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M.M. Abdul Khader Vs. Azeeza Bee - Court Judgment

LegalCrystal Citation
Subjectfamily
CourtChennai
Decided On
Reported inAIR1944Mad227
AppellantM.M. Abdul Khader
RespondentAzeeza Bee
Cases ReferredKathuyumma v. Urathel Marakkar
Excerpt:
- - the case of the petitioner before the lower court was that she was the lawfully wedded wife of the counter-petitioner, that they were living as husband and wife for two and a half years and that her husband has neglected and failed to maintain her and that she was entitled to be maintained by him......relied on by him, namely, kathuyumma v. urathel marakkar : air1931mad647 that there could be a valid thalak in the absence of the wife but it would come into operation only from the date on which the wife comes to know of it. in sarabai v rabia bai (1906) 30 bom. 537 it was pointed out that a thalak if it is executed in the presence of a khazi and attested by witnesses, though not communicated to the wife, would be a valid one. even in the passage from ameer ali's book referred to in kathuyumma v. urathel marakkar : air1931mad647 it is stated that there could be a valid thalak given by a husband in the absence of the wife. but all that has been stated is that it must be communicated to the wife before it could be acted upon. in this case there is the evidence of the wife who examined.....
Judgment:
ORDER

Kuppuswami Ayyar, J.

1. The petitioner is the counter-petitioner in M. P. No. 102 of 1943 on the file of the Third Presidency Magistrate, Madras, filed by his wife for recovering maintenance from him. The case of the petitioner before the lower Court was that she was the lawfully wedded wife of the counter-petitioner, that they were living as husband and wife for two and a half years and that her husband has neglected and failed to maintain her and that she was entitled to be maintained by him. His plea was that she had been divorced by him. There was a thalaknama executed in the presence of a khazi attested by two witnesses. The, Magistrate found that it was not a valid divorce because it had not been communicated to the wife. It was pointed out even in the very ruling relied on by him, namely, Kathuyumma v. Urathel Marakkar : AIR1931Mad647 that there could be a valid thalak in the absence of the wife but it would come into operation only from the date on which the wife comes to know of it. In Sarabai v Rabia Bai (1906) 30 Bom. 537 it was pointed out that a thalak if it is executed in the presence of a khazi and attested by witnesses, though not communicated to the wife, would be a valid one. Even in the passage from Ameer Ali's book referred to in Kathuyumma v. Urathel Marakkar : AIR1931Mad647 it is stated that there could be a valid thalak given by a husband in the absence of the wife. But all that has been stated is that it must be communicated to the wife before it could be acted upon. In this case there is the evidence of the wife who examined herself as P.W. 1 that she was told by the Sub-Inspector that her husband had given a thalak. As a matter of fact the husband's case was that even at the time he granted the thalak the wife's uncle, R. W. 3 was present and that he even signed the thalaknama as father of the girl. P.W. 1 her. self stated that she married her husband against her father's wishes and on the advice of this uncle. It was therefore thought enough if the uncle was present at the time of the execution of the thalak and his signature taken. Whatever it be, there is the definite admission of P.W. 1 that she came to know of the thalaknama from the Sub-Inspector before she was examined, which was on 5th May 1943. So at any rate from the date on which the Sub-Inspector informed her the divorce had come into effect. The wife will therefore, not be entitled to maintenance at any rate after 5th May 1943 as she came to know of the thalak before the date. The order will be modified by directing the husband to pay the respondent a monthly maintenance of Rs. 6 only from 22nd February 1943 till 5th May 1943 as the records do not indicate or what date the Sub-Inspector informed her and admittedly she was informed before 5th May 1943.


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