AYISSU Vs. AHAMMAD

JUDGEMENT

(1.) This Revision Petition arises out of a maintenance application by the minor wife represented by her mother with whom she is living, claiming maintenance from the respondent under S.488 Crl. P.C.

(2.) The respondent married the petitioner on 1-7-61 and she was taken to his house where for some time they were living. Later the respondent left for Saudi Arabia and thereafter it is stated he has neglected to maintain her. The respondent denied liability to pay maintenance on the ground that he had divorced the petitioner on 15-7-62 in the presence of the Khazi of the local Jumayath Mosque. The Khazi was examined on the side of the respondent but he gave evidence that the respondent had authorised him on 15-7-62 to pronounce Talak and divorce the wife on receipt of the Mahar amount from the parents of the girl, but as it was not paid he had not pronounced Talak and the marriage is still subsisting. The respondent did not get into the box and give evidence that divorce had, in fact, been effected. The learned Magistrate negatived the plea of the respondent, but ordered him to pay maintenance at the rate of Rs. 30/- from the date of filing the petition till the date of filing of the written statement by the respondent alleging divorce.

(3.) The question that arises here is as to what is the legal effect of the husband stating in his written statement that he had already divorced his wife, if the court comes to the conclusion that the divorce pleaded is either not proved or is proved to be false. In other words whether the written statement itself could operate as a divorce from the date the written statement is filed in court. Certain authorities were placed before me which have held that whenever the husband makes an unambiguous declaration of divorcing his wife it would amount to a legal and valid divorce under the Hanafi law.