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In Re: Rajasaheb Rasulsaheb - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 23 of 1019
Judge
Reported in(1919)21BOMLR1085
AppellantIn Re: Rajasaheb Rasulsaheb
Excerpt:
mahnmedan law-divorce-falaknama - registration- deed not executed in presence of kazi or wife-communication to wife within reasonable time.;a talaknama (deed of divorce made by a mahomedan in the presence of witnesses and duly registered is valid in law, although it is not made either in the presence of a kazi or the wife, and not communicated to the latter immediately on its execution, provided it cornea to her knowledge within a reasonable time from the date of its execution. - .....the reasons for the divorce was the fact that the wife had obtained an order for maintenance. the child whose maintenance is obligatory upon the present petitioner is said to be about three years old. the mother is entitled to the custody of the child and it is not disputed before us, and indeed it cannot be disputed, that the petitioner is bound to provide adequate maintenance for the child. no doubt at first sight it would appear that some reduction might fairly be made in favour of the petitioner. but having regard to the circumstances under which this talaknama came to be executed and to the necessity of keeping the child with the mother, i do not think that any reduction would be appropriate.5. on these grounds, i would not reduce the amount of maintenance which was awarded in the.....
Judgment:

Shah, J.

1. The parties to this application are Mahomedans The wife applied to the Magistrate in the first instance for maintenance for herself and her daughter. An order was made by the Magistrate under Section 488 of the Criminal Procedure Code, on the 22nd of July 1918, awarding her Rs. 10 per month for their maintenance. The husband executed a talaknama, on the 14th of August 1918, in the presence of witnesses and that document was registered. Subsequently, on the 4th of December 1918, he made an application to the Magistrate for the cancellation of the said order in favour of his wife on the ground that he was no longer bound to maintain her. The learned Magistrate was of opinion that the talaknama was not valid as it was not made in the presence of a Kazi and that there was no ground to cancel his previous order. The husband then applied to the Sessions Court. But that Court refused to take any action on his application, though it was of opinion that the talaknama was valid. He has now applied to this Court for the revision of the order made by the Magistrate on the ground that the talaknama is valid and that the amount of maintenance should be reduced proportionately.

2. I am of opinion that the talaknama is valid according to Mahomedan law. It is true that it was not made before a Kazi, that it was not made in the presence of the wife, and that no attempt appears to have been made immediately on the execution of the talaknama to communicate it to her. It is clear, however. on these proceedings that this talaknama came to the notice of the wife at the latest when the husband made the present application for the cancellation of the previous order for maintenance.

3. Mr. Limaye appearing for the wife has contended that the talaknama is not valid as no attempt was made immediately to communicate the same to the wife He has not, however, been able to cite any authority in support of this proposition; and all that appears necessary is that the fact or the talak having been effected must come to the notice of the wife. There is nothing to show that it must be brought to the notice of the wife within a particular time from the date on which it is executed. In the present case the talaknama came to her knowledge within a reasonable time from the date of its execution; and that seems to be sufficient to satisfy the requirements of the Mahomedan law. The observations in Sarabai v. Rabiabai I.L.R(1905) 30 Bom. 537; 8 Bom. L.R. 35, Ful Chand v. Nazab Ali Chowdhry I.L.R(1008) Cal 184 and Asha Bibi v. Kadir Ibrahim I.L.R(1909) Mad. 22 bearing on the point support this view. I am, therefore, unable to agree with the Magistrate that the talaknama is invalid.

4. Taking the talaknama to be valid, the question is whether any case for the reduction of the amount of maintenance is made out. The talaknama states in terms that one of the reasons for the divorce was the fact that the wife had obtained an order for maintenance. The child whose maintenance is obligatory upon the present petitioner is said to be about three years old. The mother is entitled to the custody of the child and it is not disputed before us, and indeed it cannot be disputed, that the petitioner is bound to provide adequate maintenance for the child. No doubt at first sight it would appear that some reduction might fairly be made in favour of the petitioner. But having regard to the circumstances under which this talaknama came to be executed and to the necessity of keeping the child with the mother, I do not think that any reduction would be appropriate.

5. On these grounds, I would not reduce the amount of maintenance which was awarded in the first instance for the wife and the child, but would allow that order to stand making it clear that it is for the maintenance of the child only.

6. I would discharge the rule.

Hayward, J.

7. I concur that no reason has been shown lot reducing the maintenance granted by the Magistrate. It is true that that maintenance was granted both for the infant child and the wife, but it would, in my opinion, only be sufficient for the maintenance of the infant child even if supported by the opponent not as a wife but as a third party as pointed out by the learned Sessions Judge.

8. It has been argued that the wife has been duly divorced and is therefore in the position of a third party. It is not strictly necessary in the view taken of the sufficiency of the maintenance to decide the question. There is, however, a clear divorce in writing registered which could leave no doubt whatever as to the intention to divorce the wife. It is also clear that knowledge of this intention was brought to the notice of the wife not many months afterwards by these very proceedings taken before the Magistrate. It seems to me that the divorce , was wrongly held to be invalid by the Magistrate and that the correct view of the matter was taken by the learned Sessions Judge. It would appear that there is no provision requiring that the divorce should be pronounced in the presence of the wife or that it should be immediately communicated to her under Mahomedan law, and these views find support in the recent dicision of Sarabai v. Rabiabai I.L.R(1905) 30 Bom. 537; 8 Bom. L.R. 35 in this Court, which was approved by the Calcutta High Court in the case of Ful Chand v. Nazab Ali Chowdhry I.L.R(1908) Cal. 184 and by the Madras High Court in the case of Asha Bibi v. Kadir Ibrahim I.L.R(1909) Mad. 22.

9. The rule, therefore, should, in my opinion, be discharged.


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