NATHOO KHAN Vs. STATE OF U P

JUDGEMENT

(1.) THIS reference has been made by the learn ed First Additional Sessions Judge, recommending that the order of the Magistrate issued under Section 488 of the Code of Criminal Pro cedure, 1898, be partially quashed. The woman filed an application for maintenance claiming herself to be the wife of applicant Nathoo Khan and claimed maintenance also for the child. It was pleaded on behalf of the husband that on the date the application was moved by Smt. Shafiqan, she was not his wife as he had already divorced her. Learned Magistrate held that there was no earlier divorce and that it occurred only on May 22, 1973, the date on which the husband had filed the written statement in the case, and that the wife was entitled to maintenance for the period of Iddat which according to him would last for six months with effect from the date of divorce. He allow ed maintenance also for child. The learned Sessions Judge held that divorce had taken place not from the date of filing of the written statement but from an earlier date, viz., March 17, 1973. He was further of opinion that once a woman is divorced she ceases to be a wife and thus not entitled to claim maintenance under Section 488, Cr.P.C. He has accordingly recommended that the order allowing maintenance to the wife be quashed.

(2.) THE learned Sessions Judge has obviously gone wrong on both the points. The learned Magistrate had held that Ext. Kha-1, which according to the husband was the document exhibiting 'Talaq', was not a document exhibiting 'Talaq' but only a deed showing relinquishment by the wife. The words in that document which has been read but over here, certainly are not expressive of the fact that the husband had by that document given the Talaq. The learned Magis trate has taken the view that the averment in the written statement amount to Talaq. It is not necessary for me to go into the correct ness of this finding of the trial court as it was never challenged by the wife and even now there is no revision by the wife challenging the finding. I accordingly, for the purposes of this case, accept that the Talaq had come into existence as found by the learned Magis trate.

(3.) IN the matter of Din Mohammad I.L.R. 5 Alld. 226, it was laid down: