Nathoo Khan vs State

Hari Swarup, J.—This reference has been made by the learned First Additional Sessions Judge recommending that the order of the Magistrate issued u/s 488 of the Code of Criminal Procedure, 1898, be partially quashed. The woman filed an application for maintenance claiming herself to be the wife of the applicant Nathoo Khan and claimed maintenance also for the child. It was pleaded on behalf of the husband that on the date the application was moved by Smt. Shafigan, she was not his wife as he had already divorced her. Learned Magistrate held that there was no earlier divorce and that it occurred only on 22-5-73, the date on which the husband had filed the written statement in the case, and that the wife was, entitled to maintenance for the period of Iddat which according to him would last for six months with effect from the date of divorce. He allowed maintenance also for the child. The learned Sessions Judge held that divorce had taken place not from the date of the filing of the written statement but from an earlier date, viz., March 17, 1973. He was further of opinion that once a woman is divorced she ceases to be a wife and thus not entitled to claim maintenance u/s 488 Code of Criminal Procedure. He has accordingly recommended that the order allowing maintenance to the wife be quashed.

The learned Sessions Judge has obviously gone wrong on both the points. The learned Magistrate had held that Ext. Kha-1, which according to the husband was the document exhibiting ''Talaq'', was not a document exhibiting ''talaq'' but only a deed showing relinquishment by the wife. The words in that document, which has been read out over here, certainly are not expressive of the fact that the husband had by that document given the talaq. The learned Magistrate has taken the view that the averments in the written statement amount to talaq. It is not necessary for me to go into the correctness of this finding of the trial court as it was never challenged by the wife and even now there is no revision by the wife challenging the finding. I accordingly, for the purposes of this case, accept that the talaq had come into existence as found by the learned Magistrate.

If the talaq had taken place on the date of the filing of the written statement, the application u/s 488 Code of Criminal Procedure was maintainable and the wife will be entitled to claim maintenance for the period till she continues to be the wife. Here we are not concerned with the rights of the wife under the new Code of Criminal Procedure which treats divorced woman also as a wife in certain circumstances.

In the matter of Din Mohammad ILR All 226 it was laid down:

As a general rule, therefore, it may be laid down that the severance of conjugal tie, caused by divorce, does not become absolute till the termination of the period of the iddat, the length whereof in the case of divorced woman (not pregnant) extends over a period of three months, reckoning from the divorce.

If any restriction remains on the woman as regards marrying another man during a particular period, the merital relationship cannot be deemed to come to a close till that period lasts. As during the period of iddat a Muslim wife remains under legal restrictions from marrying again, she must be deemed to be a wife for purposes of maintenance till the period of iddat ends. As however, the iddat lasts for three and not six months, the order of the Magistrate is erroneous.

In the result, the reference is accepted in part. The order of the learned Magistrate is maintained, with the modification that instead of the period of iddat being counted as six months, it should be counted as three months; thus the wife will be entitled to get maintenance for herself only for the period ending with three months from the date of the filing of the Written Statement in the case. The maintenance awarded to the child will not be affected by this order.