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Sattar Sheikh Vs. Fazalu Bibi and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1975CriLJ1146
AppellantSattar Sheikh
RespondentFazalu Bibi and anr.
Cases ReferredChandbi v. Bandesha
Excerpt:
- .....present at that time. the document, however, shows the clear intention of making divorce from that date as talak-i-bain. in that view of the matter, the talak in this case became effective from the date of its execution and snapped the marriage tie between the petitioner and the opposite party from that date. the application by the petitioner on 22-12-69 is therefore, not maintainable. on that ground alone the order of the learned magistrate allowing maintenance to her will be set aside.4. mrs. moitra, appearing for the petitioner, however, submits that the talaknama having been executed in the absence of the wife, she is entitled to maintenance upto the period of her acquiring knowledge of the talak by communication of that to her. the talak pronounced in the absence of the wife takes.....
Judgment:
ORDER

A.K. De, J.

1. This petition is by the husband. The opposite party filed an application under Section 488 of the Code of Criminal Procedure On 22-12-69 claiming maintenance from the petitioner her husband at the rate of Rs. 80/- per month, She stated that she lived in her husband's house for sometime, but was driven out by him after assaulting her mercilessly and that he is not maintaining her from that date though he has sufficient means.

2. The husband filed show-cause on 20-6-1970 stating that he divorced the petitioner by executing a deed of Talak on the 5th of Jaistha 1376 B. S. and that she is not entitled to claim any maintenance from him The learned Magistrate by his order dated 13-1-1973 allowed the wife's petition directing payment of Rs. 50/- per month as maintenance from the date of filing of her application i.e., 22-12-1969. He has rejected the plea of the husband that the petitioner was divorced by him. Against that order the husband moved the Sessions Judge in an application under Sections 435 and 438 of the Code. The learned Sessions Judge by his order dated 26-6-1973 has rejected that petition refusing to make a reference to this Court, The husband has moved this Court filing this application under Section 439 of the Code challenging the legality of the learned Magistrate's order.

3. Under Section 488 of the Code of Criminal Procedure a wife may claim maintenance from a husband. Existence of relationship of husband and wife between the applicant and the opposite party is necessary for filing an application under Section 488. The husband submits that he divorced the petitioner executing a Talaknama on the 5th Jaistha 1376 B. S. and that he sent intimation about the Talaknama by sending a letter in a cover, Ext. 1 bearing post mark '24-5-1959'. The instant application was filed on 22-12-1969 by the wife. If it is held on the Talaknama that the marriage tie between the petitioner and the opposite party came to an end on and from the date of execution of the Talaknama, Ext. A, the present application will not be maintainable at the instance of the wife on the ground that she ceased to be the wife of the petitioner from before 22-12-1969. Paragraph 313 of Mulla's Principles of Mahomedan Law, 16th Edition is that in the .absence of words showing different intention, a divorce in writing operates as an irrevocable divorce (Talak-i-bain) and takes effect immediately on its execution. Ext. A is the Talaknama. It is addressed to the wife opposite party. It recites that the husband is divorcing the wife in presence of village Salis in an irrevocable manner. It no doubt recites that the wife is present at the time of giving of the Talak. But the evidence is that she was not present at that time. The document, however, shows the clear intention of making divorce from that date as Talak-i-bain. In that view of the matter, the Talak in this case became effective from the date of its execution and snapped the marriage tie between the petitioner and the opposite party from that date. The application by the petitioner on 22-12-69 is therefore, not maintainable. On that ground alone the order of the learned Magistrate allowing maintenance to her will be set aside.

4. Mrs. Moitra, appearing for the petitioner, however, submits that the Talaknama having been executed in the absence of the wife, she is entitled to maintenance upto the period of her acquiring knowledge of the Talak by communication of that to her. The Talak pronounced in the absence of the wife takes effect for the purpose of her getting alimony from the date of communication of that to her. The Talak takes effect though not communicated to her; but for the purpose of dower and alimony it is necessary that the Talak should come to her knowledge or she is informed of it. In this case the Talak which the husband gave in the absence of the wife came to her knowledge when the husband filed his show-cause in court on 20-6-1970 and oh that date, it appears from the order-sheet the wife was present in court. The order of that date reads as follows:

Both parties present. Seen the show-cause by O. P.

5. It is thus clear that the wife came to know of the divorce at least on 20-6-1970. But her claim for maintenance for the period from 22-12-1969 to 20-6-1970 cannot be allowed as I have already pointed out that the Talak in this case was given by a document in writing which was executed long before 22-12-1969 in an irrevocable manner addressed to the wife herself. The Talaknama is in a customary form as it is in the form of a declaration addressed to the wife and is manifest. It can be easily read and comprehended and the intention to divorce is clear from the declaration. This is the view expressed in the case of Mustt. Sarabai v. Rabiabai, reported in (1905) ILR 30 Bom 537. I am in respectful agreement with that view. Mrs. Moitra referred to two -cases, namely, Areekkal Abdurahiman Musliyar Rahim v. Neliyaparambath Ayissu, reported in : AIR1962Ker234 and the case of M. M, Abdul Khader v. Azeeza Bee, reported in (1944) 1 Mad LJ 17 : (1944) 45 Cri LJ 672 and contends that a Talak is not effective as against the wife if it is given in her absence till it is communicated to her and that she is entitled to maintenance upto the date of her knowledge of the Talak. These cases, in my opinion, do not come to any aid of the opposite party. It does not appear from the facts of any of the two cases that date of effect of Talaknama in writing fell for consideration of the court or that it was held that the Talaknama when executed in writing would be effective as against the wife, if it is given in her absence, only on communication to her. In the Kerala case the wife admitted that she knew about the divorce from before filing of the application. In the Madras case, as the facts go to show, the Talak was not in writing. The date of the Talak is also not in the report showing that it was anterior to the date of filing of the application. Her contention that the opposite party is entitled to maintenance at -least upto 20-6-1970 cannot, therefore, be entertained.

6. Mrs. Moitra contends further that the trying Magistrate having come to the conclusion that the Talak was not given, after discussion of the evidence, his finding in that respect cannot be disturbed in this revisional application. The learned Magistrate has, however, fallen into error in going into the question as to whether or not Talak was given as stated in the document, Ext. A when it was not disputed that the husband executed that document, Ext. A, The personal law of a Muslim favours a husband and permits him to divorce his wife either orally or in writing. The validity or otherwise of the Talaknama, on discussion of the oral evidence on the point, does not arise when execution of talaknama is not disputed. The question which the learned Magistrate should have considered was whether or not Talaknama was executed by the husband. When that had been proved and in this case not challenged, the learned Magistrate should not have further gone into that question and should have held that there was a Talaknama. It is pertinent here to refer to the observations of Shah, J., as His Lordship then was in the case of Chandbi v. Bandesha, reported in : AIR1961Bom121 which are as follows:

Mahomedan law, however, seems to favour a husband more than a wife and it has given liberty to the husband not only to divorce his wife orally in the manner set out in the Mohamedan Law, but also by writing and there are authorities to show that if a Mahomedan husband makes a statement that he had divorced the wife some time in the past and the wife denies it, then the statement itself should be regarded as amounting to a declaration of divorce as on the date on which the statement is made. This may sound very strange to a layman. Nevertheless, if the Mahomedan Law allows this kind of latitude to a Mahomedan husband, it must be given effect to.

In the instant case the husband made a statement divorcing the opposite party in the document Ext. A. It should be regarded as amounting to a declaration of divorce by him of his wife. This contention of Mrs. Moitra is therefore, not en-tertainable,

7. In the result, I make the Rule absolute, set aside the order of the learned Magistrate dated 31-1-1973 in Misc. Case No. 5/69 and reject the petition of the opposite party under Section 488 of the Code of Criminal Procedure before the said Magistrate as not entertainable. Rule made absolute.


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