Facts of the case:
The husband, is a Defendant in O.S.No.33 of 2018, is the revision Petitioner herein. The wife has filed a suit in the mentioned order, before the Family Court at Chennai seeking a declaration to declare the Talaq dated 13.01.2018 and 17.02.2018 regarding the marriage dated 24.09.2011 between her husband as null and void.
While the Order, as mentioned above, is pending, the husband, i.e., Defendant, filed a written statement and the matter is taken up, and the evidence on the side of the wife is recorded. Part of the cross-examination is over. At that juncture, the husband has filed an Interlocutory Application praying to dismiss the suit in O.S.No.33 of 2018 filed by the wife as not maintainable for want of cause of action. The said application was dismissed by the learned IV Additional Principal Judge, Family Court, Chennai, and hence, the present Civil Revision Petition is filed by the husband.
Arguments before the court:
The Counsel for the Revision Petitioner, i.e., the husband, submitted that the Respondent, i.e., the wife herein rushed to the Court immediately after the first pronouncement on 13.01.2018. The second pronouncement was on 17.02.2018 which was subsequently seen incorporated in the plaint prayer portion as well, in the list of documents. The Counsel further maintained that the claimed maintenance in the year 2017 itself and hence contended that the suit is premature and prayed for rejection of the plaint on that ground.
The counsel for the Respondent (the wife) submitted that the husband declared Talaq on 13.01.2018, and after the filing of the suit, another Talaq was pronounced on 17.02.2018. After appearance and filing of the written statement the third one was pronounced on 23.06.2018, and as the suit was filed challenging the validity of the pronouncement of the Talaq, the first Talaq pronounced at the first instance gives rise to a cause of action and hence, contended the suit is maintainable.
The Court observed that the revision petitioner filed the point before the Trial Court to dismiss the suit and grant of premature by way of rejection of the plaint.
The Court further observed that there are 11 forms of Talaq (divorce) as per Muslim law. The Apex Court had laid guidelines concerning the pronouncement of Talaq Ahsan (triple talaq) and single pronouncement of Talaq as per Section 311(i) of Mohammedan Law; wherein there must be an attempt of a reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other from the husband’s family.
Aser Section 311(5), the second form of Talaq is Talaq Hasan as per Section 311(ii) of Mohammedan Law, wherein, three pronouncements made during successive tuhr, no intercourse taking place during any of the three tuhr. Pronouncement of Talaq Hasan should be made during a tuhr, the second during the next tuhr, and the third during the succeeding tuhr. Hence, the Talaq Hasan becomes complete only after the third pronouncement, and it becomes irrevocable under Section 312(2) of Mohammedan Law.
The Court further noted that whether the alleged Talaq said to have been pronounced on 13.01.2018 falls under “Talaq-e-Ahsan” or “Talaq-e-hasan” is to be determined from the evidence let in by the parties.
The Court relegated the parties to go before the Trial Court to complete the trial. It also directed the learned IV Additional Principal Judge, Family Court, Chennai to take into consideration whether the suit is premature as contended by the Defendant/husband as one point for determination.
The Court disposed of this Civil revision Petition and directed the concerned Family Court to complete the trial within eight weeks of this Order.
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