ABOOBAKER Vs. KADEESA

JUDGEMENT

(1.) A Mohammedan husband who has been ordered to pay maintenance to his wife and child under S.488, Criminal Procedure Code is the revision petitioner. The petitioner married the respondent about ten years back and they were living as husband and wife in the petitioner's house. The husband was having a grievance that the wife was not given sufficient ornaments and so she was sent to her father's house to get more ornaments. While she was in her father's house the petitioner sent a notice to the Khasi of Orkatheri purporting to be a talak. On receipt of the notice there was a mediation in the house of the petitioner's father in the presence of the petitioner and his father at which it was found that the notice was not intended to operate as a divorce and did not operate as such and that the wife was to be taken back by the petitioner on payment of Rs. 165. Accordingly the wife was taken back to the petitioner's house and the amount was paid. After that the wife became pregnant and gave birth to a child on 19-6-1962. The petitioner sent Rs. 75/- through his brother to meet delivery expenses. Thereafter he neglected to maintain the wife and child and hence the petition came to be filed. The husband contended that he had divorced his wife in January 1960 by sending a written talak to the Khasi of Orkatheri. He denied the subsequent mediation and the taking back of the wife and the paternity of the child.

(2.) The petitioner, her father, two of the mediators, the muthuvalli of the Mosque and a retired school teacher and the present Khasi of Orkatheri who is the son inlaw of the Khasi to whom the notice was sent who is no more, gave evidence in support of the petitioner's case and accepting their evidence the learned Magistrate has held that the notice did not operate as a divorce and that the wife was taken back to the husband's house where they lived as husband and wife and the child was born to them.

(3.) The points urged before me in revision are: (i) that the said findings are unsupported by acceptable evidence, (ii) that even if the mediation and the resumption of the marital relationship are true as an irrevocable talak has been pronounced by the sending of the notice to the Khasi it has no legal effect, (iii) that in any view the written statement where he has stated that he had divorced his wife operates as a divorce from that date and the wife is not entitled to claim maintenance thereafter.