Madras High Court: In civil revision petition filed against the order directing the husband to pay a sum of Rs.5 Lakhs as compensation for having inflicted domestic violence on his wife and a sum of Rs.25,000/- per month towards the maintenance of the minor child, G.R. Swaminathan, J. concluded that the husband failed to obtain a judicial declaration confirming the legal dissolution of his marriage with the wife, meaning their marriage remains valid. Although the husband, as a Muslim, has the right to marry again, he must face the consequences of his actions. The Court determined that entering into a second marriage likely inflicted significant emotional distress and pain on the wife, amounting to cruelty. As a result, the lower courts were justified in awarding her compensation of Rs. 5 lakhs.
Background:
The marriage between the parties was solemnised as per the Islamic rites and customs in 2010. A male child was born through the wedlock. The parties are doctors by profession. The wife filed Domestic Violence case under Sections 12(1) and (2), 18(a) and (b), 19(a), (b) and (c), 20(1)(d) and 22 of the Protection of Women from Domestic Violence Act, 2005. The Trial Court directed the husband to pay a sum of Rs.5 Lakhs as compensation for having inflicted domestic violence on his wife and a sum of Rs.25,000/- per month towards the maintenance of the minor child. A protection order was also granted. Aggrieved by the said order, the husband filed a criminal appeal before the Additional District and Sessions Judge, which was dismissed. Questioning the same, the present civil revision petition came to be filed under Article 227 of the Constitution of India.
Analysis and Decision:
The Court noted that the wife conceded that the husband sent two talaq notices to her. However, the husband claimed that the third Talaq notice was also sent, following which the Shariat Council of Tamil Nadu Thowheed Jamath granted divorce certificate on 29-11-2017. The husband also admitted having married again on 28-01-2018. Further, the wife asserted that her marriage with the husband was not dissolved and that the third Talaq notice was never received and that during the subsistence of their marriage, the husband married another woman.
The Court mentioned that the only question that calls for consideration is whether the courts below were justified in awarding compensation of Rs.5 lakhs to the wife.
The Court explained that as per the definition of the term “domestic violence” set out in Section 3 of the Act, 2005, any act or conduct of the husband which injures or causes harm, whether physical or mental to the wife shall constitute domestic violence. If a Hindu/Christian/Parsi/Jew husband contracts second marriage during the subsistence of the first marriage, it would constitute cruelty besides being an offence of bigamy.
Considering that whether the above law applies to Muslims, the Court answering in affirmative said that a Muslim male is legally entitled to contract as many as four marriages. For this legal right or liberty, there is only a limited hohfeldian jural correlative on the part of the wife. The wife cannot stop the husband from entering into a second marriage. However, she has the right to seek maintenance and refuse to be a part of the matrimonial household.
The Court stated that the claims surrounding the dissolution of the marriage must be carefully evaluated. It emphasized that without clear evidence of the third talaq notice being served, the marriage cannot be considered legally dissolved. The Court noted the ongoing assertion of the wife that their marriage remains valid, highlighting the importance of proper legal procedure in matters of talaq. The absence of substantiated proof regarding the third notice raises significant questions about the legitimacy of the husband’s claims.
The Court emphasised that the process of talaq requires strict adherence to established procedures. If the husband asserts that he has divorced his first wife by properly pronouncing talaq three times, but the wife disputes this, it raises the critical question of whether the marriage has been validly dissolved. This matter cannot be left to the husband’s unilateral decision, as that would effectively allow him to be the judge of his own case. Instead, the Court determined that the husband must seek a judicial declaration to confirm the valid dissolution of the marriage. Until such a declaration is obtained from the appropriate jurisdictional court, the marriage will be considered to still exist.
The Court noted that the burden of proof rests solely on the husband to demonstrate that he pronounced the talaq in accordance with legal requirements. It is his responsibility to approach the court and seek a declaration confirming the validity of the talaq. This step becomes essential only if the wife challenges the legitimacy of the talaq pronounced by him.
Coming to the facts, the Court noted that the wife detailed various forms of cruelty, including allegations of unnatural sexual acts. Despite undergoing cross-examination, she remained unshaken in her testimony. In contrast, the husband did not take the stand to defend himself or provide any evidence, failing to counter the serious allegations made against him.
After reviewing the certificate issued by the Shariat Council, the Court expressed shock at the revelation that the husband’s father served as one of the witnesses to the divorce. The Court remarked that having a father as a witness to his son’s pronouncement of talaq is comparable to a chameleon being the witness of the hedge, highlighting the inherent conflict of interest and questioning the validity of the proceedings.
The Court observed that the certificate issued by the Chief Kazi of the Shariat Council asserts that a Shariat judgment was delivered. However, the Court emphasized that only courts officially constituted by the State have the authority to deliver legally binding judgments. It reiterated that the Shariat Council functions as a private body and does not hold the status of a court.
The Court concluded that the husband did not secure any judicial declaration confirming the legal dissolution of his marriage with the wife, meaning that their marriage remains valid. While the husband, as a Muslim, has the right to enter into another marriage, he must also bear the consequences of his actions.
The Court held that the act of entering into a second marriage likely caused significant emotional distress and pain to the wife, constituting cruelty. Consequently, the lower courts were justified in awarding her compensation in the amount of Rs. 5 lakhs.
[M.A. Rafi Ahamed v. Vaseela Banu, 2024 SCC OnLine Mad 5991, decided on 25-10-2024]
Advocates who appeared in this case :
For Petitioner: Advocate K.C. Maniyarasu
For Respondent: Advocate D. Srinivasa Ragavan
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