Shamim Ara v State of U.P. (Supreme Court, 2002) — a talaq must be pronounced, for a reason, after an attempt at reconciliation

Every later development — Masroor Ahmed, Shayara Bano, the 2019 Act — stands on Shamim Ara. It is the case that told Indian courts to stop treating the husband's word as the divorce, and it did so in the setting where the point most often arises: a maintenance claim met with "but I divorced her".

Shamim Ara and Abrar Ahmed were married in 1968 under Muslim law; four sons were born. On 12 April 1979 she applied under s. 125 of the Code of Criminal Procedure, for herself and two minor sons, alleging desertion and cruelty. The husband's written statement of 5 December 1990 denied everything and, among additional pleas, said he had divorced her on 11 July 1987, that the parties had since ceased to be spouses, that he was protected by the 1986 Act, and that he had bought a house and given it to her in lieu of mahr. No particulars of the divorce were pleaded. In the witness box he said he had divorced her at 11 a.m. on 11 July 1987 before Mehboob and four or five neighbours — a triple talaq, a fact not stated in the written statement. The Family Court refused her maintenance on the footing that she was already divorced; the High Court held the divorce took effect only from the date of the written statement.

Whether a talaq had been effected at all — and, in particular, whether a plea of a past divorce in a written statement, unsupported by proof of the pronouncement, itself operates as a divorce.

Lahoti J. surveyed the High Court decisions and the Islamic texts and accepted the Gauhati High Court's statement of the law: "talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected". Talaq, to be effective, has to be pronounced — proclaimed, uttered formally — and proved. The Court rejected the view that a mere plea of a past talaq in a written statement, even if unsubstantiated, is itself a talaq operating from the date of filing: "a plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement". An affidavit filed in other proceedings, containing the husband's self-serving statement, was of no value. The appeal was allowed: "neither the marriage between the parties stands dissolved on 5.12.1990 nor does the liability of the respondent No. 2 to pay maintenance comes to an end on that day", and he remained liable until the obligation ended according to law.

1. A talaq is a formal pronouncement that must be proved as a fact — its date, its words, its witnesses; the husband's assertion in pleadings is not proof and is not itself a talaq.
2. A valid talaq requires a reasonable cause and must be preceded by an attempt at reconciliation by two arbiters, one from each family.
3. Until a talaq is so proved, the marriage subsists and so does the husband's liability to maintain.

The maintenance provision was s. 125 CrPC, now s. 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The instant triple talaq the husband claimed to have pronounced is now void and an offence under the Muslim Women (Protection of Rights on Marriage) Act, 2019; Shamim Ara's requirements govern the revocable forms that remain.