Case Study: Masroor Ahmed v. State (NCT of Delhi) and Other

By Vaidehi Umbarkar 8 Minutes Read

Citation: 2007 Indlaw DEL 2579, 2007 (2) ILR(Del) 1329

Date of Judgement: 3^rd October, 2007

Bench: B.D. Ahmed

Facts:

• The petitioner and complainant’s marriage were solemnised on 2nd April 2004 in accordance with Muslim rites.  After living together till 8th April 2005, according to the complainant, she was thrown out of her matrimonial home on account of non-fulfillment of dowry demands for which she complaint to the crime against women cell. It was alleged by the petitioner that towards the end of October 2005 he attempted to reconcile with the complainant. On her reluctant attitude, he became angry and uttered the word “talaq” to his wife in presence of his brother-in-law and another man. Admittedly, the factum of purported talaq was not communicated to the complainant. 
• On 23rd June 2006, the petitioner filed a suit for restitution of conjugal rights in the court of Senior Civil Judge, Delhi. The purported talaq was not mentioned in the plaint. On 13th April 2006, the judgment was passed by the court, it stated that “the matter has been settled between the parties and the defendant is ready to join the company of the plaintiff“.
• A second nikah was performed between the petitioner and the complainant on 19th April 2006, and later once again there was discord between them, and petitioner pronounced talaq (again) on 28^th August 2006, and they lived separately. The complainant filed a complaint before the crime against women cell on 6th September 2006. Alleging that she got to know about the talaq (October 2005) during the inquiry. The complainant alleged that the factum of the complaint was not known to her and her signature was taken on the pretext that the documents had to be filled in court as a formality. According to the complainant, the petitioner and complainant had sexual intercourse on 13^th April 2006 and 19^th April 2006 when, according to law, he was not her husband. She filed her written complaint with regard to alleged rape committed during 13^th April 2006 and 19^th April 2006 and an FIR under section 376 IPC was registered on 12^th December 2006.

Lower Court Decision:

The petitioner was originally seeking bail in respect of FIR No. 871 dated on 12^th December 2006 registered at police station Preet Vihar under Sec 376 of IPC before session court. As petitioner had not disclosed the factum of talaq, either to the complainant or to the court, in his suit for restitution of his conjugal rights his bail application was dismissed by the session court. An appeal was made by the petitioner to the High court

Issues:

• Whether the purported talaq of October 2005 was valid?
• Could high court exercise power under Sec 482 of CrPC?

Judgement:

The court ordered that the FIR stands quashed and all pending proceedings emanating from the said FIR also stand quashed.

Key Law Points:

1. Was the purported talaq of October 2005 valid?

No,

The purported talaq was invalid. As established in Shamin Ara v. State of U.P.[1], that the attempt at reconciliation must precede the pronouncement of talaq itself. The attempt at reconciliation which is recommended under Shariat has been assigned a key role by Supreme Court. Baharul Islam J. Of the Gauhati High Court held in one of the cases, “an attempt at reconciliation by two relatives – one each of the parties, is an essential condition precedent to talaq“.

In M.M. Abdul Khader v. Azeea Bee[2], it was held that the talaq pronounced in absence of the wife would be invalid but, it would be effective only on the date the wife comes to know of the pronouncement of talaq by her husband. In the present case, it was never communicated to the complainant, at least not by the relevant period (i.e., till 13th or even by 19th of April 2006)

2. Whether power under Sec 482 of CrPC be exercised by the High Court?

Yes,

The court observed that the settlement between the petitioner and the complainant would itself have been sufficient for this court to exercise its inherent powers to put an end to the FIR as the settlement between them brings end to the legal matrimonial battles. In R.P. Kapur v. State of Punjab[3], the Supreme court summarized some categories of cases where inherent power of the High Court can and should be exercised to quash the proceedings. The case falls under the category where the allegations in first information report or complaint was taken at its face value and accepted in their entirety do not constitute the offence alleged.

3. Could rape charges be framed in this case?

No,

The exception in Sec 376 of IPC becomes applicable and, consequently, the offence of rape is not made out. No case of rape can at all be made out in view of exception “exception. – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”

4. What is the effect of the second nikah of 19.04.06?

It was not necessary,

Since the marriage was subsisting, the second nikah between them would be of no effect. However, had purported talaq of October 2005 been valid, it would have operated as single evocable talaq and it would have been permissible for the couple to re-marry. In that case, the second nikah would have been effective and valid. And then, presumption of consent just prior to the marriage would be available to the petitioner.

[1] AIR 2002 SC 355.
[2] AIR 1944 Madras 227.
[3] AIR 1960 SC 866.

Vaidehi Umbarkar