Merely Pronouncing Talaak Thrice Does Not Absolve Husband From Responsibilities Such As Maintaining His Wife: J&K&L HC

The case before the court involved an estranged wife who had initially obtained a maintenance order in 2009, which was later challenged by the husband. Despite the trial court initially ruling in favor of the husband in 2018 by finding the marriage dissolved, subsequent courts ordered maintenance payments, which were upheld by the High Court.

In the specific case, the petitioner had presented a Talaknama (divorce deed) and claimed to have pronounced talaq trice. However, the High Court found these actions insufficient, emphasizing the lack of genuine reconciliation efforts by the husband.

A Bench of Justice Vinod Chatterji Koul noted the following observations from Mohammad Naseem Bhat v. Bilquees Akhter and another, (2012) 4 JKJ 318: "A husband to wriggle out of his obligations under marriage including one to maintain his wife, claiming to have divorced her has not merely to prove that he has pronounced Talaak or executed divorce deed to divorce his wife but has to compulsorily plead and prove: (i) that effort was made by the representatives of husband and wife to intervene, settle disputes and disagreements between the parties and that such effort for reasons not attributable to the husband did not bear any fruit. (ii) that he had a valid reason and genuine cause to pronounce divorce on his wife. (iii) that Talaak was pronounced in presence of two witnesses endued with justice. (iv) that Talaak was pronounced during the period of tuhr (between two menstrual cycles) without indulging in sexual intercourse with the divorcee during said tuhr."

According to the Court, for a Talaak pronouncement to be valid, several conditions must be met. These include pronouncing Talaak at specific intervals, in the presence of witnesses who are just and fair-minded. The role of these witnesses is crucial, as they are expected to intervene in the interest of justice, urging the spouses to reconcile and resolve their differences peacefully. The Court added, “It is only after the husband pleads and proves all the above ingredients that divorce-Talaak, would operate and marriage between the parties would stand dissolved so as to enable husband to escape obligations under the marriage contract, including one to maintain his wife. The Court in all such cases would give a hard look to the case projected by the husband and insist on strict proof.”

The Court referred to its 2012 ruling in Mohammad Naseem Bhat v/s Bilquees Akhter and another, which emphasized the procedural requirements for a valid divorce. These include sincere efforts by representatives of both spouses to settle disputes, demonstrating a genuine reason for divorce, and ensuring that Talaak is pronounced during a period of tuhr (purity between menstrual cycles), without sexual intercourse during that time.

The Court noted, “Petitioner has placed on record copy of Talaknama as Annexure A. penultimate paragraph thereof reveals that petitioner in order to put an end to the wedlock has made three pronouncements of Talak, thereby declaring that he has divorced her and relieved her out of the wedlock. According to petitioner, he has conveyed Talaknama to respondent. It may be made clear here that such a practice in law is deprecated.”

Justice Koul stressed that a husband seeking to evade maintenance obligations by claiming divorce must provide strict proof of fulfilling all these conditions. Mere pronouncement or a divorce deed is insufficient without meeting these procedural and substantive requirements.

The High Court upheld the lower courts' decisions, highlighting the necessity for husbands to demonstrate genuine adherence to Islamic divorce procedures to legally dissolve marriages and avoid maintenance obligations.

Cause Title: Fayaz Ahmad Wani v. Hameeda