NATHOO KHAN Vs. RAFIQAN

JUDGEMENT

(1.) The present revision has been filed against the judgement dated 7.5.1992 passed by the Principal Judge, Family Court, Bareilly in Criminal Misc. Case No. 113 of 1991.

(2.) The facts, in brief, are that Smt. Rafiqan filed a petition for maintenance under Sec. 125 Criminal Procedure Code with the allegations that out of the wed-lock between the two, a daughter who is now 13 years old was born. Three other issues were also born before this daughter but they could not survive. The husband turned her out from his house and contracted another marriage. The wife claimed Rs.500.00 per month for herself and equal amount for daughter as maintenance. The husband admitted the factum of marriage but stated in the written statement that he has divorced Smt. Rafiqan 18 years ago and the daughter was not born out of this wed lock. The Family Court after discussion of the evidence on record came to the conclusion that Smt. Rafiqan had not been divorced and she was entitled to Rs. 300.00 per month for herself and Rs.200.00 for daughter per month from 7th Jan., 1991. Hence this revision.

(3.) I have heard learned counsel for the parties and have gone through the record carefully. The main argument for the learned counsel for the revisionist is that even if the divorce has not been proved the mere fact that the written statement of the revisionist contains a declaration of divorce is enough to enable the Court to record a finding that a divorce has been affected from the date the written statement has been filed. In support of this argument learned counsel for the revisionist has cited the decision in Chandni Vs. Bandesha, AIR 1991 Bom 121 ; and Enamul Haque Vs. Taimunissa, air 1967 Patna 344 ; and Smt. Aimerylussan Vs. Min Ahmad, 1983 AWC 997 . In the Bombay case (supra) the observations of Sye3d Ameer Ali's Mohammedan Law, 5th Edition, Page 479 have been quoted and on that basis it has been found that although the husband failed to prove the divorce which he alleged to have taken place 30 years ago, he did divorce the wife as from the date on which he filed the written statement. The case of Chandbi Vs. Bandesh (supra) has been relied in the two subsequent cases of Enamul Haque Vs. Taimunissa (supra) and Smt. Ajmerylussan Vs. Moin Ahmad (supra). Reference has been made to the decision in Asmat Ullah Vs. Smt. Khatun-Unnisa, AIR 1939 Allahabad 592 in Chandbi's case in which it was held that the statement in the written statement filed by the husband was an acknowledgement of Talak alleged to have been granted by him already and that the divorce would be held to have effect at least from the date upon which the acknowledgement was made. It would, thus, appear that even if through evidence the revisionist could not prove that he had divorced his wife 18 years ago, yet since he had made an averment in the written statement that he had divorced his wife that acknowledgement would take effect from the date of filing of the written statement.