Mere Use Of 'Irrevocably' On Talaqnama Does Not Invalidate Talaq If Husband Made Subsequent Efforts For Reconciliation: Kerala High Court

The Kerala High Court recently dismissed an appeal filed by the former wife of a serving judicial officer seeking to invalidate the talaqnama served on her on the ground that it contained the word 'irrevocably'. A Division Bench of Justices A.K Jayasankaran Nambiar and Mohamed Nias C.P ruled that the pre-requisites for pronouncing a valid talaq were fulfilled in this case. It observed,"Had it not been for subsequent events that unfolded, we would have certainly held the pronouncement of talaq as illegal on this ground. However, we notice from the evidence before us that, even after the pronouncement of talaq, there were in fact, efforts at reconciliation, albeit unsuccessful, that were pursued on 18.05.2017, in which family members of either party participated. The conduct of the parties suggest that they never considered the talaq pronounced on 01.03.2017 as irrevocable from that date onwards."In this backdrop it was directed thus:"...notwithstanding the use of the word 'irrevocably' in the talaqnama, the respondent must be seen as having pronounced a talaq ahsan, that became irrevocable only on the expiry of the period of three lunar months immediately following the single pronouncement of the talaq."Factual Background:The appellant Sajani A had married the current District and Sessions Judge B Kalam Pasha in 2009.They resided together as husband and wife at various places where her husband was posted as a judicial officer. At the time of their marriage, the respondent was a widower with two children from his first marriage. The appellant submitted that their life together was cordial in nature. However, in September 2016, the respondent allegedly dropped her at her home and asked her not to return to their matrimonial home or contact him anymore without notice. Later she received a Talaqnama dated 01.03.2017, (mistakenly dated 2018) to which she preferred a reply denying the existence of circumstances that would permit a pronouncement of talaq against her.She later learned that the respondent had contracted another marriage with a younger girl.Therefore, she moved the Family Court seeking to declare the talaq void and invalid on the said grounds:(i) it was post-dated and the date was corrected by the respondent only subsequently through his letter dated 09.03.2017 and the said correction was not attested by any witness (ii) there was only a single pronouncement of talaq and it was made irrevocable thereby rendering it illegal and void going by the law.(iii) no valid grounds had been established by the respondent that would have enabled him to divorce her. She had also sought a consequential decree for restitution of conjugal rights before the Family Court.However, the trial court found the talaq pronounced by the respondent to be a valid one and the plea was thereby dismissed. Contentions Raised: The appellant through her Counsel Advocate M. Vanaja maintained her stand that the Talaqnama was not valid.Her primary contention was that the word 'irrevocably' in the talaqnama rendered the pronouncement of talaq illegal since it clearly evidenced the intention of the respondent that he was not ready to reconsider his decision during the period of three lunar months that were to follow. Advocate Babu Karukapadath appearing for the respondent pointed out that the sessions judge had pronounced a 'Talaq Ahsan' and the use of the word 'irrevocably' in it was only to alert the petitioner of the seriousness of the decision.He added that notwithstanding the pronouncement of talaq, he was ready and willing to revoke the talaq if the petitioner was willing to amicably resolve the issues between them, and this is evidenced by the reconciliatory talks that took place in the presence of mediators on 18.05.2017.Key Findings:While analysing the law governing talaq and maintenance, the Court recalled the landmark decision of Shayara Bano v. Union of India [(2017) 9 SCC 1].In the said judgment, what was found objectionable and illegal by the majority on the bench, as regards the practice of triple talaq, was its instant irrevocability that rendered the practice 'manifestly arbitrary'.The Court took the view that the feature of instant irrevocability takes in two independent features – instantaneousness and irrevocability - both of which contribute to making the practice legally odious.(1) Reconciliation Efforts:In the absence of a yardstick to measure the reasonableness of talaq, the established test for ruling out the vice of instantaneousness was to see whether there were genuine attempts at reconciliation between the husband and the wife, by two arbiters.Similarly, the Court also noted that the procedure prescribed for a valid talaq has an in-built component of introspection, that postpones the stage of irrevocability of the talaq to a period after three lunar months. In the instant case, there was no dispute that reconciliation efforts were pursued at the instance of two arbiters twice, both of which proved to...

Mere Use Of 'Irrevocably' On Talaqnama Does Not Invalidate Talaq If Husband Made Subsequent Efforts For Reconciliation: Kerala High Court

Hannah M Varghese

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