YUNUS Vs. SHABBIRAN

JUDGEMENT

(1.) This a petition under section 482 of the Code of Criminal Procedure for quashing proceedings under section 125 thereof including the orders dated February 20, 1993 and March 15, 1994 passed by Shri A.K. Chaturvedi, Metropolitan Magistrate, Shahdara, and Shri S.C. Mittal, Additional Sessions Judge, Shahdara, respectively. The petitioner Mohd. Yunus was married to respondent Smt. Shabbiran on January 15, 1995 according to the Muslim rites and ceremonies. Out of the wedlock two sons and two daughters were born. The respondent filed an application under section 125 Code of Criminal Procedure against the petitioner for maintenance on the ground that she was turned out of the matrimonial home by the petitioner at the instigation of her mother-in-law and other relatives. Along with the application for maintenance, an application for grant of interim maintenance was also filed. The Metro- politan Magistrate by his order dated February 20, 1993 directed the petitioner to pay a sum of Rs.400.00 per month to the respondent from February 20, 1993 itself, i.e., from the date of the order. The petitioner, not satisfied with the order of the Metropolitan Magistrate, filed a revision, inter alia, on the grounds that the respondent was not entitled to the grant of maintenance as he had already divorced her and that the Metropolitan Magistrate did not have the jurisdic- tion to try the petition as neither the marriage was per- formed at Delhi nor any of the parties ever resided at Delhi. The learned Additiional Sessions Judge, Shahdara, by order dated March 15, 1994 rejected the revision petition and main- tained the order passed by the learned Metropolitan Magis- trate. The petitioner not being satisfied with the order of the learned Additional Sessions Judge has moved the instant petition under section 482 challenging the order granting interim maintenance to the respondent.

(2.) Learned counsel appearing for the petitioner sub- mitted that the petitioner had divorced the respondent and the respondent, being a Muslim divorced wife, was not entitled to maintenance under section 125 Code of Criminal Procedure He also submitted that the Metropolitan Magistrate did not have the jurisdiction to entertain the application under section 125 of the Code of Criminal Procedure as neither the marriage was solemnised in Delhi nor the parties reside at Delhi.

(3.) I have considered the submissions of the learned counsel for the petitioner and have gone through the record. The question whether the petitioner had divorced the respon- dent is concerned, the same same cannot be gone into at this stage as there is no evidence to support the plea of the petitioner. The parties have yet to lead evidence in support of their respective stands. Learned counsel for the peti- tioner, however, submitted that no evidence was required to prove divorce. He submitted that in the written statement filed by the petitioner in reply to the application under section 125 Code of Criminal Procedure it is specifically mentioned that the petitioner had divorced the respondent by uttering the word 'talaq' thrice in her presence. He further submitted that in law stating the factum of 'talaq' in the written statement is enough as it is an acknowledgement of talaq which cannot be ignored and has to be given effect to. In support of his submission he relied upon the decision of the Allahabad High Court in Asmat Ullah and others v. Mt. Khatun-Unnisa and others, AIR 1939 All 592. In order to appreciate the submission of the learned counsel it will be necessary to refer to para 2 of the written statement where the petitioner has raised the plea of divorce. Para 2 of the written state- ment reads as follows :-