Explain the facts of in Rashid Ahmad & Another Vs. Anisa Khatun
Here we will learn a new topic Explain the facts of in Rashid Ahmad & Another Vs. Anisa Khatun
Rashid Ahmad & Another.
Plaintiffs-Appellants.
Vs .
Anisha Khatun Alias Fatima and Others
Defendants-Respondents.
Reference A.I.R. 1935 P.C. 25; 1932 A.L.J. 344.
Subject
Whether among Sunni Mohammedans governed by the Hanafi Law, words of divorce addressed by name to absentee wife and repeated
thrice by husband constitute an immediate and effective divorce even though he may have pronounced them under compulsion or
in jest?
Facts of the Case
On 4th. April, 1920 Ghias Uddin died leaving considerable movable and immovable properties.
On 20th, June, 1922 Rasid Ahmad and his sister filed a suit against Anisa Khatun and her children from Ghiyas
Uddin allgeing themselves as the real brother and sister of the deceased.
In 1901 Anisa Khatun was first of all married with Manjoor Hussain who divorced her in early 1905. On 28th. August, she again married with Ghiyas Uddin who also divorced her on 13th. Sept., 1905. This divorce was given by tripple pronouncement of the word talak in the presence of witnesses but in the absence
of Anisa Khatun. She was paid her dower of Rs. 1,000/- for which she executed a receipt on the same day. On 17th Sept., 1905, someone executed a deed of talak that stated triple talak and gave it to Arisa Khatun.
In her written statement Anisa Khatun alleged that Talaknama is forged as it does not bear the signature of her deceased husband Ghiyas Uddin and the receipt of Rs. 1,000/-stands for the payment of Prompt dower. Decision of Subordinate Judge-
The Subordinate Judge held that the talak is proved and the deed of talak is genuine and defendants Nos. 2 to 6 are the offsprings of Ghiyas Uddin but since they were born after talak hence they are illegitimate. The suit of the plaintiffs, therefore, decreed.The defendants appealed to the High Court against the decision of the Subordinate Judge. The Allahabad High Court held that Ghiyas Uddin’s talak is fictitious and inoperative because Ghiyas Uddin pronounced it to satisfy his father, but he did not intend for it to be real or effective. High Court, therefore, allowed the appeal of the defendant and dismissed the suit of the plaintiffs.
The plaintiffs then appealed to the Privy Council.
Decision of Privy Council
The Privy Council observed that the Sunni Mohammedans in the present suit were governed by the Hanifi law. In such cases, Sir R.K. clearly explained the law of divorce. Wilson is that the divorce called Talak may be either irrevocable (Bain) or revocable (Raja). A talak bain always operates as an immediate and complete dissolution of the marriage bond, but it differs in one of its ulterior effects according to the form in which the husband pronounces it. The husband may effect a talak bain by addressing words to the wife that clearly indicate his intention to dissolve the marriage either (a) once, followed by abstinence from sexual intercourse, for the period called Iddat; or. (b) Three times during successive intervals of purity; or (c) Three times at shorter intervals or even an immediate succession; or (d) Once, by words showing a clear intention that the divorce shall immediately become irrevocable.
The scholars call the first named of the above methods Ahsan (best), they call the second Hasan (good), and they say the third and fourth are Biddat (Sinful), but Sunni regard them as legally valid. In this case Ghiyas Uddin said, ‘I divorce Anisa Khatun for ever and render her Haram for me. His intention was to dissolve the marriage fully and the method which he adopted was Biddat whereas High Court was wrong in treating it as Ahsan Form. In the Biddat Form, the divorce at once becomes irrevocable irrespective of Iddat. The husband does not need the presence of his wife when he pronounces the talak, though her right to alimony may continue until he informs her of the divorce.
After the above divorce Ghiyas Uddin could not re-marry Anis Fatima till she had married another person and obtained divorce form the letter or become his widow. In this case ban to re-marriage created by divorce prevents the raising of the presumption. In the present case the burden of proving that Anisa Fatima has actually remarried another person after divorce from Ghiyas Uddin and obtained divorce or that subsequently husband died before the birth of her children and their acknowledgment lies on the respondent which they had failed to prove. The appeal was, therefore, allowed with cost.
Principles of Law Laid Down
- Under Hanafi Law word divorce addressed by name to absentee wife and repeated thrice by husband operate an immediate and effective divorce even though he may have pronounced them under compulsion or in jest. They call such a form of divorce Biddat (Sinful).
- A husband cannot re-marry his wife divorced in Biddat form unless she re-marries other person and obtains divorce from him or becomes a widow.
- The husband’s acknowledgment of the wife’s offspring raises a presumption of marriage but is only a presumption of fact and not of law, which contrary proof can set aside as to the bar to the marriage.