Prayagraj: The Allahabad high court has observed that under ‘Mohammedan Law’, a divorce takes effect from the date a husband pronounces talaq and a subsequent court decree confirming it is merely declaratory in nature.Justice Madan Pal Singh clarified that such a court decree does not create a fresh divorce from the date of the judgment, but rather, it relates back to the original date of the talaq pronouncement by the husband. The court was hearing a plea filed by Humaira Riyaz, challenging a family court order rejecting her application under section 125 criminal procedure code (CrPC) seeking maintenance from her husband. The court allowed the wife’s petition and set aside the family court’s order to the extent that it denied maintenance to her. The matter is now remanded back to the family court to decide the wife’s claim of maintenance afresh on its merits. During the court proceedings, the wife’s plea was that her first husband had pronounced talaq on Feb 27, 2005 and a declaratory suit was subsequently filed and a decree was passed by civil court on Jan 8, 2013, which declared the 2005 talaq to be valid. According to wife’s counsel, “During the pendency of the declaratory suit, but after her iddat period, the wife solemnized her second marriage in May 2012 and her second husband had full knowledge of the earlier divorce. Hence, the second marriage was valid as per Mohammedan law.” “After some time of second marriage, when the second husband refused to take care of financial needs she filed an application under Section 125 CrPC seeking maintenance from her second husband,” argued the wife’s counsel.On the other hand, the counsel for the husband argued that the revisionist solemnized the second marriage without obtaining a valid divorce from her first husband. It was submitted that since the divorce decree was granted only in 2013, the alleged second marriage in 2012 was void under Mohammedan Law. The family court denied her claim primarily on the ground that her first marriage had not been legally dissolved as of the date of her second marriage, and hence the second marriage was void.Therefore, the present petition was filed before the high court.The HC in Mar 10 order observed, “It is further settled that where a husband pronounces talaq and subsequently approaches the court seeking a decree regarding the same, the decree passed by the court is ordinarily declaratory in nature, which merely recognizes or confirms the status of divorce that had already taken place,” the court clarified.The court, however, rejected the husband’s contentions as it noted that where a husband pronounces talaq and subsequently approaches the court for a decree, the decree merely confirms the status of the divorce that had already taken place.
