Mangtu @ Salim vs Noorjahan

V.S. Aggarwal, J.—This is a revision petition filed by Mangtu alias Salim directed against the order passed by the Chief Judicial Magistrate, Jagadhri dated 13.6.1996. By virtue of the impugned order the learned Trial Court dismissed the objections filed by the petitioner.

To appreciate the question in controversy some of the facts which are not disputed can be delineated. The petitioner had been married to respondent Smt. Noorjahan. She had filed an application u/s 125, Cr. P.C. The maintenance of Rs. 150/- p.m. had been awarded to her besides Rs. 50/- p.m. to the other respondent. Respondent Noorjahan filed an application under Sub-section (3) of Section 125, Cr.P.C. alleging that the maintenance has not been paid and for the period 20.11.1991 to 20.12.1992 Rs. 2,600/- have become due to her. Notice to the said petition had been issued to the petitioner. He contested the same. The main contention raised was that on 28.1.1990 in presence of the Biradari in order to settle the matter, the petitioner had divorced the respondent. The brother of the respondent and her father were present. The respondent was not ready to live with the petitioner. After the iddat period had expired the petitioner is governed by Muslim Women (Protection of Rights on Divorce) Act, 1986 (for short ''the Act'') and consequently the respondent is not entitled to the maintenance.

The learned Chief Judicial Magistrate recorded the evidence produced by the parties and concluded that no divorce had taken place between the parties. The Trial Court observed that this plea had been taken to avoid the liability to pay the maintenance. In addition to that it was further held that since order u/s 125, Cr.P.C. had already been passed, therefore, the respondent was entitled to claim the maintenance. With these findings, the petition was dismissed.

Learned Counsel for the petitioner alleged that he had already divorced the respondent way back in the year 1990 and after the iddat period had expired in terms of the Act, the petitioner is not, liable to pay the maintenance. In support of his claim he referred to large number of precedents from different High Courts, namely to the case of Mst. Jameela v. Alimuddin 1993 (3) RCR 538; Mohammad Yammed v. State of Uttar Pradesh and Anr. 1992 (2) RCR 371 and to the decision in the case of Sk. Abubakkar v. Mst. Ohidunnessa Bibi 1993 (1) RCR 124. On the contrary reliance further was being placed by the respondent to the decision in the case of Maj. Rauf Ahmed v. Kanwar Anjam Jamali 1990 (2) PLR 33. However, it becomes unnecessary to consider the said question as to the effect of the Act on the orders that have already been passed. This is because of the reason that the Act only applies if there is a divorce between the parties.

In this regard reference must be made to the relevant provisions of the Act. The preamble of the Act itself states that it is to protect the rights of the Muslim. women who have been divorced or have obtained divorce from their husbands. Section 2-A of the Act defines the divorced woman to be :

"2-A "Divorced woman" means a Muslim woman who was married according to Muslim Law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim Law."

This position is further clarified by Section 3 of the Act. It stipulates that a divorced woman is entitled to maintenance only for the period of iddat besides other amounts. Section 5 of the Act further clarifies whether a divorced woman is unable to maintain herself and she has no relative or any one of them to pay maintenance, then the same can be directed to be paid by the State Wakf Board.

It is apparent from aforesaid that the provisions of the Act would only come into play if there is a divorce. If no divorce has taken place, in that event, the order that had earlier been passed, in any case would remain enforceable.

In the present case the learned Trial Court has returned the findings that there is no divorce between the parties. There is no ground to take a different view. The men may tell lie but ordinarily the circumstances do not. If the divorce had taken place in the year 1990, then in normal circumstances the petitioner himself would have approached the learned Judicial Magistrate for withdrawal of the order as alleged by him. The oral evidence now being produced was rightly rejected by the Trial Court. Therefore, the order of the learned Trial Court cannot be held to be erroneous. It calls for no interference. With respect to the other questions raised, no opinion is being expressed.

For these reasons, the petition being without merit must fail and is dismissed.