CHANDBI EX Vs. BANDESHA

JUDGEMENT

(1.) THIS is a reference made by the learned Additional Sessions Judge of Osmanabad with a recommendation that the order passed by the learned Magistrate was bad in law and that it should be altered so as to allow maintenance to the wife only for a period of three lunar months from 6-4-1959, the date of the filing of the written statement by the husband.

(2.) THE parties to these proceedings are Maliomedans. It appears that the wife made an application for maintenance to the learned Magistrate under Section 488 of the Criminal Procedure Code, The husband resisted the application mainly on three grounds; (1 ). that he had already divorced the wife about 30 years ago and that he was not liable to maintain her; (2) that there was no neglect or refusal on his part to maintain her; and (3) that he had not sufficient income for giving separate maintenance to her. The learned Magistrate found in favour of the wife on all the three grounds and granted a sum of Rs. 10/- per month as maintenance allowance to her as against die husband. The husband there- after filed a revision application in the Court of Session at Osmanabad and submitted that the order of the learned Magistrate was bad in law. It was contended on his behalf that the statement by him in his written statement that he had divorced his wife operated as a divorce as from the date of the written statement since it was an expression of his intention to divorce her. The divorce, according to the husband, was thus effective from the date of the written statement which was 6-4-59 and it was contended that under Mahomedan Law the wife could claim maintenance only during the period of iddat which would be only three months. It was further contended that in so far as the learned Magistrate awarded maintenance without specifying the period for which it was to be paid, the order in that behalf was bad in law as it had the effect of awarding maintenance during the life time of the wife.

(3.) THE learned Additional Sessions Judge was inclined to accept the contention raised on behalf of the husband and relying upon the decision in Wahab-Ali v. Qamro Bi, AIR 1951 Hyd 117, he was of the opinion that the statement by the husband in his written statement that he had divorced his wife about 30 years ago, if the fact of such divorce was not proved as had been held by the learned Magistrate in this case, operated as a declaration of divorce as from the date of the written statement and that, in that event, the wife would be entitled only to maintenance for a period of Iddat i. e. for three lunar months. The learned Additional Sessions Judge, accordingly, referred the matter to this Court with the recommendation as aforesaid.