The day a Muslim woman is divorced by her husband with the pronouncement of Talaq is the day from which the divorce is effective. A court paper merely puts it on record, the Allahabad High Court said today.
The order is a first of its kind. Since marriage and divorce among the Muslim community come under the ambit of the Muslim Personal Law, even the Supreme Court has not commented on this.
The High Court was hearing a petition from a woman whose petition of maintenance from her second husband was rejected by a family court, which declared her second marriage invalid.
The family court had reasoned that since she had no court decree of divorce from her first husband when she married a second time, the marriage was void.
The judge, Madan Pal Singh, said the court decree -- while availed in 2013 -- was just declaratory in nature. Since her divorce from the first husband took place in 2005 and she married in 2012, the second marriage was valid.
Also, her second husband had married her knowing she was divorced and had accepted the paternity of their two sons, the court pointed out, and asked the family court to review the matter again and provide a resolution within six months.
The woman's divorce decree was obtained in 2013. Her second husband had also pointed out that she had sought maintenance from her first husband while they were married.
Counsel of Mohammad Daud, the second husband, said Humaira Riyaz married Abdul Waheed Ansari in February 2002 and their marriage continued until the decree of divorce was passed by the Family Court, Prayagraj on January 2013.
"The revisionist had also filed proceedings under Section 125 CrPC against her earlier 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, the revisionist solemnized Nikah with the opposite party no.2 on 27.05.2012. Since the decree of divorce from her earlier husband was granted only on 08.01.2013 and the mandatory requirement of observing the iddat period was also not fulfilled, the alleged marriage with the opposite party no.2 was void under Mohammedan Law.
The judge 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. 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. In such circumstances, 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".
