Ali Mohammad vs Mst. Rehmani Meo

Bal Raj Tuli, J.—This is a report by the learned Sessions Judge. Gurgaon, recommending that the order passed by the learned Judicial Magistrate, granting maintenance to Shrimati Rehmani at the rate of Rs. 40/- per mensem and to her three children at the rate of Rs. 20/- per mensem with effect from the date of the order should be modified so that Shrimati Rehmani should be granted maintenance at the rate of Rs. 40/- per month from May 31, 1969 to October 11, 1969 and the maintenance to her three children should be granted with effect from May 31, 1969 onwards. The learned Magistrate had granted the maintenance from the date of his order while the learned Sessions Judge has recommended that the maintenance should be allowed to them from the date of the application which is May 31, 1969.

Shrimati Rehmani filed the petition u/s 488 of the Code of Criminal Procedure claiming maintenance for herself and her three children. In reply to "that petition, the husband stated that he had divorced her about a year back according to the custom of Sherai Mohammadi, the personal law of the parties. As such, she is not now the wife of the respondent." In para. 5 of the written statement, he stated. "The applicant was duly divorced by the respondent. The respondent has no concern or liability to look after or maintain her. She is free to marry anyone and live where she likes. It is no concern of the respondent." The learned trial Court found that the plea of divorce prior to the institution of the proceedings had not been established. That finding was upheld by the learned Sessions Judge and has not been disputed before me. It is. therefore held that the husband has not been able to prove that he had divorced his wife prior to the institution of the petition u/s 488 of the Code of Criminal Procedure by her.

The learned Sessions Judge, however, on the basis of various decided cases, has held that the statement in the written statement of the petitioner that he had divorced his wife operates as a divorce and outs an end to the conjugal relationship. In support of his decision, the learned Sessions Judge has relied on Mahomed Hosain v. Ma Pwa Hnit AIR 1920 LB 54 : Cri LJ 503 Topzal Hossain Vs. H.C. Hunt, ; Abdul Shakoor Vs. Smt. Kulsum Bibi and Others, and Abdul Shakoor v. Smt. Kulsum Bibi .

The learned Counsel for Shrimati Rehmani has relied on Imam Saheb v. Hajju Bee ILR (1970) A P 130wherein the learned Judge has expressed his dissent from the view expressed in AIR 1951 Hyd 117 : Cri LJ 1299. The question, therefore, arises whether the statement in the written statement filed by the petitioner amounted to divorce which put an end to the conjugal relationship and the petitioner relieved himself of the liability to maintain his wife. A learned Single Judge of the Calcutta High Court held in Ahmad Kasim Molla v. Khatun Bibi ATR 1933 Cal 27. "As the law stands, any Mohommedan may divorce his wife at his mere whim and caprice without assigning any cause."

In Section 311 of Principles of Mahomedan Law by Mulla. Fifteenth Edition, different modes of talak are stated as follows:

(1) Talak ahsan.- This consists of a. single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat.

(2) Talak hasan.- This consists of three pronouncements made during successive tuhrs no intercourse taking place during any of the three tuhrs.

(3) Talak-ul-biddat or talak-i-badai.- This consists of-

(i) three pronouncements made during a single tuhr either in one sentence. e.g. "I divorce thee thrice." or in separate sentences e. g. "I divorce thee. I divorce thee, I divorce thee" or.

(ii) a single pronouncement made during a tuhr clearly indicating an intention irrevocably to dissolve the marriage, e.g., "I divorce thee irrevocably." The statement made in the written statement amounts to talak-ul-biddat as it is irrevocably stated that the petitioner had divorced the respondent and she is no more his wife nor has he any concern with her. It was also stated that she could go and marry anyone else as she was no more his wife. In view of these judicial pronouncements relied on by the learned Sessions Judge and others which have been referred to above. I hold that the statement in the written statement of the petitioner amounted to divorce of Shrimati Rehmani and she was entitled to maintenance for the period of iddat. That period is of three months and expired on October 11, 1969.

For the reasons given above, the recommendation of the learned Sessions Judge is accepted and Shrimati Rehmani is allowed maintenance at the rate of Rs. 40/- per mensem from May 31, 1969 to October 11, 1969 and her three children are allowed maintenance at the rate of Bs. 20/- per mensem each from May 31, 1969 onwards.