A single bench of Justice Vinod Chatterji Koul has held that the mere presence of witnesses in the pronouncement of Divorce will not make the same Valid under Muslim Personal Law. Court outlines  certain other conditions for the guidance of Courts in order to declare and Divorce Valid.

The case before the court was that the husband had pronounced a valid divorce in presence of two witnesses and had thus brought an end to the marital relationship after the reconciliation efforts on his part has failed. The Petitioner had placed on record copy of Talaknama purportedly pronounced in presence of Two Witnesses. The penultimate paragraph thereof would reveal that petitioner in order to put an end to the wedlock has made three pronouncements of Talak, thereby declaring that he has divorced her and relieved her out of the wedlock.

The court held that such a practice is deprecated in law. While relying upon the judgment rendered in “Mohammad Naseem Bhat v. Bilquees Akhter and another, (2012) 4 JKJ 318” the court observed that for making divorce (Talaak) valid, it is not enough that it is pronounced in presence of two witnesses. The witnesses must be endued with justice as the purpose is to ensure that the witnesses, prompted by their sense of justice, may request and persuade the spouses on the verge of separation, to calm down, resolve their disputes and lead a peaceful marital life. It also appears that a husband to wriggle out of his obligation under marriage including one to maintain his wife, claiming to have divorced her has not merely to prove that he has pronounced Talaak or executed divorce deed to divorce his wife but has to compulsorily plead and prove that effort was made by the representatives of husband and wife to intervene, settle disputes and disagreements between the parties and that such effort for reasons not attributable to the husband did not bear any fruit; that he had a valid reason and genuine cause to pronounce divorce on his wife; that Talaak was pronounced in presence of two witnesses endued with justice; that Talaak was pronounced during the period of tuhr (between two menstrual cycles) without indulging in sexual intercourse with the divorcee during said tuhr. It is only after the husband pleads and proves all the above ingredients that divorce-Talaak, would operate and marriage between the parties would stand dissolved so as to enable husband to escape obligations under the marriage contract, including one to maintain his wife.
The Court in all such cases would give a hard look to the case projected by the husband and insist on strict proof.