The marriage between the appellant and the first respondent took place in 1950 and a child was born of the marriage. After the birth of the child, the wife was taken away from the appellant by her parents. All the efforts by the husband to get his wife back failed and therefore the appellant filed a suit before the Munsif’s Court, Calicut, for restitution of conjugal rights in 1959. The wife responded, originally with a suit for mahr and return of ornaments, three years later with a petition for divorce on the grounds of non-maintenance and cruelty. The husband was granted a decree for restitution subject to payment of mahr and the wife’s divorce petition was dismissed in 1963. By that time the marriage had clearly broken down for a long time and it is evident that the court decrees did not match the social relity on the ground (Pearl and Menski, 1998: 309).
The wife afterwardstook the advice of D. W. 1. (a ‘Maulvi) who was said to be well-versed in Islamic theology unilaterally divorced her husband, apparently by means of ‘Faskh’ without the husband’s presence or his consent and she entered into another marriage with the second respondent. The appellant therefore brought this complaint before the District Magistrate’s Court stating that the first respondent has committed an offence of bigamy and the other accused abetted the crime.
The learned District Magistrate held that the first accused could divorce her husband by Faskh. He also held that even if divorce by Faskh is not valid in law, she cannot be deemed to have committed an offence as she was protected by the advice given by D. W. 1. All the accused were acquitted. It is against this acquittal that the present appeal is filed at High Court.
1) Whether a Muslim woman can repudiate her marriage de hors the provisions of the Dissolution of Muslim Marriages Act 1939?
Judge V. Khalid: “My reply is in the negative. According to me, under no circumstances can a Muslim marriage be dissolved at the instance of the wife, except in accordance with the provisions of the Act.” (para 1)
“The only occasion when a wife can perhaps resort to repudiation without intervention of Court is while pronouncing Talak-i-Tafweez, which is a divorce effected by the wife on the strength of a delegation toy the husband contingent on the happening of an event or subject to other reasonable conditions not opposed to the principles of Muslim Law.” (para 12)
Since Mughal times a provision known as haq talaq ba tafweez or tafweez-e-talaq has been recognized by Muslim law. This means a delegated right of divorce vested in the wife which the wife can exercise herself to end the marriage without reference to the husband’s wishes.
To a large extent, in substance, it places the wife on an equal footing with thehusband in the matter of divorce. Thus either party can at will end an unwanted union.
“‘Faskh’ means dissolution and it is not a ground on which marriage between a Muslim woman and man can be dissolved. To repudiate the marriage by ‘Faskh’ without the intervention of a Court is opposed to the law of the land. It was to prevent such abuses that the Act has been enacted. If without intervention of Courts, marriage can be dissolved by the unilateral repudiation by the wife calamitous results will follow. There have been instances in the past where unscrupulous fathers– in- law or other near relatives of the wife resorted to ‘free advice’ from ‘agreeable man’ learned in theology to get rid of recalcitrant or poor sons-in- law but loving husbands”. (para 17)
2) Whether the advice given by D. W. I protected the accused in that they acted in good faith and bona fide provided that the repudiation by Faskh did not affect a legal dissolution?
Judge V. Khalid: D. W. 1 (K. M. Moideen Kunhi, well-versed in Islamic theology) has exhibited ignorance of the law of the land. If the law of the land can be defeated by gratuitous advice from such ‘learned men’, that will be bringing down the authority of law. The law of the land binds the commoner and the divine alike. (para 24)
“If all unsuccessful wives before Courts can seek shelter under an advice given by a ‘learned man’ and violate the provisions of law and disobey the decrees of Courts, we will be bringing down the authority of law and dignity of Courts. I have therefore no hesitation in holding that the repudiation of marriage by Faskh by the first respondent has no legal sanction and in spite of the alleged Faskh, the marriage between P. W. 2 (the appellant) and the first respondent continued.” (para 17)
It was held that a Muslim woman cannot repudiate her marriage outside the provisions of the Dissolution of Muslim Marriage Act 1939. The repudiation of marriage by Faskh, by the first respondent has no legal sanction and the marriage between the appellant and the first respondent continued.
Thus, both the respondents were held to be guilty. The first accused was guilty for the offence under Section 494. Indian Penal Code and the second accused is guilty for the offence under Section 494 read with Section 109, I. P. C.