While dealing with a matrimonial matter relating to maintenance, the Allahabad High Court has held that under Mohammedan Law, when a husband pronounces talaq, the divorce takes effect from the date on which talaq is pronounced. The High Court also explained that a subsequent decree declaring the divorce is merely declaratory in nature.

The High Court was considering a criminal revision challenging the order of the Family Court in a case under Section 125 Cr.P.C., whereby the application for maintenance filed by the revisionist/wife was rejected, while maintenance was awarded to the two minor sons.

The Single Bench of Justice Madan Pal Singh held, “In the present case, it appears that the learned Family Court has rejected the claim of maintenance of the revisionist mainly on the premise that the decree declaring the divorce was passed subsequently and, therefore, the second marriage was void. The approach adopted by the learned Family Court does not appear to be in consonance with the settled legal position that a decree in such cases is merely declaratory and relates back to the date of pronouncement of talaq.”

Advocate Basharat Ali Khan represented the Revisionist, while Advocate Afzal Ahmad Khan Durrani represented the Opposite Party.

Factual Background

The case, as set up by the revisionist wife, was that her marriage with her first husband was solemnised in the year 2002. The husband had already pronounced talaq in 2005. Thereafter, a declaratory suit was filed, and the talaq was declared valid. It was further submitted that after observing the period of iddat, the revisionist solemnised her marriage with the second opposite party in 2012 with full knowledge of the earlier divorce. Out of the said wedlock, two sons were born. It was submitted that the parties lived together as husband and wife for several years, and the opposite party had himself admitted the marriage as well as the paternity of the two sons.

As per the revisionist, the Family Court committed a manifest error in treating the marriage between the parties as void. The revisionist initiated proceedings under Section 125 CrPC on the ground that the second respondent is a Central Government employee earning a substantial salary, but had neglected and refused to maintain the revisionist and their minor sons.

Reasoning

The Bench explained that under Mohammedan Law, when a husband pronounces talaq, the divorce takes effect from the date on which the talaq is pronounced, subject to its validity in accordance with law. “It is further settled that where a husband pronounces talaq and subsequently approaches the court seeking a decree regarding the same, the decree passed by the court is ordinarily declaratory in nature, which merely recognizes or confirms the status of divorce that had already taken place”, it added.

On a perusal of the facts of the case, the Bench noted that the approach adopted by the Family Court did not appear to be in consonance with the settled legal position that a decree in such cases relates to the date of pronouncement of talaq.

“In view of the aforesaid legal position, this Court is of the opinion that the matter requires reconsideration by the learned Family Court after properly examining the effect of the talaq allegedly pronounced earlier and the nature of the decree passed in the declaratory proceedings, as well as the other evidence available on record”, the Bench held while setting aside the order of the Family Court to the extent it related to the revisionist/wife.

Cause Title: A v. State of U.P. and Another (Neutral Citation: 2026:AHC:49191)

Appearance

Revisionist: Advocates Basharat Ali Khan, Zawwar Haider Naqvi

Opposite Party: Advocates Afzal Ahmad Khan Durrani, Government Advocate, Jamal Ahmad Khan

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Allahabad High CourtJustice Madan Pal Singh

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.