Md. Abdul Aziz vs Rehman Begum

N.G. Das, J.—This petition u/s 397 read with Section 401 of Code of Criminal Procedure is directed against the order of learned Chief Judicial Magistrate, Karimganj dated 1.8.87 passed in M.R. Case No. 75/87 directing the Petitioner herein to pay the Opposite Party maintenance allowance at the rate of Rs. 100/- per mensem.

The brief facts of the case are that the Petitioner married the Opposite Party on 29.10.80 A.D. according to Islamic rites and out of their wed-lock two children were born. Thereafter the Petitioner married the wife of his younger deceased brother and soon-after this marriage, it was alleged, the Petitioner started torturing the Opposite Party and the magnitude of the torture went to such an extent that the Opposite Party along with her children had to take shelter in the house of her father. As the Petitioner did not take care of the Opposite Party the Opposite party at last filed a petition in the court of learned Chief Judicial Magistrate for maintenance.

The Petitioner resisted this petition by filing a written statement wherein he contended, inter alia, that he divorced the Opposite party and that he never tortured her. So, according to Mahomedan Law the Opposite party is not entitled to get any maintenance.

Both the parties adduced evidence in the court of learned Chief Judicial Magistrate, who after elaborate discussion of the evidence arrived at the conclusion that the fact of divorce was not proved: So, considering the income of the Petitioner the learned Chief Judicial Magistrate granted maintenance allowance to the Opposite party and her two children at the rate of Rs. 100,00 per head per mensem.

So, the principal question which calls for consideration in this case is whether the contention of the Petitioner that he divorced his wife i.e. Opposite party as per Mahomedan Law is acceptable or not.

Mr. H.R.A. Choudhury, the learned Counsel appearing for the Petitioner has submitted that the impugned order deserves to be set aside so far as the Opposite Party is concerned since learned Chief Judicial Magistrate has erroneously taken into consideration some evidence which has no relevance to the case. According to Mr. Choudhury this kind of evidence is not at all permissible to be taken into consideration in view of the provisions laid down u/s 310 of the Mehomedan Law which reads:

Talak may be oral or in writing-A talak may be effected (1) orally (by spoken words) or (2) by a written document called a talaknama (a).

(1) Oral Talak - No particular form of words is prescribed for effecting a talak. If the Words are express (saheeb) or well under-stood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved (e). It is not necessary that the talak should be pronounced in the presence of the wife of even addressed to her (f). In a Calcutta case the husband merely pronounced the word "talak" before a family council and this was held to be invalid as the wife was not named (g). This case was cited with approval by the Judicial Committee in a case where the talak was valid though pronounced in the wife''s absence, as the wife was named (h). The Madras High Court has also held that the words should refer to the wife (i). The talak pronounced in the absence of the wife takes effect though not communicated to her, but for purposes of dower it is necessary that it should come to her knowledge (j); and her alimony may continue till she is informed of the divorce (k). As the divorce becomes effective for purposes of dower only when communicated to the wife, limitation under Article 104 for the wife''s suit for deferred dower ran from the time when the divorce comes to her notice (1), under the Act of 1908.

Referring to this provision Mr. Choudhury has argued that no formal proof is necessary for dissolution of marriage under the Mahomedan law. It is sufficient if husband communicated his decision to his wife that he has divorced her. But Mr. Raj Barbhuyan, the learned Counsel appearing for the Opposite Party has contended that in case the ''talak'' is given orally it has to be pronounced in presence of some competent witnesses and a ''talaknama'' in writing has to be communicated. It is argued by him that in the instant case the evidence on record will show that the Petitioner never pronounced this talak either in presence of his wife or any competent witness and hence such a plea at a belated stage is not sufficient to terminate the marriage and as such the wife is entitled to get maintenance. But M. Choudhury repels the contention of Mr. Barbhuyan by submitting that pronouncement of the word taluk in the presence of the wife or any witness is not at all necessary under the Mahomedan Law.

On perusal of the above provision which is quoted from "Mulla''s Principles of Mahomedan Law", it is apparent that the Mahomedan Law is very much in favour of the husband than the wife and has given liberty to the husband not only to divorce the wife orally as set out under the Mahomedan Law, but also by writing. Mr. Choudhury has argued that the finding of the learned Chief Judicial Magistrate that no witness was present at the time of divorce is absolutely erroneous finding because as per provision of Section 310 it is not necessary that pronouncement of the word ''talak'' has to be made in presence of the wife or any one else. It is sufficient if it is communicated to the wife. Mr. Choudhury has contended that after filing of the written statement where it has been specifically stated by the Petitioner that he has divorced the Opposite Party, the latter has no scope to say that she was not divorced by the Petitioner. In support of his contention Mr. Choudhury has referred to the decision in the case of Chandbi Ex. W/o Badesha Majawar, applicant v. Bandesha s/o Balwant Mujawar, opponent reported in AIR 1961 Bombay 121 where it was held that:

...Even if the statement of the fact of divorce was not proved, it would operate as declaration of divorce from the date of the written statement.

The above decision appears to have been rendered according to the principles laid down in case No. XLII in Macnaghten''s Mahomedan Lav, 4th Edition p. 296. It is also manifest from Section 310(1) of Mahomedan Law as quoted earlier that a divorce becomes effective from the time, when the divorce come to the notice of the wife. It has, therefore, to be seen when the Opposite Party came to know that she has been divorced by the Petitioner. Learned Chief Judicial Magistrate held that the Petitioner failed to prove the fast of divorce as such declaration was not made in presence of any witness. But this finding is not acceptable in view of the fact that Mahomedan Law gives a special preference to the husband to divorce his wife without pronouncement of the word ''talak''. In presence of any witness, It becomes effective as soon as it was communicated to the wife.

In the instant case, the Petitioner who examined himself as D.W. 1 stated that after about 17 days of the ''Baithak'' which was held in the house of Saukat Ali of Patharkandi he divorced the opposite party. But he did not specifically state on which date he actually divorced his wife and it has also not been specifically stated by him on which date he actually communicated this information of divorce to the opposite party. Similarly, the evidence of D.W. 2 and D.W. 3 does not show when this information of divorce was communicated to the opposite party. But this finding cannot help the opposite party as the petition in his written statement specifically stated that he divorced the opposite party. The Petitioner filed the written statement on 10.7. 1987. So, it has to be held that the written statement itself amounts to a declaration of divorce and it would be held to have effected at least from this date.

Mr. Choudhury has argued that the opposite party is entitled to maintenance during the period of ''Iddat'' only. ''Iddat'' period as defined in Section 2(b) in the Muslim Women (Protection of Rights on Divorce) Act, 1986 means "in the case of a divorced woman- (i) three menstrual courses after the date of divorce, if she is subject to menstruation; (ii) three lunar months after her divorce, if she is subject to menstruation: and (iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery other child or the termination of her pregnancy, whichever is earlier."

So, in view of my foregoing discussions I hold that the opposite party is entitled to get maintenance at the rate fixed by the learned Chief Judicial Magistrate only for a period of 3 lunar months from 10-7-1987.

For the reasons stated above, I modify the order dated 1-8-1987 passed by the learned Chief Judicial Magistrate. Kurimganj to the extent as indicated above.

The petition is accordingly disposed of.