MANOLI PATHAYI Vs. MOIDEEN
HIGH COURT OF KERALA
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(1.) In a proceeding by a Hanafi Muslim wife against her husband when he files a written statement contending that he bad divorced her on a previous day and that contention is found against does not the marriage between them become dissolved at least on the day when the written statement is filed Our answer to it is in the affirmative and that for what is set out below.
(2.) Under Mohammadan law for a variety of reasons there are differences in the position of husband and wife as regards their rights when they are in the married state and in respect of divorce. The only condition necessary for the valid exercise of the right of divorce by a husband is that he must be a major and of sound mind at that time. He can effect divorce whenever he desires. Even if he divorces his wife under compulsion, or in jest, or in anger that is considered perfectly valid. No special form is necessary for effecting divorce under Hanafi law. The presence of the wife is not necessary at the time of the dissolution of the marriage. Witnesses are necessary for effecting a marriage, but not for dissolving it. Talaq is dissolution of marriage effected by the husband by repudiation. It is a release from the marriage tie. The husband can effect it by conveying to the wife that he is repudiating the alliance. It need not even be addressed to her. It takes effect the moment it comes to her knowledge. These principles are well established.
(3.) S.147 in Tyabji's Muhammadan Law says that a single revocable talaq is effected if the expression is such as to imply that a talaq has already been effected. Illustration 10 to that Section reads as follows:
"(10) He says to his wife, 'Thou art repudiated yesterday.' She is divorced immediately if she was his wife 'yesterday', -- but not otherwise".;
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