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ShamshuddIn Vs. Zamina Bibi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1962CriLJ124
AppellantShamshuddin
RespondentZamina Bibi and anr.
Excerpt:
.....applicant became effective, plus the 'three months allowed for iddac period. a registered letter to his wife on 20-2-1959, he maintains that it contained a notice which was to operate as a divorce if she failed to return to him within one week but the wife on the other hand claims that the letter contained only 50 pieces of paper and no notice of divorce. in the present case the wife was informed of the divorce by 10-3-1959 at the latest which was well within the period of iddat (starting from 2-3-1959). i may mention that i can see n0 justification for calculating the period of iddat from the date of the wife's knowledge (as has been done by the learned magistrate) instead of from the date of the divorce itself......but the wife on the other hand claims that the letter contained only 50 pieces of paper and no notice of divorce. on 5-3-1959 however the applicant sent another registered notice, reproducing the text of the previous notice and asserting that the divorce was effective from 2-3-1959: and this second notice was received on behalf of smt, zambia bibi by some relation of hers named muuawwar ali. in the circumstances. i find it very difficult to believe that the with remained .ignorant of the fact that her husband had divorced her, at any rate after the receipt of this second notice accepted by munawwar ali on 10-3-1.959.certain rulings have been cited before me to show that a muslim wife is entitled to maintenance up to the time when she is informed of a divorce that is pronounced in her.....
Judgment:
ORDER

W. Broome, J.

1. This criminal revision application iS directed against orders passed by the S.D.M. Of Chandauli .West (District Banaras) on an application for realisation of maintenance awarded Under Section 488, Cri. P. C

2. The opposite party Smt. Zamina Bibi granted Rs. 50/- the month as maintenance for herself and her shiee sons by an order dated 37-1-1959. On 27-7-1959 she applied for payment of the arrears that had accrued) but the husband Shamshuddin (the present applicant) pleaded in reply that be had divorced her by means of a notice sent on 20-2-1959. The learned Magistrate came t0 the conclusion that the divorce was not effective until 21-8-1959, when it came to the notice of the wife through tile assertion: made by Shamshuddin in court and he accordingly allowed her maintenance upto 21-11-1959 (i.e. Upto 21-8-1959 plus three months to cover the period of Iddat).

3. On behalf of the opposite party, Smt. Zamina Bibi, an attempt has been made to argue that the Magistrate should have disregarded the divorce altogether. If, is contended that an order awarding maintenance Under Section 488, CrIPC can only be varied or discontinued in accordance With the provisions of Section 489, Cri. P, C. and that cl, (i) of Section 489 relates not to discontinuance but only to variation of the amount due to a change in pecuniary circumstances, while el. (2) of the Section can be invoked only when a decision is given by a cornpone civil court, it is suggested therefore that an oral divorce pronounced by a Muslim husband cannot be acted upon by a Magistrate as the basis for discontinuing a maintenance allowance unless the husband obtains a declaration from a competent civil court 'to confirm the fact that he has divorced his wife.

But the case of Shah Abu Ilyas v. Ulfat Bibi ILR 19 All '50 certain observations in which were relied upon by the opposite party in support of this argument, actually provides authority for the opposite view, for it was laid down therein that a court which is asked to enforce an order for maintenance Under Section 488 is bound to entertain a plea of divorce and if it finds that the plea is established must decline to enforce the maintenance order for any period subsequent to the date when the marriage ceased to subsist between the parties (making allowance, in, the case of Muslims, for tile expiry of the period of Iddat). This view, if I may say so with respect, offers an- eminently reasonable assessment of he scope of Section 488: under this Section a Magistrate can order a person to make a monthly allowance for the maintenance of his wife but obviously if the wife ceases to be a wife by reason of divorce, the order for her maintenance must automatically cease to be enforceable thereafter.

4. I am satisfied that the learned Magistrate was justified in ordering payment of the full amount of maintenance (payable for the wife as well as for he children) upto the date when all divorce pronounced by the applicant became effective, plus the 'three months allowed for Iddac period. But it has to be seen what was the date when the divorce took effect, From the record it appears that the applicant sent; a registered letter to his wife on 20-2-1959, He maintains that it contained a notice which was to operate as a divorce if she failed to return to him within one week but the wife on the other hand claims that the letter contained only 50 pieces of paper and no notice of divorce. On 5-3-1959 however the applicant sent another registered notice, reproducing the text of the previous notice and asserting that the divorce was effective from 2-3-1959: and this second notice was received on behalf of Smt, Zambia Bibi by some relation of hers named Muuawwar Ali. In the circumstances. I find it very difficult to believe that the with remained .ignorant of the fact that her husband had divorced her, at any rate after the receipt of this second notice accepted by Munawwar Ali on 10-3-1.959.

Certain rulings have been cited before me to show that a Muslim wife is entitled to maintenance up to the time when she is informed of a divorce that is pronounced in her absence; but this question can assume importance only in those cases in which information is conveyed after the expiry of the three month of Iddat, for she is in any case entitled to maintenance for this period alter the pronouncement of the divorce. In the present case the wife was informed of the divorce by 10-3-1959 at the latest which was well within the period of Iddat (starting from 2-3-1959). I may mention that I can see n0 justification for calculating the period of Iddat from the date of the wife's knowledge (as has been done by the learned Magistrate) instead of from the date of the divorce itself. My conclusion therefore is that maintenance can be claimed by Smt. Zamina Bibi as the petitioner's wife upto 2-6-1959, when the period of Iddut expired.

5. Accordingly I modify the order passed by the learned S. P. M. and direct that Smt. Zamina Bibi shall be paid maintenance all the rate of Us 50/- per month only upto 2-6-1959 (and not 21-11-1959 as ordered by the Magistrate). Regarding the subsequent period (from 3-6-1959 onwards) the Magistrate has still to determine what amount can be claimed as maintenance for the three children and the file may be returned t0 him at an early date so than he may hear the parties on this question and pass suitable orders.


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