1. The only question which calls for decision upon the petition of Syed Saib is, whether the Magistrate was right in holding that the counter-petitioner Meeram Bee, who was the wife of Syed Saib, but is alleged to have been divorced by him in the irrevocable form by pronouncement of three talaks, is entitled during the period of her iddat, supposing such divorce is proved, to the benefit of an order for maintenance which had been made in her favour before the pronouncement of talak. The Magistrate relies upon the decisions in Gulam Mohidin v. Kasara Bibi Weir's Criminal Rulings Vol. II p. 617 In the matter of the petition of Din Muhammad 5 A. n226 and Shah Abu Ilyas v. Ulfat Bibi 19 A.p 50. in support of his view, but it is urged by the Vakil for the petitioner that these cases do not lay down the law correctly. His contention would be valid if it can be said that according to Muhammadan law a woman irrevocably divorced ceases even before the expiry of her iddat to be the wife of the person who so divorced her. And here it may be stated at once that there can be no question but that Meeram Bee is entitled under the Muhammadan law to maintenance during her iddat from the petitioner. A Magistrate, however, exercising summary powers conferred on him by Section 488, Code of Criminal Procedure, can make or enforce an order to that effect only if the relationship of husband and wife exists between the two, but in order to determine this, and only to that extent, we must ascertain the effect in Muhammadan Law of an irreversible divorce on conjugal relations. But before going any further, we may mention that some doubt was entertained at one time as to whether it is competent to a Magistrate to refuse to enforce an order duly made under Section 488, Criminal Procedure Code, on the ground that the relationship of husband and wife has ceased to exist since the date of the order but a series of decisions have held, and in our opinion, rightly held, that the Magistrate not only has the power, but is bound to abstain from enforcing his order under such circumstances see Shah Abu Ilyas v. Ulfut Bibi 19 A.n 50 where the authorities are discussed).
2. We may say at the outset that the question under consideration is by no means easy of determination and can only be satisfactorily determined by taking into account the extent and the mode in which an irreversible talak affects those marital rights, obligations and disabilities which go to constitute in law the relationship of husband and wife. For we shall find that the language of a definition such as that of marriage and talak, as given in any particular text book or of an argument advanced in it in support of a certain right or disability of the wife or the husband during the period of iddat, however useful as a guide, does not by itself afford a certain basis for a (conclusion. Now the rights, obligations and disabilities ordinarily incident to a valid and subsisting marriage may be thus summarised. Each of the parties has a right to the conjugal society of the other; in the event of death of one of them the survivor is entitled to a share of the inheritance as an heir; the husband is entitled to a certain degree of control over the liberty of movement of the wife; the wife is entitled to maintenance and residence and to be paid such portion of her dower as is payable by the husband on demand but not of the 'deferred' portion: the husband can have three more wives at the same time and not more, but the wife cannot marry any other person; neither of them can marry within certain degrees of relationship of the other on account of what is called prohibition for affinity--which prohibition is of a permanent character--for instance one cannot marry the mother of the other; the husband can marry three other women in addition but cannot associate together by marriage his wife and her sister or certain other relations of hers; and if there be children born in wedlock, or on the marital bed' to translate an Arabic phrase, the father is bound to maintain them, and when they no longer need the maternal care he and in his absence his relatives have a right to their custody until they are grown up. To dissolve the marriage tie is a right recognized in the husband and we have had occasion in the case of Asha Bibi v. Kadir Ibrahim Rowther 3 Ind. Cas. 730 to explain the theory on which this right is founded. Such dissolution of marriage is called talak which is usually translated as divorce. Talak, however, is regarded by the Hanafis as a dangerous act from a purely religious point of view, because it puts an end to marriage, an institution in which temporal and spiritual concerns not only of the husband and the wife but of the children and of the society in general are involved, as is pointed out in the case just mentioned. The law while it permits divorce, having regard to the fact that some times it may not be possible for the parties to live together in peace and harmony, fulfilling all those religious and moral duties which are associated with married life, insists not only that there shall be some guarantee that the husband should not be acting from caprice or upon a momentary provocation, but takes care that the interests of the children that may be born in consequence of the marriage should not be jeopardised. The first precaution lies at the root of the distinction between a revocable and an irrevocable divorce and the enforcement of the iddat, or the period during which a woman whose marriage has been dissolved by divorce or death is bound to wait before she is free to marry again, is a sufficient safe-guard ensuring correct ascertainment of the paternity of the child that may be born to the woman after such dissolution. So far as the legal effect of a divorce is concerned the rule as to the time when it is to be pronounced, namely during the state of purity of the wife, has only a theological significance and the two important forms of divorce from a legal point of view are the 'Rajai', usually translate as revocable or reversible, and bayan i. e., irrevocable or irreversible A simple pronouncement of the sentence of talak once or even twice constitutes a revocable divorce which means that the husband is entitled to undo its effect if he so chooses, but he must express his intention to that effect either by words or in act before the expiry of the period of iddat which counts from the date of the first pronouncement. If he allows the period of iddat to lapse without revoking the divorce there is a complete cessation of the relation of husband and wife at the end of that period. Iddat is, as ordinarily calculated, the period of three menstrual courses, and in the case of a woman not subject to such courses it is three months; in the case of a widow iddat is of four mouths and ten days, and if a woman is pregnant, her iddat is in any case prolonged until confinement.
3. What then are the legal effects of a reversible divorce? During iddat the husband still retains his right of access to the wife, but the latter has no corresponding right until revocation to the conjugal society of the former. No doubt it would be proper on the part of the husband before seeking the society of his wife in such predicament to revoke the divorce formally, but this is not necessary in law; he cannot, however, compel her to accompany him on a journey, but otherwise she remains under his matrimonial restraint; she is entitled to residence and maintenance and the deferred portion of her dower becomes due. If he has three wives at one time in addition to the divorced wife, he cannot marry a fourth woman, nor can he marry such wife's sister, and if either of them dies before the afflux of iddat the survivor is entitled to a share in inheritance from the deceased. These being the incidents of a revocable divorce it is obvious that such divorce, though not without some effect on marital relations during iddat, does not absolutely put an end to the relationship of husband and wife; and in this all Sunni lawyers agree. If a divorce in this form can be said, therefore, to effectuate a dissolution of marriage, as is implied in the general definition of talak, the dissolution so caused is only tentative and prospective. The essential difference between this form of talak and an irrevocable talak, which may be effected by three pronouncements in one and the same speech, or, if separately, within the period of one month, or by the use of an emphatic expression conveying the intention to pronounce an irreversible divorce is this. The effect of an irrevocable divorce cannot, as the description implies, be recalled even during iddat. In both cases on the expiry of iddat all those relations which are incident to a marriage come to an end. But the immediate effect of an irrevocable divorce, unlike that of a revocable divorce, is to make it unlawful for the husband to co-habit with the wife, and if he co-habits with her with knowledge of the unlawfulness of the act, he becomes liable to the sentence of death--the punishment awarded for fornication. They may marry again, but if the irrevocable divorce was by three pronouncements of three talaks, the law places a further difficulty in the way of such union, namely, that before re-marriage the woman should have been married to another man and divorced by the latter after he had consummated the intermediate marriage; and if one of them dies during iddat the other gets no share in the inheritance. That being the result of an irreversible divorce according to all the Sunni Schools, the Shafeis hold that it completely and effectually severs the marriage tie, and they, therefore, on that ground would not allow, during iddat, maintenance to the woman so separated, unless she is already pregnant, and permits the husband to marry her sister for a fourth wife. The Hanafi lawyers, however, recognize the existence of the right and the disabilities just mentioned during iddat following upon an irrevocable divorce, and both the Hanafi and the Shafei lawyers recognize her, right to residence and her subjection to the custody of her husband.
4. The question now is to what we are to attribute the Hanafi law on this point, to the subsistence of the marriage tie in spite of such divorce or to some other ground. Here it is necessary to clear the ground by pointing out that the observance of iddat has no necessary connection with the completeness or non-completeness of the severance of conjugal relations. For iddat is to be observed on the death of the husband when there can be no pretence of the subsistence of a marriage, and it is not to be observed at all by a woman who has been divorced by her husband before he has had any sexual connection with her. Iddat, it should be borne in mind, is primarily imposed with a view to ascertain whether the woman is pregnant, so that the paternity of the child that is born to a woman whose marriage is dissolved may be fixed; though the rules regulating the period of iddat cannot be said to be conterminous in all cases with that object. This is a matter to which the Muhammadan Law, which recognizes legitimate descent only, attaches considerable importance, not only in the interests of the child which may be born subsequently so that its father may be made responsible for its maintenance and up-bringing, and it may not suffer the stigma of being of 'unknown descent' (Maj'hul-un-nasib) but also in the interests of the father and his relatives so that their lineage may be preserved. No doubt in cases in which iddat is imposed the woman does not recover her complete marital liberty until the period has expired but this only shows that in the Muhammadan Law the marriage tie may no longer exist as on the death of the husband, and yet some of the legal incidents usually associated with a subsisting marriage may survive for sometime. But it cannot be taken to prove the converse proposition that because some of such rights and obligations are suspended or lost, the relationship of husband and wife has necessarily ceased to exist.
5. To what then are we to ascribe in the first place the continued incapacity of the husband who has irrevocably divorced his wife to marry her sister during iddat or to marry a fourth wife if he has already three wives excluding the woman who has been divorced. It seems that the law on this point can be satisfactorily explained only upon the hypothesis, that the marriage still subsists so that the divorced woman still retains the status of wife and that is the ground on which Hedaya bases the law (see Hamilton's Grady's Edition, pp. 30 and 32.) Ibn Hammam, the author of Fathul Qudir, a well-known commentary of Hedaya, and whose opinions are undoubtedly entitled 'to an independent, wieght, however, observes in this connection (see fathul Qudir, Egyptian Edition, Vol 1, page 132), that it would be more accurate to say that some of the consequences of marriage subsist during iddat of an irrevocable divorce rather than the marriage itself. But this hardly affords any explanation of the law.
6. As to the rights of maintenance and residence these are also upheld by the author of Hedaya substantially on the same ground, that is to say, subsistence of marriage during iddat so far as some of its consequences including these rights are concerned. The argument is that one of the most important ends for which marriage is legalized is the begetting of children, and as iddat of divorce is enforced for the purpose of ascertaining whether the woman is bearing a child and she is, therefore, obliged to live under the protection of her husband, he is trot only bound to provide her with residence but also with maintenance, because maintenance is a return for the custody of the husband with reference to the chief end in view in marriage. And the Hanafi lawyers draw a distinction between this case and the case of a woman undergoing iddat of widowhood holding that the latter has no right of maintenance, because the marriage no longer subsists, while her iddat and fright to be provided with residence are based on special texts (see Hamilton, Grady's Edition p. 145). In our opinion, therefore, an irrevocable divorce does not completely destroy the relationship of husband and wife, until after the expiry of the period of iddat, and, therefore, a wife in that position is entitled during iddat to an order for maintenance under Section 488 of the Code of Criminal Procedure as held in the cases cited above. But it must be admitted that we have arrived at this conclusion after considerable hesitation. We may, however, mention that we should not have thought it necessary to deal with the Question at such length but for the fact that in none of the reported cases, brought to our notice, is the question discussed with reference to its obvious difficulties. In Gulam Mohidin v. Kesara Bibi Weir's Criminal Rulings Vol. II p. 617 the ground upon which Turner, C.J., basis his decision is that under the Muhammadan Law a wife irrevocably divorced is entitled to maintenance during iddat, but, as has already been pointed out, that does not conclude the question whether she is so entitled under the Code of Criminal Procedure. In the matter of the petition of Din Mohammad 5 A.p 226 in which Mahmood, J. considered the question in its proper aspect, the learned Judge mainly satisfied himself with quoting a passage from Hamilton's Hedaya (Grady's Edition, p. 100), which runs thus: 'Marriage is accounted still to subsist during the iddat with respect to various of its aspects such as the obligation's of alimony, residence and so forth, and hence it may lawfully be accounted to continue in force with reference to the woman's inheritance, but as soon as the iddat is accomplished a further procrastination is impossible, because the marriage does not continue in any shape whatever.' In the original Hedaya, however, the words 'such as the obligation of alimony residence and so forth'do not. occur, and apparently the Persian version which Mr. Hamilton translated has imported these words from Kifayah, a well-known commentary of Hedaya (See Fathul Qudir, Egyptian Edition, where both the Hedaya and the Kifayah are printed at pp. 3 and 4, Vol. IV). Mahmood, J., moreover, does not consider the question with particular reference to an irrevocable divorce which, as we have pointed out, differs from a reversible divorce in some important respects. Further, the passage in Hedaya corresponding to that quoted by the learned Judge, occurs in a discussion of the question as to the right of inheritance of a wife divorced by her husband in his death-illness, and the main ground on which her right as an heir is recognized is that, according to Muhammadan Law, when a man is seized of an illness which subsequently ends in his death, his heirs acquire a sort of inchoate right in his possessions during such illness and hence the husband during such sickness is not allowed by divorcing her to defeat the rights which have already begun to accrue to the wife. The case of Shah Abu Ilyas v. Ulfat Bibi 19 A.p 50 merely adopts Mahmood J.'s judgment on the point, In the matter of the petition of Din Muhammad 5 A.p 226. The revision petition must be dismissed.