Shamim Ara V. State Of UP

Esha Rathi & Vidhi Basrani, Jindal Global Law School

Introduction

Shamim Ara and Abrar Ahmed were married according to Muslim Sharia Law. On behalf of herself and her two minor children, Shamim Ara filed an application complaining of desertion and cruelty but was not granted any maintenance on the ground that Abrar Ahmed had already divorced her; the divorce said to have been given was a triple-talaq.

Shamim Ara denied being divorced at any time, thus preferring a revision before the High Court. Since the triple-talaq was not given in Shamim Ara’s presence, nor was the same communicated to her, it was held that the communication would stand completed upon the filing of the written statement in the present case, therefore entitling her to claim maintenance until that date, whereafter the said entitlement shall cease.

The present case is an appeal by special leave, filed by Shamim Ara, concerning the High Court judgement. The issue arising is whether the appellant, Shamim Ara, can be said to have been divorced on account of the written statement being filed in these proceedings.

The Court rejected the opinions in the decided cases referred to by Mulla and Dr Tahir Mahmood in their respective commentaries. Firstly, the Court opined a liberal view of talaq ending the marital relationship between Muslim spouses and heavily loaded in favour of Muslim husbands has met with criticism and disapproval by eminent jurists as bad in law.

The Court also noted that none of the ancient holy books or scriptures of Muslims mentions in its text such a form of divorce as has been accepted by the High Court and the Family Court. Lastly, the Court based its opinion on the progressive interpretation of laws which seem to have taken the stage in today’s case laws.

Thus, the Court held that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past could not by itself be treated as effectuating talaq. A plea of the previous divorce taken in the written statement cannot at all be treated as a pronouncement of talaq.