1359 B. S. when the defendant wife was taken to her father's house on the pretext of her mother's illness and inspite of attempts by the plaintiff to bring her back to him she did not come and hence he had to file the present plaint.
3. The suit was contested by the wife defendant No. 1 alone. She admitted her marriage with the plaintiff but con tended that subsequent to her marriage with the plaintiff, the latter married another girl by the name of Anwara and executed a kabinnama in favour of the said Anwara in which the plaintiff inserted a clause being clause No. 9 by which he had divorced the defendant‑appellant in the bedai' mode. The second con tention of the defendant was that the kabinnama which was executed by the plaintiff in her favour contained a condition by which the plaintiff had delegated his power of divorcing the defendant to her and the defendant had exercised this right on the 20th of September 1952 and divorced her husband, the plaintiff, by a registered talaknama.
4. The learned Munsif accepted both the versions of the defendant and dismissed the plaintiff's suit holding that the marriage between the plaintiff and the defendant does not exist.
5. The plaintiff appealed against the said decision of the learned Munsif and the learned Subordinate Judge reversed the judgment of the learned Munsif and decreed the plaintiff's suit holding that the marriage‑tie between the plaintiff and the defendant exists and the plaintiff was entitled to get the defendant in his conjugal domain.
6. The defendant‑wife has preferred the present appeal against the said decision of the learned Subordinate Judge.
7. The defendant No. 1 was married to the plaintiff ad mittedly during her minority and the "ezen" was given by her guardian on her behalf. The plaintiff married Anwara, his second wife, sometime in the first part of 1950. The kabinnama that he executed in favour of Anwara in which is contained the clause of divorce of the defendant, to which I have already made a reference, was registered with the Marriage Registrar at Swarupkhati on 4th or 5th of June, 1950 and the certified copy thereof being Exh. 1 was taken out by the plaintiff on 10‑6‑50. Another certified copy of the said kabinnama was taken out by the defendant‑wife from the District Sub‑Registry office on 5‑1‑53 which is Exh. A in the suit. On 20‑9‑52 the defendant alleges to have exercised her right of talak‑i‑taufaz by registering of the deed of divorce by which she is said to have severed her connection with the plaintiff.
8. Exh. 1, which is the certified copy obtained by the plaintiff of his kabinnama in favour of Anwara, his second wife, bears the seal of the Marriage Registrar's office, but this certified copy shows that clause 9, which is the clause by which he had divorced the defendant‑appellant, is penned through ; whereas Exh. A, which is the certified copy of the same document and which was obtained by the defendant‑appellant from the office of the District Sub‑Registrar at Bakarganj three years after i.e., on 5‑1‑53, contains the clause 9 and in this certified copy the said clause is not penned through. The learned Munsif called for the original kabinnama from the Record Room of the District Sub Registrar, Bakarganj which was duly produced by an officer of the District Registrar and it was found that the original contained the clause 9 and there was no scoring through of the said clause in the original. The learned Munsif, therefore, very rightly held that the divorce given by the plaintiff to the defendant by that 9th clause occurring in the kabinnama of his second wife was effective and has severed his connections with the defendant- appellant as husband and wife. The learned Subordinate Judge has taken a different view on this point. He has relied on the certified copy, Exh. 1, produced by the husband which has the 9th clause penned through, and it is unfortunate that the learned Subordinate Judge has not at all taken into consideration the fact of the original having been produced from the custody of the District Registrar which shows that the 9th clause is intact and has not been penned through at all.
9. The plaintiff has admitted in his deposition that he married Anwara and after divorcing her, has married again another girl named Razia. This only shows the conduct of the plaintiff. It is no doubt reproachful but since I have to administer the law I shall not make any further remarks in this regard. The learned Subordinate Judge, as it is apparent from his judgment, has based his findings and conclusions on something, which is not in evidence and definitely on clear misreading of the evidence and mis conception of the law on the subject. The 9th clause in the kabinnama of Anwara, the second wife of the plaintiff, is in the following words the English translation of which is given below:
"I divorce my existing married wife Sakhina Khatoon daughter of Mohan Bepari of Swarupkhati, by pronouncing 1, 2 and 3 Talak‑Bain (irrevocable divorce) and relinquish my claim of conjugal right on her. I will never claim her to be my wife, even if I make such a claim. it will stand rejected in all Courts of Law and the terms of this kabinnama will remain in force."
This is clearly a divorce in the bedai mode of Shariat Law. He has declared thrice the repudiation of his marriage with the defendant‑appellant and has made it his intention more than clear and specific by saying that even if he claims the defendant as his wife the same will not be accepted in any Court of law.
10. Their Lordships of the Judicial Committee in the case of Saiyid Rashid Ahmad and another v. Mst. Anisa Khatun and others (59 I A 25), had to consider the question of talak given in the bedai mode and their Lordships have held that the talak given in the bedai mode has the immediate effect of severing the marital ties. I quote below the passage occurring at page 27 of the said volume: ‑
"Their Lordships are of, opinion that the pronouncement of the triple talak by Ghiyas‑ud-din constituted an immediately effective divorce, and, while they are satisfied that the High Court were not justified in such a conclusion on the evidence in the present case, they are of opinion that the validity and effectiveness of the divorce would not be effected by Ghiyas‑ud-din's mental intention that it should not be a genuine divorce, as such a view is contrary to all authority, A talak actually pronounced under compulsion or in jest is valid and effective Baillie's Digest, Edn. 2, p. 298 ; Ameer Ali's Mohammedans Law, Edn. 3, Vol. 2, p. 518 ; Hamilton's Hedaya, Vol. 1. 13. 211."
In the present case, the defendant came to know of the divorce given to her by husband in 1950 only in 1953 as is evident from the records, after obtaining the certified copy of the kabinnama executed by the plaintiff in favour of Anwara. But before that she had exercised her right of talak‑tawfiz on 20‑9‑52. Me .learned Subordinate Judge has held that she had not the right to divorce her husband and secondly that the talak given to her by her husband in the kabinnama of her co‑wife, Anwara having not been communicated to her it has not been effective at all. Iv similar question arose in the cash of Mst. Lalan Bibi v. Muhammad Ashfaq (P L D 1951 Lah. 467) In that case it was contended on the basis of the rule obtaining at page 485 of Ameer Ali's book on Muhammadan Law (Vol. 11) which is: ‑
"It is not necessary for the husband himself to pronounce the talak in the presence of the wife, but it is necessary that it should come to her knowledge."
that unless the information of the talak given by the husband is communicated to the wife, it does not take effect, but their Lordships of the Lahore High Court did not accept this conten tion and they have quoted the next rule from Ameer Ali's book on Muhammadan Law (Vol. 11) which is as follows :‑
"As stated already, a talak pronounced in the absence of the woman is valid, but until it comes to her knowledge, she is entitled to her maintenance."
On the basis of this rule their Lordships have held and rightly that although the knowledge of the wife is necessary for certain other collateral purposes, communication is not necessary for the validity of the talak. Then their Lordships have quoted two passages, one from Ameer Ali's book on Muhammadan Law (Vol. 11) and the other from Digest of Muhammadan Law by Baillie. The passage quoted from Ameer Ali's book is as follows: ‑
14. "Writings, among the Hanafis, are said to be of two kinds, viz., marsumah (customary) and ghair marsumah (not customary) When repudiation is given by a writing of the description called customary, it is effective, even when there is no real intention on the part of the husband to divorce the wife. But where the writing, though marsumah, is written so that it is not intelligible, or if it is written on something that cannot be deciphered, there will be no talak, even if he had the intention. In the case of non‑customary writings, if there be any ambiguity, the talak will not take effect; when there is no ambiguity and the meaning of the writer is manifest', the repudiation is valid."
A more detailed discussion of these two forms of repudiation by writing is to be found on page 233 of the Digest of Muhammadan Law by Baillie. The relevant passage reads as follows: ‑
Writings are of two kinds, marsoom, or customary and ghair marsoom, or unusual. The former are those superscribed and addressed, being such as are written to absent persons and bear on their face, from such an one to such an one. The latter are those which are not so superscribed and addressed, and they are also of two kinds moostubeen, or manifest, and ghair moostubeen, or not manifest: the manifest being such as are written on paper, or a wall, or on the ground, 'in such a manner they can be comprehended and read; and those which are not manifest are such as are written on the air, or water, or something that cannot be comprehended and read. By writings that are not manifest repudiation cannot be effected, even though intended; whereas, by writings, that are manifest, though not customary repudiation is effected, when such is the intention, but not otherwise; while by writings of the customary, or regular description, it is effected, whether intended or not. Writings of this kind may either be so expressed that the repudiation takes effect on the mere writings, as when a person having prefaced his letter with the usual compliments, says, But after these you are repudiated', whereupon repudia tion takes effect, and an iddat becomes obligatory on the woman from the time of writing. Or the writing may be so expressed as to make the repudiation dependant on the receipt of the writing; as if one were to write, When this my letter reaches thee then thou art repudiated; in which case repudiation does not take effect till the actual receipt of the letter. And if a person should write to the effect that When this my letter reaches thee then thou art repudiated', and after that should proceed to write of his affairs, and the letter should reach its destination, repudiation would take effect, whether the letter be read or not'.
The above passage is a verbatim translation of passage occurring in section 6, Chapter 11 of Fatawa‑i‑Alamgiri, Vol. 11. In the original work, several other instances of divorce by writing are given one of which is that, if a person wrote to his wife, about his affairs and in the end added, When this my letter reaches thee then thou art repudiated" and then scored off the sentence relating to divorce, the repudiation would take effect when the letter reaches its destination. In the last case, mentioned in the passage from Baillie quoted above, the wife is repudiated even if there is evidence to show that she did not read the letter. In the case quoted from that original book, the wife is repudiated even though the sentence relating to divorce has been erased from the letter.
As explained by Muslim jurists, the real difference between marsumah and ghair marsumah forms of writing is that in the former case the writing operates as talak even though there is no intention to divorce but in the latter case it takes effect if the intention is manifest and not otherwise. But in neither case the validity of talak is made dependant on the knowledge of the wife. This rule appears to apply also to talak given by word of mouth."
From the above quotations of the authorities, it will be evident that the bedai mode of talak becomes effective immediately after it is either ultered orally or written down on a piece of paper or on something else from which it can be deciphered. If it is manifest, no question of the intention of the husband is necessary to make the talak effective. In the present case, not only the fact of talak being given to the defendant by the plaintiff is manifest from clause 9 of the kabinnama, Exh. A, but also the intention of the plaintiff is more than clear and apt. In these circumstances, on the basis of the authorities quoted above, I hold that the defendant‑appellant was divorced by her husband, the plaintiff on the date he executed the kabinnama, Exh. A, in favour of his second wife Anwara in which occurs the 9th clause which contains the statement in writing of his intention and the fact of divorcing the defendant‑appellant.
11. In this view of the matter, I do not think it is necessary to go into the details of the talak‑i‑tafwiz, which was given by the defendant to her husband on 20‑9‑52 by a registered deed of talak executed by her on the said date.
12. I, therefore, hold that the judgment of reversal by the learned Subordinate Judge is not a proper judgment of reversal either on fact or on law.
13. The appeal is, therefore, allowed, the judgment and decree of the learned Subordinate Judge are hereby set aside and the judgment and decree of the learned Munsif are restored.
14. As no one has appeared to contest the appeal, I award no costs. Before I part with this case, I feel I must make the following observations. In view of the fact that the certified copy of the kabinnamah, Exh. 1, granted by the Marriage Registrar to the plaintiff had clause 9 penned through whereas the certified copy of the kabinnamah (Exh. A) obtained by the defendant from the office of the District Registrar, Bakarganj had no such penning through of clause 9, I direct that an enquiry be held into the matter as to whether the penning through of clause 9 in Exh. 1 was done by the office of the Marriage Registrar at Swarupkhati or by the plaintiff after he obtained the certified copy from the Marriage Registrar's office. An action, necessary, on the finding of such enquiry, be taken against the person who has tampered with the public document.
Let a copy of this judgment be sent to the District Magistrate Bakarganj for necessary action.
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