1. The main question that arises for consideration in this Second appeal is whether in fact the 1st plaintiff was divorced by her husband as alleged by him in his notices Ex. A. 3 dated 12-5-1960 addressed to Sri Md. Osman and Ex. A. 6 dated 16-7-1960 addressed to Sri Abdul Waheed Ovasi.
2. To appreciate the point involved, whether the divorce of the 1st plaintiff by her husband the defendant takes effect from the date of the notice at least, in view of the denial by the wife (1st plaintiff) that she was never divorced as alleged in the notices on the night of the Nikah, it is necessary to state the relevant facts. The 1st plaintiff was married to the defendant (appellant) on 17-5-50 and the prompt dower fixed at Rs. 50/- was paid then and there at the time of the marriage. It is her case that her husband consummated the marriage and that a son (2nd plaintiff) was born to them on 31-3-60 and that subsequently the defendant neglected her and their son and refused to maintain them and then came forward with a false story in the notices issued by him that he had divorced her on the very day of Nikah in order to avoid the liability to maintain her and their son.
3. In this appeal were are not concerned with the claim of Rs. 2, 500/- the value of a house and the value of 5 tolas of gold, as that formed the subject matter of another appeal before the lower Appellate Court in A. S. No. 67/60. This Appeal (S. A. No. 578/64) is preferred by the defendant as the Court below confirmed the decree of the trial court in respect of the maintenance claims of the two plaintiffs. The defendant resisted the action for maintenance on the ground that Talak was pronounced on 17 the May 1950 itself, the day of Nikah and that he had absolutely no conjugal relationship with her so as to entitle her and the 2nd plaintiff born to her to demand maintenance form him. Negativing the contention of the defendant that he had divorced his wife on the day of Nikah itself and that the second plaintiff was not born out of his loins, the lower appellate Court confirmed the decree of the trial Court granting maintenance at the rate of Rs. 30/- per month to the 1st plaintiff and Rs. 10/- per month to the 2nd plaintiff.
4. Mr. Jahangir Ali, learned counsel for the appellant contended that the courts below have ignored the accepted principles of Muhammadan Law in holding that the notice served by the defendant does not operate as declaration of divorce by the husband from the date of the notice of his wife and as such the decree under appeal is liable to be set aside. The 1st plaintiff significantly enough in her plaint averred that when she demanded maintenance from her husband he sent her a notice on 12 the May 1960 (Ex. A. 3) with an 'incorrect statement, that she has been divorced on the date of the marriage itself. So far as the defence of the defendant that he had divorced his wife on 17-5-50, the date of Nikah is concerned, the Courts below have not chosen to rely on the evidence placed by him and accepted the plea of the plaintiff that she was never divorced on the day of marriage as alleged by her husband and for the firs time the story of divorce was trotted out in the notice. Ex. A. 3 dated 12th May 1960. The defendant, it may be noticed, followed it up by issuing another notice (Ex. A. 6) dated 16-7-1960 reiterating his stand that he had divorced his wife on 17th May, 1950 itself. Since the courts below have concurrently held on the evidence on record, that the defendant did not divorce his wife as contended by him on 17-5-50. I am unable to interfere with this finding of fact. But the main question remains whether the divorce would take effect from the date of notice although there is the denial by the wife that she has been divorced as alleged in the notice on 17th May, 1950 and the subsequent notice.
5. A Division Bench of the Allahabad High Court in Asmat Ullah v. Mt. Khatun Unnissa, Air 1939 All 592 in a somewhat similar case heaving regard to what is stated in Machaghten's Principles and precedents of Muhammadan Law (1890) Edn, at page 296, held that where a husband says that he has divorced his wife and the wife denies that she has been divorced, the divorce should be held to take effect form the date on which the statement was made.
6. In a maintenance proceeding under S. 488 Cr. P. C. initiated by a Mahomedan Wife against her husband, where the husband in the counter pleaded divorce, it was held by Sruyanarayana Rao, J. in Wahab ali v. Qamro Bi, AIR 1951 Hyd. 117 that if the court comes to the conclusion that the divorce pleaded is not proved such a statement in the written statement does operate as an expression of divorce by the husband and comes into effect from that moment.
7. Shah, J. in Chand CI v. Bandesha, : AIR1961Bom121 where to an application for maintenance under S. 488 Cr. P. c. by a Mahomedan wife, the husband filed written statement contending that he had already divorced his wife about 30 years ago, held that even though such a statement of divorced is not proved, it still operates as declaration of divorce as form the date of written statement and the wife thereafter will be only entitled to maintenance for the period of Iddat I. e. 3 lunar months form the date of the written statement.
8. To a similar effect is the view expressed by Mulla, J. in Abdul Shakoor v. Smt Kulsum Bibi, (1962) 1 Cri LJ 247 (All).
9. It is thus manifest that the Mahomedan law confers specials right on the husband and favours the husband more than the wife giving liberty to the husband not only to divorce the wife orally in the manner provided for under the Mahomedan Law, but also issue a notice or file a written statement in defence to a maintenance claim and where such a statement in writing is made that he had divorced his wife in the past long prior to the action brought by the wife, the statement of divorce made either by a notice or in a written statement itself amounts to a declaration of divorce as on that date, in which the said statement was made. When the Muhammadan Law permits such a course of action putting the husband in a privileged position and favours him with a special right in the matter of divorce which right or privilege is denied to his spouse, effect shall be given to it without imparting notions of discrimination or the divorce laws applicable to Hindus or Christians. Therefore, the claim of the wife for maintenance has been wrongly upheld by the Courts below contrary to the principles of Muhammadan Law and the decree in so far as it relates to the maintenance granted to the 1st plaintiff has necessarily to be set aside. She will, however he entitled to maintenance at the rate determined by the Courts below for the 3 on the period of Idddat form the date of the first notice i.e. 12-5-60.
10. So far as the maintenance awarded by the Court below to the 2nd plaintiff is concerned, it has to be borne in mind that he was born on 31-3-60 and the notice Ex. A. 3 was issued subsequently on 12-5-60. As already observed the Courts below have rejected the story of the defendant that the 2nd plaintiff was not born out of his loins and therefore the maintenance awarded to him shall stand.
11. Mr. Bhaskara Rao appearing for the respondent contended that the 1st plaintiff would be entitled to past maintenance i.e., for the period prior to the date of Ex. A. 3 and to that extent at least the decree of the Court below relating to the maintenance awarded to her must be confirmed. It is no doubt true that the husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders, but nevertheless she will not be entitled to past maintenance unless the claim is based on a specific agreement (See Abdool Futteh v. Zabunnessa, (1881) ILR 6 Cal 631).
12. In the result, the appeal preferred by the defendant to the extent indicated above is allowed and is dismissed in other respects. The parties will bear their own costs.
13. Appeal partly allowed.