Aboobaker vs Kadeesa

Mrs. Anna Chandy, J.—A Mohammedan husband who has been ordered to pay maintenance to his wife and child u/s 488 Criminal Procedure Code is the revision petitioner. The petitioner married the respondent about ten years back and they were living as husband and wife in the petitioner''s house. The husband was having a grievance that the wife was not given sufficient ornaments and so she was sent to her father''s house to get mere ornaments. While she was in her father''s house the petitioner sent a notice to the Khasi of Orkatheri purporting to be a talak. On receipt of the notice there was a mediation in the house of the petitioner''s father in the presence of the petitioner and his father at which it was found that the notice was not intended to operate as a divorce and did not operate as such and that the wife was to be taken back by the petitioner on payment of Rs.165. Accordingly the wife was taken back to the petitioner''s house and the amount was paid. After that the wife became pregnant and gave birth to a child on 19-6-1962. The petitioner sent Rs.75/- through his brother to meet delivery expenses. Thereafter he neglected to maintain the wife and child and hence the petition came to be filed. The husband contended that he had divorced his wife in January 1960 by sending a written talak to the Khasi of Orkatheri. He denied the subsequent mediation and the taking back of the wife and the paternity of the child. The petitioner, her father, two of the mediators the muthavalli of the Mosque and a retired school-teacher and the present Khasi of Orkatheri who is the son-in-law of the Khasi to whom the notice was sent who is no more gave evidence in support of the petitioner''s case and accepting their evidence the learned Magistrate has held that the notice did not operate as a divorce and that the wife was taken back to the husband''s house where they lived as husband and wife and the child was born to them.

The points urged before me in revision are (i) that the said findings are unsupported by acceptable evidence, (ii) that even if the mediation and the resumption of the marital relationship are true as an irrevocable talak has been pronounced by the sending of the notice to the Khasi it has no legal effect, (iii) that in any view the written statement where he has stated that he had divorced his wife operates as a divorce from that date and the wife is not entitled to claim maintenance thereafter.

(i) Though the learned counsel has been able to point out some discrepancies and contradictions in the evidence of the witnesses yet they will not justify interference with the finding of fact arrived at after due appreciation of all the available evidence. (ii) The evidence is that the mediators on a perusal of the notice decided that it did not contain the requirements of a valid talak and was not intended as such. That decision was taken at a meeting at which the husband and his father were present and with their approval and in pursuance of that decision the wife was taken to her husband''s house and the marital relationship was continued. In the absence of the notice it is not possible for the court to take a decision to the contrary based on the varying and inconclusive versions given by the witnesses regarding the contents of the notice. It was argued that on account of the failure of the wife to produce the notice it has to be presumed that the notice operated as a divorce. No such inference could be drawn. The notice itself was addressed to the Khasi. The wife''s father has given evidence that the notice was handed over to the petitioner''s father and the petitioner''s father has not gone to the box to rebut that evidence. (iii) It is not disputed that the written statement would operate as a divorce. Following the decisions of the Hyderabad High Court in Wahab Ali v. Qamro Bi--A. I. R. 1951 Hyd. 117, Bombay High Court in Chandbi Ex Vs. Bandesha, --and the Allahabad High Court in Abdual Bhakeer v. Smt. Kulsum Bibi-- 1962 (1) CLJ 247--this court has held in Kannoth Meethalayissu v. Thevikandiyil Ahammad--(1965 M. L. J. (Crl.) 48 that the written statement would amount to an unequivocal expression of the desire to divorce and operates as a divorce. The only question that remains to be decided is whether the respondent is entitled to claim maintenance for the period of Idat it is not disputed that under Hanafi Law on divorce a wife is entitled to maintenance during her Idat but not under the Shafii law if she is irrevocably divorced (vide Tyabji''s Mohammedan Law--3rd Edition page 322). The reported decisions are to the effect that in India the presumption is that Mohammedans are Sunnis and Hanafis and whenever a deviation from the Hanafi Law is sought to be relied on in a case it has to be pleaded and proved (vide Kammukutty Naha Haji v. Karikutty and Others--1966 K. L. J. 662 and Usman Koya v. Kunhu Bi--1958 K. L. T. 27. However the learned counsel for the petitioner brings to my notice the Madras District Gazetteer Malabar Vol. I page 188 where it is observed that the Mappilas belong to the Shafi School of the Sunni Sect of Mohammedans and prays that the case may be sent back to the lower court for affording an opportunity to prove the fact that the parties in this case belong to the Shaft school. This prayer is not objected to by the other side. The order of the lower court is therefore modified to this extent, viz., that maintenance is payable to the wife only from the date of the petition till the dale of the written statement. The further question whether she is entitled to claim maintenance for the period of idat will be decided by the court after taking evidence. The order of maintenance made in favour of the child is confirmed. The Revision Petition is disposed of accordingly.