Case – Saiyid Rashid Ahmad v. Mt. Anisa Khatun, 1932
Fact – The appellants are plaintiffs in the suit, which was instituted on 28th June 1922, and are a brother and sister of Ghiyas Uddin, and, along with respondents 10 to 12, who were impleaded as pro forma defendants, would be heirs to Ghiyas Uddin according to Mahomedan law, if respondents 1 to 6, are unable to establish their claim to be the widow and legitimate children of Ghiyas Uddin.
The appellants’ case was that on 13th September 1905, Ghiyas Uddin pronounced the triple talak of divorce in the presence of witnesses, though in the absence of the wife, and that the latter received Rs. 1,000 in payment of her dower on the same day, for which a registered receipt is produced, there was also produced a talaknama, or deed of divorce, dated 17th September 1905, which narrates the divorce, and which is alleged to have been given to Anis Fatima.
The respondents denied the fact of the divorce, and, in any event, they challenged its validity and effect for reasons which will be referred to later. They maintained that the payment of Rs.1,000 was a payment of prompt dower, and that the deed of divorce was not genuine, in that it was not written or signed by Ghiyas Uddin.
The Subordinate Judge held that Ghiyas Uddin irrevocably divorced Anis Fatima, and that she was therefore not his wife at the date of his death in 1920, and also that respondents 2 to 6, who were admittedly their offspring, but all born after the date of divorce, were not legitimate. The High Court came to the contrary conclusion on the ground that the divorce was fictitious and inoperative because it was a mock ceremony performed by Ghiyas Uddin to satisfy his father, but without any intention on his part that it should be real or effective.
Issue – Whether Anis Fatima was legally married wife of Ghiyas Uddin at the time of Ghiyas Uddin’s death in 1920?
Contentions and Judgement:
A talak bain, while it always operates as an immediate and complete dissolution of the marriage bond, differs as to one of its ulterior effects according to the form in which it is pronounced. A talak bain may be effected by words addressed to the wife clearly indicating an intention to dissolve the marriage either:
- once, followed by abstinence from sexual intercourse, for the period called the iddat; or
- three times during successive intervals of purity, i.e., between successive menstruations, no intercourse taking place during any of the three intervals, or
- three times at shorter intervals, or even in immediate succession; or,
- once, by words showing a clear intention that the divorce shall immediately become irrevocable.
The first named of the above methods is called ahsan (best), the second hasan (good), the third and fourth are said to be bidaat (sinful), but are, nevertheless, regarded by Sunni lawyers as legally valid.
- In the present case the words of divorce addressed to the wife, though she was not present, were repeated three times by Ghiyas Uddin as follows: “I divorce Anisa Khatun for ever and render her haram for me” which clearly showed an intention to dissolve the marriage.
- There can be no doubt that the method adopted was the fourth above described, and this is confirmed by the deed of divorce, which states that the three divorces were given “in the abominable form,” i.e. bidaat. The learned Judges of the High Court have erred in treating the divorce as in the ahsan form, instead of the bidaat form.
- The validity and effectiveness of the divorce would not be affected by Ghiyas Uddin’s mental intention that it should not be a genuine divorce, as such a view is contrary to all authority. A talak actually pronounced under compulsion or in jest is valid and effective.
- While admitting that upon divorce by the triple talak, Ghiyas Uddin could not lawfully remarry Anis Fatima until she had married another and the latter had divorced her or died.
- The legal bar to remarriage created by the divorce in the present case would equally prevent the raising of the presumption. If the respondents had proved the removal of that bar by proving the marriage of Anisa Fatima to another after the divorce and the death of the latter or his divorce of her prior to the birth of the children and their acknowledgment as legitimate, the respondents might then have had the benefit of the presumption but not otherwise.
- Their Lordships are therefore of opinion that the appeal should be allowed, that the decree of the High Court should be reversed, and that the decree of the Subordinate Judge should be restored.
