Mustari Begum and Another vs Mirza Mustaque Baig

R.N. Biswal, J.—This revision is preferred against the order-dated 5.11.1997 passed by the Judge, Family Court, Cuttack, in Criminal Proceeding No. 524 of 1994 wherein he refused to exercise his jurisdiction.

The parties are Muslims. On 26.9.1994 petitioner Nos. l and 2 filed a proceeding u/s 125 Cr.P.C. for maintenance against the opposite party claiming themselves to be his wife and son respectively before the Judge, Family Court, Cuttack. Notice was served on the opposite party asking him to file show cause, if any, in response to which he submitted show cause taking the plea inter alia that he divorced petitioner No. 1 on 3.11.1993 and as such the proceeding was not maintainable in view of Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as ''The Act''} which came in to force with effect from 25.6.1986. Petitioner No. 1 denied the plea of previous divorce advanced by the Opp. Party. Without proceeding further the Court below first heard about the maintainability of the proceeding. After hearing, the Judge, Family Court held that Section 125 Cr.P.C. would apply to a divorced Muslim woman, if both the parties exercised their option at the first hearing of the application u/s 3(2) of the Act as contemplated u/s 5 and not in any other manner. In the case at hand, since the parties did not exercise their option as required under the Act, the Judge, Family Court did not feel proper to exercise its jurisdiction and dropped the proceeding thereby.

Being aggrieved with this Order the petitioners have preferred this revision.

Learned counsel for the opposite party submitted that a Muslim husband has unfettered right to divorce his wife. As per the case of the opposite party he gave ''Talaq'' to petitioner No. l on 3.11.1993. So from that date there is no subsistence of marriage between the two. The Act came into force on 25.6.1986- much before the divorce. As required u/s 5 of the said Act unless both the previous husband and the divorced wife give consent to be governed by Sections 125 to 128 Cr.P.C. the Judge, Family Court has no jurisdiction to entertain any application under those sections. He further submits tha if it is considered that the divorce cannot be said to have taken place on 3.11.1993 still then at least the date on which the opposite party filed show cause/ written statement stating therein about giving of ''Talaq'' to petitioner No. l would be considered as the date of divorce. In support of his submission, he relied upon decisions in Mohammad Ali Vs. Fareedunnisa Begam and Another, and Sayad Nawaj Alli alias Nati v. Rasida Begam 71(1991) C.L.T.257. In both these decisions, it has held that if the husband has averred in the show cause/ written statement that he gave ''Talaq'' to his wife earlier to filing of the show cause/written statement at least it would be held that ''Talaq'' was given on the date of filing the show cause/written statement. In the decision of Sayad Nawaj Alli (supra) it has also been held that a divorced wife cannot seek relief u/s 125 Cr.P.C.

Learned counsel for the petitioner submitted that mere plea of previous divorce in the show cause/written statement would not amount to divorce. As per the Mohammedan Law Talaq can be given in two modes viz. oral and ''Talaq-nama''. In the present case the opposite party has not taken the plea that he gave ''Talaq'' to his wife through any ''Talaq-nama''. In oral divorce there must be articulation of the word Talaq''. In support of his submission he relied upon the decision Shamim Ara v. State of U.P. and Anr. 95 (2003) CLT 247 (SC) wherein the Apex Court analyzing several decisions and texts of Mohammedan law held that Talaq'' to be effective has to be pronounced. The term ''pronounce'' means proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate. Mere pica of divorce taken in the written statement/show cause cannot itself be treated as effecting a talaq on the date of delivery of copy of the written statement/show-cause to the wife. In view of this decision, petitioner No. 1 cannot be said to have divorced merely because such a plea has been taken by opp party in his show cause. So she along with her child legally can initiate a proceeding u/s 125 Cr.P.C. before the Judge, Family Court. Learned counsel for the petitioner submitted that judgment in the aforesaid decision was delivered on 1.10.2002. The impugned Order having been passed on 5.11.1997 the said decision would not be attracted to the present case. There is nothing in the Apex Court decision that the decision would be applicable from a particular'' date. So in my view the decision would be applicable to the case at hand.

Accordingly, the revision is allowed and the Order dated 5.11.1997 passed by the Judge, Family Court, Cuttack is hereby set aside. The Judge, Family Court, Cuttack. shall hear the case on merit.