N.K. Sen, J.
1. This is a reference under Section 438 of the Code of Criminal Procedure made by the Sessions Judge of Burdwan recommending that the order passed under Section 488 (1) of the Code of Criminal Procedure granting a monthly maintenance allowance to Hadisa Bibi and her two minor children be set aside.
2. Hadisa Bibi's case in the court below was that she was married to the opposite party, Wahad Baksh Seikh in the year 1358 B.S. in Nika form. There were two children born to her who are now minors. There was a duly registered Kabinnama fixing a dower. Wahad Baksh Seikh has another wife and two daughters and a son were born to her. Hadisa Bibi was living with her husband, Wahad Baksh Seikh since her marriage. Since Ashar 1362 B.S. Wahad Baksh started ill-treating Hadisa Bibi in various ways and also neglected to maintain her and her children as a result of which she was forced to leave her husband and to come to the house of her father who is a poor man unable to maintain her and her two children. Hadisa Bibi claimed a sum of Rs. 30/- for herself and Rs. 20/- for each of her children per month as maintenance allowances. The marriage with Hadisa Bibi is however admitted by Wahad Baksh Seikh.
3. The case of Wahad Baksh is that she had been given Talak in the presence of witnesses and it was duly registered by the local Kazi on the very next day of his marriage with her. Wahad Baksh's case further is that Hadisa Bibi voluntarily left his protection declining to live with him unless Wahad Baksh would divorce his first wife. Wahad Baksh also denied the paternity of her two children.
4. The learned Magistrate found that the Talaknama was kept concealed from her until the matter came out in the course of the present proceeding under Section 488 of the Cede of Criminal Procedure. Accordingly the learned Magistrate allowed maintenance to Hadisa Bibi up to the date of her cross-examination when according to the learned Magistrate she first became aware of the fact of divorce.
5. The learned Sessions Judge has recommended the setting aside of the order of maintenance on the ground that valid Talaknama takes effect from the date of execution and as such however abominalble Wahad Baksh's conduct may be an application by his wife for maintenance long after the date of Talaknama is not maintainable, and even an application on behalf of the children on the basis of the present application could not be allowed.
6. The evidence in the case shows that there was a registered Talaknama, Ex. B. The learned Judge pointed out that the learned Magistrate accepted the registered Talaknama as true and valid and in the absence of words showing different' in-tention, a divorce in writing operated as an irrevocable divorce (Talak-ki-bin) and takes effect immediately on its execution. The learned Judge is of the view that in the present case the Talaknama did not show any different intention and as such the Talak became irrevocable on its execution and the validity of a written Taltiknama or its operation did not depend upon its communication to the wife. The Talak therefore, in the opinion of the learned Judge, became effective on the date of its execution and registration and although such Talak was not communicated to the wife it was in. effect an irrevocable Talak as from the date of the document.
7. I do not think in the facts of the present case the learned Sessions Judge was right in making his recommendation before this Court in the way he did. In the case of Ahmad Kasim Molla v. Khatun Bibi : AIR1933Cal27 , Costello J., held that when it was not established by theplaintiff that the existence of the Talak came to the knowledge of the defendant prior to the proceeding under Section 488, Cr. P. C., it could not be disputedthat she was entitled to maintenance up to that lime. It will be observed that the maintenance that has been awarded by the learned Magistrate is for that period only. The view taken by Costello J. also finds support from the decision of the Judicial Committee of the Privy Council in the case of Rashid Ahmad v. Mt. Anisa Khatun . This point is also discussed in the 14th Edition, of Mulla's Mahomedan Law at page 265 Article 310, where it is stated by the learned author that the Talak pronounced in the absence of the wife takes effect though not communicated to her but for purposes of dower it was necessary that it should come to her knowledge and her alimony may continue till she was informed of the divorce. This point was also discussed by Ameer Ali in his Mahomedan Law 3rd Edition page 528 where it is stated that Talak pronounced in the absence of the woman was valid but until it came to her knowledge she is entitled to her maintenance. In the present case it would be seen that if in spite of this Talak the parties lived together it could not affect the validity of the Talak but the wife was entitled to a maintenance allowance up to the date the Talak was produced in Court. The learned Magistrate's view that she was entitled to a maintenance allowance up to the date of Talaknama having been produced before the court is therefore correct and the learned Judge's view cannot be endorsed. The Reference so far as the claim of the wife is concerned must therefore be rejected and the order of maintenance in her favour confirmed. So far as the order of maintenance passed in favour of the two children is concerned, the learned Sessions Judge is also undoubtedly in error. Subsection (1) of Section 488, Cr. P. C. provides that if any person having sufficient means neglects or refuses tomaintain his wife or his legitimate or illegitimate child unable to maintain itself a monthly allowance for his wife or such child will be allowed. The learned Magistrate has accepted as a fact that the two children are the two children of Wahad Baksh Seikh and Hadisa Bibi. Indeed there is no evidence to show that they were not born of them.
8. The learned Magistrate granted only a sum of Rs. 10/- for each of the two minor children until the attainment of majority of the male child and the attainment of puberty of the female child. It seems to me that this amount is absolutely inadequate for the maintenance of the two children. I direct that a Rule be issued on the opposite party Wahad Baksh Seikh to show cause why the amount of maintenance should not be increased so far as the twochildren are concerned payable from the date of the application made before the court below up to the date of attainment of majority in the case ofmale child and the attainment of puberty in the caseof female child. Let this Rule be served on Mr. C.F.All who has appeared in support of the referenceof Wahad Baksh Seikh. Let the Rule be made returnable on the Friday week, when this matter beplaced before me for hearing. In the result the reference is rejected. Let a copy of this Rule be alsoserved on Wahad Baksh Seikh.