Gauhati High Court
Page No.# 1/2 vs The Union Of India And 4 Ors on 24 July, 2025
Page No.# 1/20
GAHC010195352021
2025:GAU-AS:9529
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6368/2021
FIRDUJA BEGUM
W/O MD. MANIRUL ALI
D/O MOHAMMED ALI,
RESIDENT OF VILLAGE BHASANIGAON, PO LAKHIGANJ, PS BILASIPARA,
DIST DHUBRI ASSAM 783345
VERSUS
THE UNION OF INDIA AND 4 ORS
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF INDIA,
MINISTRY OF HOME AFFAIRS, NEW DELHI 110001
2:THE DIRECTOR GENERAL
CENTRAL RESERVE POLICE FORCE
INDIA
CGO COMPLEX
NEW DELHI 110001
3:THE COMMANDANT
32 BN. CRPF.
LOKTAK
CHURACHANPUR
MANIPUR
795124
4:MD. MANIRUL ALI
S/O TAZEM ALI
RESIDENT OF VILLAGE PAROURA GAON
PO SASHAR GAON. PS FAKIRAGRAM
DIST KOKRAJHAR
ASSAM
Page No.# 2/20
783345
5:MRS. SURMILA BEGUM
W/O MD. MONIRUL ISLAM
RESIDENT OF VILLAGE PAROURA GAON
PO SASHAR GAON. PS FAKIRAGRAM
DIST KOKRAJHAR
ASSAM
78334
Advocate for the Petitioner : MD J ALOM, H M ALI,MR. M ISLAM,MS RUKMINI BARUA,MS
PADMINI BARUA
Advocate for the Respondent : ASSTT.S.G.I., MR A K DAS (R-4,5),MR. M HUSSAIN (R-4,5),MR.
K GOGOI (R-1,2,3)
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
JUDGMENT & ORDER (Oral)
Date: 24.07.2025
(N. Unni Krishnan Nair. J)
Heard Mr. M. Islam, learned counsel for the petitioner. Also heard Mr. K. Gogoi,
learned CGC appearing for the respondent nos. 1 to 3 and Mr. M. Hussain, learned
counsel appearing for the respondent nos. 4 & 5.
2. The petitioner, by way of instituting the present proceeding, has prayed for the
following reliefs: –
(i) a writ in the nature of Certiorari directing the respondent authorities to set
aside and quash the impugned letter/order dated 22.02.2020 (Annexure-1) as the
same is in gross violation of the principes of natural justice and de hors the rights of
the petitioner, and/or
(ii) a writ in the nature of Mandamus directing the respondent authorities to
declare that the Talak-i-Bian (Affidavit) by which the petitioner was purportedly
Page No.# 3/20given Talak by the respondent No. 4 is null and void and has no force in law, and/or
(iii) also a writ in the nature of Mandamus directing the respondent
authorities to declare that the second marriage contracted by the petitioner’s
husband with the respondent No. 5, Mrs. Surmila Begum is violative of the rule-15 of
the CRPF Rules of 1955, and the same is to be declared as null and void, and/or
(iv) further a writ in the nature of Mandamus directing the respondent
authorities to incorporate/reinstate the name of the petitioner as
nominee/dependent holder of her respondent husband in the list of
nominee/dependent holders in the service book of the petitioner’s husband, i.e. the
respondent no. 4 by removing the name of the respondent no. 5, Mrs. Sarmila Begum,
the second wife of the respondent no. 4 from the list of nominee/dependent holders of
the service book of the respondent no. 4.
3. The brief facts requisite for adjudication of the issue, arising in the present
proceeding is noticed as under: –
The petitioner’s marriage was solemnized with the respondent no. 4 on
11.10.1998 and the said marriage was duly registered in the office of the
Muslim Marriage & Divorces Registrar, Bilasipara, Dhubri, Assam. The
respondent no. 4, at the relevant point of time was working as a Head
Constable (GD) in the Central Reserve Police Force (in short CRPF). On the
solemnization of the marriage of the petitioner with the respondent no. 4, the
name of the petitioner came to be recorded as a nominee/dependent of the
respondent no. 4 in his service records. The petitioner and the respondent no. 4
were blessed with two female children and the younger one was a minor at the
time of filing of the present writ petition.
The petitioner, in the writ petition, has contended that since the year
2018 she has been forced to live separately from her husband due to the torture
meted out to her by her husband i.e., the respondent no. 4 on account of non-
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fulfillment of demand for payment of dowry by her husband and his family
members. The petitioner, accordingly, had instituted Miscellaneous Case No.
12/2008, invoking the provisions of Section 125 Cr.P.C., before the Court of the
learned Sub-Divisional Judicial Magistrate (M), Bilasipara, praying for
maintenance for herself and her younger daughter Masuda Begum. The learned
Trial Court, vide order dated 26.11.2008, allowed the prayer of the petitioner
herein, by directing the respondent no. 4 to provide maintenance at the rates
directed to both the petitioner as well as her minor daughter.
The petitioner, thereafter, filed an application being Misc. Case No.
206/2017, under Section 127 of the Cr.P.C., praying for enhancement of the
maintenance amount so directed to be paid to her by the learned Trial Court.
The learned Trial Court, upon consideration of the issue, was pleased vide order
dated 18.06.2019, to enhance the maintenance amount awarded to Rs. 8,000/-
per month in favour of the petitioner and to Rs. 4,000/- per month in favour of
her minor daughter.
The petitioner came to learn that her husband had married the
respondent no. 5 without divorcing her, and she also gathered information that
her name was deleted as a nominee/dependent of the respondent no. 4 in his
service book/records and the name of the mother of her husband was
incorporated therein, as his nominee. It is further projected that after the
marriage of her husband with the respondent no. 5, the respondent no. 4 was
taking steps for incorporating the respondent no. 5 as his nominee in his service
records. Being aggrieved, the petitioner submitted a representation before the
Commandant, 32 Bn., CRPF, Loktak, Churachandpur, Manipur on 12.02.2018,
praying for re-incorporation of her name as a nominee/dependent of the
respondent no. 4 in his service book. The said representation was followed by
further representations dated 12.02.2018 and 20.09.2018.
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In response to the representations submitted by the petitioner, the
authorities of the CRPF informed her vide a communication dated 13.10.2018,
that a communication has already been issued to the respondent no. 4, calling
for his explanation in the matter and also for submission of the Certificate of
Talaknama. It was further projected in the said communication that an enquiry
would be conducted by the authorities in the matter and, on completion of
which, the result thereof would be communicated to the petitioner, herein.
It is further projected in the writ petition that vide the communication
dated 22.02.2020, issued by the office of the Commandant, 32 Bn., CRPF,
Loktak, Churachandpur, Manipur, the petitioner was informed that on an enquiry
made into the grievance expressed by her and an explanation in this connection
being obtained from the respondent no. 4; and he having submitted his
explanation along with a TALAQ-I-BAIN in writing, issued by Mr. Fazlur Rahman,
Notary, District Dhubri, Dhubri, Assam along with a Marriage Certificate issued
by the Marriages and Divorce, Registrar, Bilasipara, pertaining to the marriage of
the respondent no. 4 with the respondent no. 5, the said documents on being
considered and divorce being effected, the issue with regard to the marriage of
the respondent no. 4 with the respondent no. 5, was closed with a warning to
the respondent no. 4.
Being aggrieved, the petitioner has instituted the present proceeding.
4. Mr. M. Islam, learned counsel for the petitioner has submitted that the purported
divorce in the form of Talaq-i-Bain, executed by the respondent no. 4 before the
Notary, Dhubri District, Dhubri on 21.06.2013 is clearly not sustainable. Mr. Islam has
submitted that the divorce so effected vide the said Notarized document dated
21.06.2013, was never brought to the knowledge of the petitioner herein. Mr. Islam by
drawing the attention of this Court, to the proceeding of Misc. Case No. 206/2017 has
submitted that the fact that the respondent no. 4 had divorced the petitioner herein,
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on 21.06.2013 was not brought on record therein. In the objections filed by the
respondent no. 4 in the said proceeding, there is no reference to the purported
divorce so stated to have been effected on 21.06.2013 by him. Mr. Islam has further
submitted that the respondent no. 4 herein, had also not disclosed about the
execution of the said document, divorcing the petitioner on 21.06.2013 even in the
proceeding of G. R. Case No. 68/2008, instituted basing on the FIR filed by the
petitioner against the respondent no. 4 and his family members. Mr. Islam has further
submitted that the affidavit filed by the respondent no. 4 in the matter, would also go
to reveal that the said notarized document pronouncing divorce by the respondent no.
4 at the petitioner herein, was also not submitted before his employer at any point of
time, prior to the year 2019.
5. Mr. Islam, learned counsel for the petitioner has submitted that the authorities of
the CRPF had erred in accepting the explanation submitted by the respondent no. 4 on
the basis of the purported Talaq-i-Bain/Divorce declaration made by the Notary public.
Mr. Islam has further submitted that the respondent authorities also miserably failed to
ascertain the veracity of the contention of the respondent no. 4 that the Talaq-i-
Bain/Divorce by way of declaration by Notary public was handed over to the petitioner.
Mr. Islam by referring to a OM dated 10.10.2024, issued by the Govt. of India, Ministry
of Law and Justice, Department of Legal Affairs (Notary Cell) has submitted that in
terms of the provision of the Notaries Act, 1952 and the Notaries Rules, 1956, the
execution of Marriage/Divorce affidavit is not the function of a Notary. It was further
projected by the learned counsel for the petitioner that the provisions of the Act of
1952 and the Rules of 1956 do not authorize any Notary to notarize an affidavit of
marriage or divorce and the Notary is also not competent to notarize a decree of
divorce. Mr. Islam, learned counsel for the petitioner, accordingly, submits that the
purported divorce by way of declaration before the Notary public, relied upon by the
respondent no. 4 herein, would have no consequence and could not have been relied
upon by the respondent authorities for the purpose of rejecting the prayer of the
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petitioner for incorporation of her name as nominee/dependent of the respondent no.
4 in his service records.
6. Mr. Islam, learned counsel for the petitioner, in support of his submissions has
relied upon the decisions of the Division Bench of this Court in the cases of (1) Must.
Rukia Khatun Vs Abdul Khalique Laskar, reported in (1981) 1 GLR 375, (2)
Zeenat Fatema Rashid Vs Md. Iqbal Anwar, reported in (1993) 1 GLR Supp 85
and the decision of the Hon’ble Supreme Court in the case of (3) Shamim Ara Vs
State of U.P. and Another, reported in (2002) 7 SCC 518.
7. In the above premises, Mr. Islam, learned counsel for the petitioner has
submitted that the order dated 22.02.2020, issued by the CRPF authorities, rejecting
the claim of the petitioner for re-incorporation of her name in the service record of the
respondent no. 4 as his nominee/dependent along with the Talaq-i-Bian, executed
before the Notary public by the respondent no. 4 as well as the second marriage
contracted by the respondent no. 4 with the respondent no. 5 are required to be set
aside and declared to be null and void with a further direction to the respondent
authorities to incorporate the name of the petitioner as a nominee/dependent of the
respondent no. 4 herein, in his service record.
8. Mr. K. Gogoi, learned CGC, appearing for the respondent nos. 1, 2 & 3 has
submitted that an enquiry was held in pursuance to the representation submitted by
the petitioner and a query being made in the matter to the respondent no. 4, he had
forwarded the Talaqnama and had contended that the same was also handed over to
the petitioner herein. He further submits that the respondent no. 4 had also
contended that he had married the respondent no. 5 after divorcing his first wife i.e.,
the petitioner, herein. Mr. Gogoi has further submitted that it is on the basis of the
enquiry and the clarification submitted in the matter by the respondent no. 4 that the
CRPF authorities had proceeded to issue the communication dated 22.02.2020.
Accordingly, he submits that the said communication would not call for an interference
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by this Court.
9. The learned counsel for the respondent nos. 4 & 5 has submitted that the
respondent no. 4 had duly divorced the petitioner herein, on 21.06.2013 and a copy of
the Talaqnama was also forwarded to the petitioner herein. The learned counsel has
submitted that the marriage between the respondent no. 4 & 5 was solemnized on
08.07.2013 i.e., after the respondent no. 4 had divorced the petitioner herein, and
accordingly, the allegation of the petitioner that during the subsistence of the marriage
between the petitioner and the respondent no. 4, the respondent no. 4 had married
the respondent no. 5 is clearly not sustainable. The learned counsel has submitted
that the petitioner after being divorced by the respondent no. 4, cannot be construed
to be a family member of the respondent no. 4 and accordingly, her claim for being
incorporated as a nominee/dependent in the service records of the respondent no. 4
would not be permissible in terms of the provisions of the CCS (Pension) Rules,
1972.The learned counsel for the respondent nos. 4 & 5 has further submitted that
the challenge made to the Talaqnama as well as the marriage conducted between the
respondent nos. 4 & 5, this Court, would not have any jurisdiction to entertain the said
issue. Accordingly, he submits that the writ petition mandates to be dismissed in
limine.
10. Rejoining his submissions, Mr. Islam, learned counsel for the petitioner has
submitted that the Talaqnama was never brought to the knowledge of the petitioner
and for the first time she had come to learn about the same only on perusal of the
communication issued by the CRPF authorities on 22.02.2020. Mr. Islam, learned
counsel has reiterated that the said Talaqnama was also not produced before the
authorities of the CRPF by the respondent no. 4 at any point of time before the
enquiry initiated in the matter in pursuance to the representations submitted by the
petitioner in the year 2018. Mr. Islam has further submitted that the contention of the
respondent no. 4 that the Talaqnama was also handed over to the petitioner herein, is
clearly perverse, inasmuch as, the same was never so forwarded to the petitioner
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herein, and the Talaqnama was for the first time brought on record by the respondent
no. 4 in the affidavit-in-opposition filed by him in the present proceeding. Mr. Islam
has further submitted that the respondent no. 4 in his affidavit has also not brought
on record any material to demonstrate that the said Talaqnama was handed over to
the petitioner at any point after the same was so executed before the Notary
concerned.
11. I have heard the learned counsels appearing for the parties and also perused the
materials available on record.
12. While it is not disputed that the petitioner herein was married to the respondent
no. 4 on 11.10.1998; and her name was also incorporated as a nominee in the service
records of the respondent no. 4. The validity of the deletion of the name of the
petitioner as a nominee/dependent from the service record of the respondent no. 4 is
the issue arising in the present proceeding. The respondent no. 4, in support of his
such action, has relied upon the Talaqnama executed on 21.06.2013 before the Notary
public, Dhubri District. While the reliance is placed on the said document stated to
have been so executed on 21.06.2013, there is no explanation on the part of the
respondent no. 4 as to why the same was not brought to the notice of the Trial Court
in the proceeding of Misc Case No. 206/2017; instituted by the petitioner herein,
praying for enhancement of the maintenance authorized to her earlier by invoking the
provisions of Section 127 Cr.P.C.
13. A perusal of the Judgment dated 18.06.2019, passed by the learned Trial Court
would go to reveal that the evidence in the matter was so recorded on 29.04.2019
and 18.06.2019; and there is no reference in the evidences so adduced by the
respondent no. 4 of, he, having divorced the petitioner on 21.06.2013. Further, the
respondent no. 4 has also not brought on record the fact that he had divorced the
petitioner herein, in the proceeding of the G. R. Case No. 68/2008 before the Court of
the Sub-Divisional Judicial Magistrate (M) Bilasipara, which proceeding was so
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instituted basing on a FIR lodged by the petitioner under Section 498 (A) of the IPC. It
is also material to note that the respondent no. 4 herein had instituted a criminal
petition being Crl. Petn. No. 90/2020, before this Court, assailing the order dated
18.06.2018, passed by the Sub-Divisional Judicial Magistrate (M) Bilasipara in Misc.
Case No. 206/2017, enhancing the maintenance receivable by the petitioner herein,
along with the order passed in Criminal Revision Petition No. 7/2019, by the Addl.
District & Sessions Judge, Bilasipara vide order dated 20.11.2019. In the said criminal
petition also, the respondent no. 4 had not made any mention about the divorce given
by him to the petitioner herein. The said aspect of the matter pertaining to the
execution of the Talaqnama on 21.06.2013 had surfaced for the first time when a
notice in the enquiry initiated by the CRPF authorities was issued to the respondent
no. 4, basing on the representation submitted by the petitioner in the matter for re-
incorporation of her name in the service records of the respondent no. 4.
14. The Talaq-in-bain in writing was executed before a Notary Public. It is a settled
position of law that a Notary public not being declared as a marriage officer would not
be entitled to notarize divorce decrees and the said position emanating from the
provisions of the Notaries Act 1952 was clarified vide the OM dated 10.10.2024. The
OM dated 10.10.2024 being clarificatory in nature, the same would have retrospective
effect and accordingly, the said Talaqnama, purportedly executed by the respondent
no. 4 before the Notary public, in the considered view of this Court, for the purpose of
adjudicating the issue arising in the present proceeding, would not mandate a
consideration.
15. The respondent no. 4 had due opportunity to get the validity of the Talaqnama
executed by him in the proceedings as indicated herein above, however, he had not
referred to such Talaqnama in any of the said proceedings.The said facts as coming to
the notice of this Court, gives rise to a doubt as to the execution of the said
Talaqnama on 21.06.2013 by the respondent no. 4, herein, and accordingly, the said
Talaqnama would not mandate a consideration while examining the prayer of the
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petitioner for re-incorporation of her name in the service records of the respondent
no. 4.
16. A perusal of the Talaqnama, purportedly, executed by the respondent no. 4 on
21.06.2013, would go to reveal that he had vide the same by uttering three divorces
consequently at the same time, had contended to have divorced the writ petitioner.
The validity of the Triple Talaq has received judicial consideration both by this Court as
well as by the Hon’ble Supreme Court. The Division Bench of this Court, in its decision
in the case of Must. Rukia Khatun (supra) vide order dated 09.07.1979 had after
noticing the various provisions governing the matter, held that the condition precedent
required to be complied with for giving a Talaq by a Muslim man to his wife, he must
choose an Arbiter from his side and the wife an Arbiter from her side and the Arbiters
must attempt at reconciliation with a time gap so that the patience of the parties may
cool down and reconciliation be possible. If ultimately, the reconciliation is not
possible, the husband will be entitled to give Talaq. It was further held that the Talaq
must be for a good cause and must not be mere desire, sweet whim and caprise of
the husband and that it must not be a secret. In the case on hand, the steps as set
out by this Court in the case of Must. Rukia Khatun (supra) was not demonstrated
by the respondent no. 4 to have been complied with.
17. The Division Bench of this Court, in the case of Zeenat Fatema (supra) vide
its judgment dated 05.05.1993, had drawn the following conclusions: –
“7. We are not inclined to accept the submission made by Mr. Barua. We approach the matter
as follows. Under the Quran, the marriage slate is to be maintained as far as possible and
there should be conciliation before divorce (see not 254 of vol 1 of Holy Quran by A. Yusuf
Ali). Therefore, the Quran discourages divorce and it permits only in extreme cases after
pre-divorce conference. Therefore, a Mahomedan husband cannot divorce his wife at his
whim and caprice. The question then is. Whether, if divorce by talak is made arbitrarily, it
should be treated as spiritual offence only? Under the Mahomedan Law, marriage though
regarded as a civil contract between a man and a woman, they become husband and wife
Page No.# 12/20after solemnization of the marriage and their respective rights and obligations are regulated
by the rules under relevant law. This being the position, marriage is the basis for social
organisation and foundation of legal rights and obligations. The modem concept of divorce is
also that the matrimonial status should be maintained as far as possible. Under Section 7 of
the Family Court Act, 1984, cases relating to matrimonial status of any person are within the
jurisdiction of the Family Court. The Family Court aims at conciliation and persuasion of
parties to arrive at a settlement. For these reasons, if a Mahomedan husband divorces his
wife at his whim and caprice, it would not only be a spiritual offence but it would also affect
the divorce. In the above view of the matter, a Mahomedan husband cannot. divorce his wife
at his whim or caprice, that is, divorce must be for a reasonable cause, and it must be
preceded by a pre-divorce conference to arrive at a settlement. Therefore, we are in
agreement with the decision of this Court, and we respectfully arc unable to agree with the
view taken by the other High Courts that divorce can be made at whim and caprice of the
husband. The decisions of this Court were made by the Single Judge in the year 1978 and by
the Division Bench in the year 1979, before 14/15 years ago. Therefore, the question of
unsettling the settled position of law does not arise.
10. We respectfully submit that we are unable to agree with the decisions in the above
referred cases for the following reasons. Written statement is a pleading. Pleading is one
thing and proof is another. Pleading is formal allegations by the parties of their respective
claims and defences to provide notice of what is to be expected at trial. Proof is
establishment of a fact by evidence or matters before the Court or legal tribunal. Where the
parties are in dispute as regards a material fact, an averment in the pleading does not
constitute evidence, as what is stated in the pleading is recital of past event which is
required to be proved. Under the Evidence Act, if a material fact pleaded is not proved, it
follows that the Court considers or believes that the fact does not exist. Therefore averment
in the pleading cannot be used in favour of the maker. This being the position, statement
made by the husband in his pleading or deposition that he has divorced his wife is recital of
past event, and, if talak pleaded is not proved such statement shall be of no consequence. In
that view of matter, if statement made by the husband that he had divorced his wife in his
pleading or deposition is considered as an acknowledgement of divorce by talak, it will be
against the policy of law, and it would also amount to furnishing or providing evidence of
talak, which is against the rule of pleading and proof. That apart, in view of our conclusion
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above mat divorce must be for a reasonable cause and it must be preceded by a pre-divorce
conference, if the statement made orally in evidence or in the written statement that the
husband had divorced his wife in a proceeding under section 125, CrPC, will be a valid talak
from the date of making statement cannot be sustained as it would be contrary to our
conclusion. For the reasons stated above, the contention of Mr. Barua is rejected.”
18. The said two decisions of the Division Bench of this Court were considered with
approval by the Hon’ble Supreme Court in the case of Shamim Ara (supra). The
Hon’ble Supreme Court, in the said case had drawn the following conclusions: –
“15. The plea taken by Respondent 2 husband in his written statement may be renoticed.
Respondent 2 vaguely makes certain generalized accusations against the appellant wife and
states that ever since the marriage he found his wife to be sharp, shrewd and mischievous.
Accusing the wife of having brought disgrace to the family, Respondent 2 proceeds to state,
vide para 12 (translated into English) “The answering respondent, feeling fed up with all
such activities unbecoming of the petitioner wife, has divorced her on 11-7-1987.” The
particulars of the alleged talaq are not pleaded nor the circumstances under which and the
persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency
continued to prevail even during the trial and Respondent 2, except examining himself,
adduced no evidence in proof of talaq said to have been given by him on 11-7-1987. There are
no reasons substantiated in justification of talaq and no plea or bproof that any effort at
reconciliation preceded the talaq.
16. We are also of the opinion that the talag to be effective has to he pronounced. The
term “pronounce” means to proclaim, to utter formally, to utter rhetorically, to declare, to
utter, to articulate (see Chambers 20th Century Dictionary, New Edition, p. 1030). There is no
proof of talaq having taken place on 11-7-1987. What the High Court has upheld as talaq is
the e plea taken in the written statement and its communication to the wife by delivering a
copy of the written statement on 5-12-1990. We are very clear in our mind that a mere plea
taken in the written statement of a divorce having been pronounced sometime in the past
cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the
written statement to the wife. Respondent 2 ought to have adduced evidence and proved the
Page No.# 14/20d pronouncement of talaq on 11-7-1987 and if he failed in proving the plea raised in the
written statement, the plea ought to have been treated as failed. We do not agree with the
view propounded in the decided cases referred to by Mulla and Dr Tahir Mahmood in their
respective commentaries, wherein a mere plea of previous talaq taken in the written
statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end
the e marital relationship with effect from the date of filing of the written statement. A plea
of previous divorce taken in the written statement cannot at all be treated as pronouncement
of talaq by the husband on the wife on the date of filing of the written statement in the Court
followed by delivery of a copy thereof to the wife. So also the affidavit dated 31-8-1988, filed
in some previous judicial proceedings not inter partes, containing a self-serving statement of
Respondent 2, could not have been read in evidence as relevant and of any value.
17. For the foregoing reasons, the appeal is allowed. Neither the marriage between the
parties stands dissolved on 5-12-1990 nor does the liability of Respondent 2 to pay
maintenance comes to an end on that day. Respondent 2 shall continue to remain liable for
payment of maintenance until the 9 obligation comes to an end in accordance with law. The
costs in this appeal shall he borne by Respondent 2.”
19. The Hon’ble Supreme Court, in the case of Shayara Bano Vs. Union of India
& Ors., reported in (2007) 9 SCC 1, had examined the issue of pronouncement of
Triple Talaq and had therein, approved its decision in the case of Shamim Ara
(supra) to the effect that Triple Talaq lacks legal sanction. It further held that
Shamim Ara (supra) being a law laid down under the provisions of Article 141 of
the Constitution of India, it is the law that is applicable in the country. The Hon’ble
Supreme Court, in the said decision in Paragraph Nos. 13, 15, 18, 27 and 104
concluded as follows: –
“13. The above view has been endorsed by various High Courts, finally culminating in
Shamim Ara by this Court which has since been taken as the law for banning Triple Talaq.
Interestingly, prior to Shamim Ara, Krishna Iyer, J. in Fuzlunbi v. K. Khader Valis, while in a
three-Judge Bench in this Court, made a very poignant observation on the erroneous
approach of Batchelor, J. in Sarabai v. Rabiabai on the famous comment “good in law, though
Page No.# 15/20bad in theology”. To quote: (Fuzlunbi cases, SCC p. 136, para 20)
15. There is also a fruitful reference to two judgments of the Kerala High Court one of
Krishna Iyer, J. in A. Yousuf Rawther v. Sowrammal and the other of V. Khalid, J. in Mohd.
Haneefa v. Pathummal Beevil. No doubt, b Sowramma was not a case on Triple Talaq,
however, the issue has been discussed in the judgment in paras 7 & 8 which have also been
quoted in Shamim Aral: (Sowramma case, SCC OnLine Ker)
7. … The view that the Muslim husband enjoys an arbitrary, unilateral power to
inflict instant divorce does not accord with Islamic injunctions….
8. … It is a popular fallacy that a Muslim male enjoys, under the Quranic law,
unbridled authority to liquidate the marriage. “The whole Quran expressly forbids a
man to seek pretexts for divorcing his wife, so long as she remains faithful and
obedient to him, “if they (namely, women) obey you, then do not seek a way against
them”.” (Quran IV:34). The Islamic law gives to the man primarily the faculty of
dissolving the marriage, if the wife, by her indocility or her bad character, renders
the married life unhappy; but in the absence of serious reasons, no man can justify a
divorce, either in the eye of religion or the law. If he abandons his wife or puts her
away in simple caprice, he draws upon himself the divine anger, for the curse of God,
said the Prophet, rests on him who repudiates his wife capriciously’…. Commentators
on the Quran have rightly observed and this tallies with the law now administered in
some Muslim countries like Iraq-that the husband must satisfy the court about the
reasons for divorce. However, Muslim Law, as applied in India, has taken a course
contrary to the spirit of what the Prophet or the Holy Quran laid down and the same
misconception vitiates the law dealing with the wife’s right to divorce….” (Shamim
Ara case, SCC pp. 524-25, para 12)(emphasis in original)
18. Shamim Ara has since been understood by various High Courts across the country as
the law deprecating Triple Talaq as it is opposed to the tenets of the Holy Quran.
Consequently, Triple Talaq lacks the approval of Shariat.
27. Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and
Page No.# 16/20reiterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot
be good in Shariat and, in that sense, what is bad in theology is bad in law as well.
104. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any
attempt at reconciliation between the husband and wife by two arbiters from their families,
which is essential to save the marital tie, cannot ever take place. Also, as understood by the
Privy Council in Rashid Ahmad, such Triple Talaq is valid even if it is not for any reasonable
cause, which view of the law no longer holds good after Shamim Ara. This being the case, it
is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be
broken capriciously and whimsically by a Muslim man without any attempt at reconciliation
so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental
right contained under Article 14 of the Constitution of India. In our opinion, therefore, the
1937 Act, insofar as it seeks to recognise and enforce Triple Talaq, is within the meaning of
the expression “laws in force” in Article 13(1) and must be struck down as being void to the
extent that it recognises and enforces Triple Talaq. Since we have declared Section 2 of the
1937 Act to be void to the extent indicated above on the narrower ground of it being
manifestly arbitrary, we do not find the need to go into the ground of discrimination in these
cases, as was argued by the learned Attorney General and those supporting him.”
20. A perusal of the decisions rendered by this Court as well as the Hon’ble Supreme
Court would go to reveal that the pronouncement of Triple Talaq was deprecated and
had held that Triple Talaq being instant and irrevocable, it is obvious that any attempts
at reconciliation between the husband and wife by two arbiters from their families,
which is essential to save the marital tie, cannot ever take place.
21. The Hon’ble Supreme Court, in the case of Shayara Bano held that the view
that talaq is valid even if it is not for any reasonable cause to be no longer to be a
good law after its decision in the case of Shamim Ara (supra). Triple Talaq was held
to be manifestly arbitrary, in the sense that the marital tie can be broken capriciously
and whimsically by Muslim man without any attempt at reconciliation to save it. The
Triple Talaq was therefore, held to be violative of the fundamental rights contained
Page No.# 17/20
under Article 14 of the Constitution of India. Accordingly, as of 21.06.2013, when the
respondent no. 4 had pronounced the Triple Talaq towards divorcing the petitioner
herein, the decision rendered by the Hon’ble Supreme Court in the case of Shamim
Ara (supra) held the field and accordingly, the said Talaq as pronounced by the
husband of the petitioner even ignored in the manner it was done, would not be
sustainable.
22. At this stage, it is also required to be noted that the communication of the said
Talaq to the petitioner herein, has been disputed by her. Further, as noticed herein
above, the same was so done before a Notary Public, who was also not conferred with
the power to register any such divorce.
23. In view of the above discussions and in the light of the decisions of this Court as
well as of the Hon’ble Supreme Court as noticed herein above, for the purpose of the
issue arising in the present proceeding, this Court is of the considered view that the
Talaq pronounced by the respondent no. 4, on 21.06.2013, would not be a material
for consideration by the authorities of the Central Reserve Police Force for considering
the prayer of the petitioner for incorporation of her name in the service book records
of her husband i.e. the respondent no. 4, as his dependant/nominee.
24. Having drawn the above conclusions, the order dated 22.02.2020, passed by the
CRPF authorities, rejecting the prayer of the petitioner for re-incorporation of her
name in the service records of the respondent no. 4 is now being examined.
The communication dated 22.02.2020 being relevant to the issue arising in the
present proceeding, the same is extracted herein below: –
"No. G.II-1/2018-32-EC-II Dated: 22/02/2020
To,
Smt. Firduza Begum.
D/o. Mohammed Ali.
P/O-Lakhi Ganj.
P/S-Bilasipara,
Dist-Dhubri (Assam)
Page No.# 18/20
PIN-783345.
Subject: APPLICATION FOR REMAINED NAME AS A NOMINEE.
Please refer to your application dated-07/01/2020.
Vide your letter under reference this office has been requested to intimate further
outcome of subject case. In this regard, it is submitted that the matter has been
enquired and explanation to his regard has been obtained from No. 961240301
HC/GC Monirul Ali where said individual submitted his explanation along with TALAQ-
I-BAIN IN WRITING issued by FAZLUR RAHMAN, NOTARY DHUBRI DISTRICT, DHUBRI
ASSAM, INDIA REGD-NO-DBI-10, also submitted Marriage Certificate issued by
MARRIAGE & DIVORCES REGISTRAR BILASIPARA. Said documents submitted has been
considered and on the basis of above evidence of this divorce and marriage with
Surmila Begum case has been closed with a warning to Monirul Ali.
No further action requires from this office.
(Bhaskar Bhattacharyya) D/C
For Commandant-32 Bn., CRPF.”
25. A perusal of the said communication dated 22.02.2020, would go to reveal that
the claim of the petitioner for re-incorporation of her name in the service records of
the respondent no. 4 was rejected only on the explanation submitted by the
respondent no. 4. The respondent no. 4 while submitting his explanation had also
brought on record the Talaqnama executed by him on 21.06.2023, with a further
contention that the same was handed over to the petitioner herein.
26. As already noticed herein above, the said Talaqnama, for the purpose of
determining the right of the petitioner for re-incorporation of her name as a
nominee/dependent in the service records of the respondent no. 4, being not
permissible to be so considered, in view of the fact that the same has not been
executed in the manner required and/or the same not having been proved to have
been so executed, the Commandant-32 Bn., CRPF had exceeded his jurisdiction in
placing reliance on the said Talaqnama, purportedly, executed by the respondent no. 4
on 21.06.2013. In view of the said position, the said communication dated 22.02.2020
Page No.# 19/20
cannot be sustained and the same would call for an interference by this Court.
27. Accordingly, in view of the above discussions, the communication dated
22.02.2020, issued by the Commandant-32 Battalion, Central Reserve Police Force,
rejecting the prayer of the petitioner for reincorporation of her name as
dependant/nominee of the respondent no. 4 in his service records, stands set aside.
28. Having drawn the above conclusions, this Court is of the view that as on date,
the status of the petitioner herein, as the wife of the respondent no. 4 has not been
altered and accordingly, her right to be construed as a nominee/dependent of the
respondent no. 4 and incorporation of her name in the service records of the
respondent no. 4 as a nominee/dependent, cannot be denied to her. Accordingly, this
Court is of the considered view that the authorities of the CRPF are required to re-
incorporate the name of the petitioner herein, in the service records of the respondent
no. 4 as his nominee/dependent. Consequently, a direction is issued to the
Commandant-32 Bn., CRPF to re-incorporate the name of the petitioner herein, in the
service records of the respondent no. 4 forthwith as a nominee/dependant and extend
to her all consequential benefits flowing from such re-incorporation as a
nominee/dependent in the service records of the respondent no. 4.
29. The petitioner has also prayed for an interference with the marriage solemnized
between the respondent no. 4 and respondent no. 5. This Court is of the considered
view that it is not permissible for this Court, in the present proceedings, to consider
the said prayer. Accordingly, the respondent no. 4 is given liberty to establish that the
Talaqnama as executed by him on 21.06.2013 to be valid by initiating appropriate
proceedings in accordance with law.
30. Basing on the decisions as would be now rendered in the proceeding that would
be initiated by the respondent no. 4 for establishing the validity of the Talaqnama
executed by him in the matter, the marriage of the respondent no. 4 solemnized with
Page No.# 20/20
the respondent no. 5 would be so considered. However, for the issues arising in the
present proceeding, this Court, proceeds to reiterate that the Talaqnama executed by
the respondent no. 4 on 21.06.2013, having been held to be not sustainable, the
marriage between the petitioner and the respondent no. 4 cannot be held to have
been dissolved and the petitioner herein, continuous to carry the status of being the
wife of respondent no. 4 and accordingly, be entitled to all consequential benefits
flowing there from.
31. With the above observations and directions, the present writ petition stands
disposed of.
JUDGE
Comparing Assistant