2005 PLP 1518 (YLR)

The question which falls for determination in this Constitutional petition is whether the claim of wife (plaintiff) for the recovery of her deferred dower is barred by Article 104 of the Limitation Act.

2. The husband (defendant) has pleaded that he pronounced a valid Talaq three years before the institution of the suit, hence the suit was barred. Issues were framed. Both the parties produced their evidence. The learned Judge Family Court decreed the suit in favour of the plaintiff. Findings of Issue No.4-A was recorded in favour of the plaintiff holding that the suit is within time. An appeal was preferred before the learned District Judge, who reversed the judgment of the learned Judge Family Court and held that the suit was barred in view of Article 104 of the Limitation Act.

3. The learned counsel for the petitioner contends that the judgment of the learned Appellate Court is perverse and arbitrary when it held that Talaq became effective on 8-1-1990 or at the most when written statement was filed on 16-7-1990 (Exh.D-3).

4. Conversely, the learned counsel for the respondent argued that Talaq became effective on 8-1-1990 as declared by the learned Judge Family Court in his judgment, dated 24-11-1992 (Exh.D1), hence the suit having filed on 14-6-1994, was barred by time.

5. Heard. Record perused.

6. Prior to this suit, the plaintiff had filed a suit for recovery of maintenance allowance. The defendant in the said suit filed written statement and pleaded pronouncement of divorce on plaintiff on 8-1-1990. The parties in the said suit led evidence. The Court concluded on 24-11-1992, that defendant pronounced divorce on 8-1-1990.

7. Admittedly, the petitioner was not present at the time of pronouncement of divorce on her. Written statement in the said suit was filed on 16-7-1990. Pronouncement of divorce was contested as the same was not proved to be backed by any notice or it became effective through Arbitration Council. It became effective on the pronouncement of judgment on 24-11-1992.

8. When the limitation will commence. From the date mentioned in the written statement or from the date of judgment. If the date mentioned in the written statement is to be taken then admittedly the wife-plaintiff was not present, hence she cannot be imputed with knowledge on 8-1-1990. Issue of divorce was contested by wife, which resulted in judgment against her. Such a question arose in the case of Shamim Ara v. The State of U.P. and another (AIR 2002 Supreme Court 3551), wherein it was held that we are also of the opinion that the Talaq to be effective has to be pronounced. The term "pronounce" means to proclaim, to uttar formally, to utter rhetorically, to declare, to utter to articulate (see Chambers 20th, Century Dictionary, New Edition, P. 1030). There is no proof of Talaq having taken place in the written statement and its communication to the wife by delivering a copy of the written statement on 5-12-1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced some time in the past cannot by itself be treated as effecting talaq on the date of delivery of the copy of written statement to the wife. The respondent No.2 ought to have adduced evidence and proved the pronouncement of Talaq on 11-7-1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view pronounced in the decided cases referred to by Mullah and Dr. Tahir Mehmood in their respective commentaries, wherein a mere plea of previous Talaq taken in the written statement though unsubstantiated, has been accepted as proof of Talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. 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 in the Court followed for delivery of a copy thereof to the wife. So also the affidavit, dated 31-8-1988, filed in some previous judicial proceedings not inter parte, containing a self-serving statement of respondent No.2, could not have been read in evidence as relevant and of any value.

9. The question more directly arose in Falchand v. Namal Ali Chaudhry (36 Calcutta 184 1909) which holds: "it is necessary certainly for the purpose of dower that the fact of pronouncement of Talaq should come to her notice. This case was referred to by the Division Bench in Aisha Bibi v. Qadir Ibrahim Rowther (33 Madras 22 1910). The correctness of the view recorded in Falchand (supra) was doubted by the learned Division Bench.

10. Undoubtedly, Article 104 of the Limitation Act provides, for any deferred dower, period of three years from the date when the marriage is dissolved by the divorce. Muhammadan Law is settled, that, so far as the claim of dower is concerned the marriage is dissolved only when it comes to the wife's notice.

11. Judgment in case (supra) settled the controversy raised herein. Since the defendant pronouncing the divorce, and one mentioned in the written statement did not prove notice to the wife effectively on 8-1-1990 was controverted and contested. The judgment was pronounced on 24-11-1992, holding that the plaintiff has been divorced. The plaintiff accepted this judgment. The period of limitation, therefore, under Article 104 will run from this date. The suit filed by the petitioner is, thus, within time.

12. In the nutshell, this Constitutional petition is allowed, the impugned judgment of the learned Appellate Court is set aside and that of the learned trial Court is restored. H.B.T./332/L Petition allowed.