In Re: Shekhanmian Jehangirmian

Mirza, J.—The applicant applies for revision of an order of the First Class Magistrate, Dhandhuka, ordering him to pay maintenance to the opponent at the rate of Rs. 12 per month from November 1, 1927. The opponent applied to the Magistrate on November 1, 1927, under the provisions of Section 488 of the Criminal Procedure Code for an order for maintenance against the applicant, who, she alleged, was her husband. The applicant contended that he had divorced the opponent according to Mahomedan law in the year 1914 and that if there was any doubt with regard to the factum or validity of that divorce, he had divorced her in open Court by pronouncing the word "talak" three times thereby indicating his intention that the talak was to take effect immediately and become irrevocable.

The Magistrate has given no finding as to whether the alleged talak in "1914 had taken place. He considers that the alleged talak in 1914 as well as the talak pronounced in Court are immaterial having regard to the provisions of Section 488 of the Criminal Procedure Code. He observes :-

Besides the right to maintenance conferred by Section 488, Criminal Procedure Code, is a statutory right which the Legislature has created, irrespective o� the nationality or creed of the parties, the only condition precedent to the possession of that right, in the case of a wife, being the existence of conjugal relation.

He holds on the strength of a ruling in In the matter of the Petition of Luddwn Sahiba ILR (1882) Cal. 736, which related to the case of a mutta wife of a Shia Mahomedan, that a wife would be entitled to maintenance u/s 488 of the Criminal Procedure Code irrespective of the fact that she was not entitled to maintenance under her personal law. He also holds a custom proved by which no female belonging to the family of the Koreshis to which family both the applicant and the opponent belong, can contract a second marriage. He holds, therefore, that the declaration of talak by the applicant does not debar the opponent from claiming maintenance u/s 488.

This finding of the Magistrate is contrary to the ruling in Shah Abu Ilyas v. Ulfat Bibi ILR (1896) All. 50, and is opposed to the principles of the Mahomedan law of divorce which is the personal law of the parties. A talak when it becomes irrevocable puts an end to conjugal relationship which had subsisted between the parties, and the divorced wife would not be entitled to claim maintenance from her husband beyond the period of iddat from the date of such irrevocable divorce. Section 488 of the Criminal Procedure Code has in no manner abrogated this part of the personal law of the parties. The existence of conjugal relations in the case of Mahomedans has to be determined by reference to the provisions of the Mahoraedan law and not by considerations of equity and good conscience as understood in any other system of law.

The Magistrate should have ascertained whether there was a valid divorce of the opponent by the applicant in 1914 as alleged by him. If he was satisfied that there was such a divorce he should have held that the opponent was not entitled to any maintenance from the applicant u/s 488. If the Magistrate held that the alleged divorce of 3 914 was not established to his satisfaction he could have held on the materials before him that an irrevocable divorce in the bidaat form had been pronounced by the applicant in open Court, and would take effect immediately the pronouncement was made. In that case he could have made an order in favour of the opponent u/s 488 for maintenance from the date of her application until the expiry of her iddat after this divorce.

We set aside the order of the Magistrate and remand the case to him for retrial according to law, in the light of our above